HomeMy WebLinkAbout2008/05/20 Agenda Packet
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CHULA VISTA
Cheryl Cox, Mayor
Rudy Ramirez, Councilmember David R. Garcia, City Manager
John McCann, Councilmember Ann Moore, City Attorney
Jerry R. Rindone, Councilmember Donna Norris, Interim City Clerk
Steve Castaneda, Counc; Imember
May 20, 2008
6:00 P.M.
Council Chambers
City Hall
276 Fourth Avenue
CALL TO ORDER
ROLL CALL: Councilmembers Castaneda, McCann, Ramirez, Rindone, and Mayor Cox
PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE
SPECIAL ORDERS OF THE DAY
. OATHS OF OFFICE
Anthony San Nicolas to the Commission on Aging
Mikki Zbikowski to the Commission on Aging
CONSENT CALENDAR
(Items 1 through 7)
The Council will enact the Consent Calendar staff recommendations by one motion,
without discussion, unless a Councilmember, 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
jill 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 April 8,2008,
Staff recommendation: Council approve the minutes.
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May 20, 2008
2. WRITTEN COMMUNICATIONS
Memorandum from Councilmember Rudy Ramirez requesting an excused absence from
the City Council Meeting of May 13,2008.
Staffrecommendation: Council excuse the absence.
3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE CLOSURE OF THIRD AVENUE FROM "E" STREET TO "G"
STREET ON JUNE 8, 2008 FROM 4:00 A.M. UNTIL 7:00 P.M. FOR THE DEWALT
THIRD AVENUE VILLAGE GRAND PRIX CALIFORNIA BIKE RACING STATE
CRITERIUM CHAMPIONSHIPS, APPROVING AN AGREEMENT BETWEEN THE
CITY OF CHULA VISTA AND BIG RING RACING FOR THE SPECIAL EVENT,
AND APPROPRIATING $2,095 TO THE FISCAL YEAR 2008/2009 POLICE
DEPARTMENT PERSONNEL BUDGET BASED UPON UNANTICIPATED
REVENUES
Big Ring Racing, in conjunction with the Third Avenue Village Association, is
requesting the closure of Third Avenue and portions of other streets for the DeWalt Third
Avenue Village Grand Prix California Bike Racing State Criterium Championships, a
professional cycling event, on Saturday, June 8th, 2008. (Communications Director)
Staff recommendation: Council adopt the resolution.
4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
CONSENTING TO THE ASSIGNMENT OF CHULA VISTA CABLE, LTD.,
FRANCHISE AGREEMENT TO NEXHORIZON BROADBAND OF SOUTHERN
CALIFORNIA, INC.
Subject to City Council approval, Chula Vista Cable Ltd. is transferring ownership of its
cable operations and infrastructure within the City of Chula Vista to NexHorizon
Broadband of Southern California Inc., (NexHorizon). The Franchise Agreement
between the City and Chula Vista Cable requires that the franchisee obtain City Council
approval prior to assigning the franchise. Adoption of the resolution authorizes the
assignment. (Conservation and Environmental Services Director)
Staff recommendation: Council adopt the resolution.
5 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A PARCEL MAP THAT PROPOSES TO VACATE TWO PUBLIC
DRAINAGE EASEMENTS WITHIN PARCEL I AND PARCEL 2 OF PARCEL MAP
NO. 19498
In January 2004, the Design Review Committee approved an application for a medical
office complex located at 955 through 973 Lane Avenue in Eastlake Business Center I.
The owner of the property, Otay Lakes Partners, LLC, is requesting that the City approve
a parcel map and vacate two drainage easements enclosed within the property. The two
drainage easements are no longer needed since the temporary drainage system that served
the property has been replaced by the permanent storm drain system. (Engineering and
General Services Director)
Staff recommendation: Council adopt the resolution.
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May 20, 2008
6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A BUDGET TRANSFER FROM THE EXISTING SOUTHWESTERN
CHULA VISTA STREET IMPROVEMENTS PROJECT (STL-306) TO FIRST
A VENUE IMPROVEMENTS BETWEEN NAPLES STREET AND PALOMAR
STREET (STL-303) AS NECESSARY TO COMPLETE THE PROJECT, REJECTING
THE LOWEST BID AND APPROVING THE SECOND LOWEST BID, AND
AWARDING THE CONTRACT FOR THE "FIRST AVENUE IMPROVEMENTS
BETWEEN NAPLES STREET AND PALOMAR STREET IN THE CITY OF CHULA
VISTA, CALIFORNIA (STL-303)" PROJECT (4/5THS VOTE REQUIRED)
On April 30, 2008, the Director of Engineering and General Services received sealed bids
for the project. The work to be done consists of the sidewalk improvements and related
street work along First Avenue between Naples Street and Palomar Street in the City of
Chula Vista. The work also includes all labor, material, equipment, transportation,
protection and restoration of existing improvements and traffic control necessary for the
project as shown on the drawings. (Engineering and General Services Director)
Staff recommendation: Council adopt the resolution.
7. ORDINANCE OF THE CITY OF CHULA VISTA DESIGNATING VERY HIGH FIRE
HAZARD SEVERITY ZONES AS RECOMMENDED BY THE DIRECTOR OF THE
CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION AS
DESIGNATED ON MAPS MAINTAINED IN THE OFFICE OF THE CITY CLERK
(FIRST READING)
Pursuant to Govemment Code Section 51179, the City must designate by ordinance, very
high fire hazard severity zones in its jurisdiction within 120 days of receiving
recommendations from the Director of Forestry and Fire Protection. The City received
the Director's recommendations in the form of a map identifying very high fire hazard
severity zones within Chula Vista. Adoption of the ordinance designates these zones as
required by State law. (Planning and Building Director/Interim Fire Chief)
Staff recommendation: Council hold first reading of the ordinance.
ITEMS REMOVED FROM THE CONSENT CALENDAR
ACTION ITEMS
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
any item, please fill out a "Request to Speak" form (available in the lobby) and submit it
to the City Clerk prior to the meeting.
8. CONSIDERATION OF APPROVAL OF A LAND OFFER AGREEMENT BETWEEN
THE CITY AND OV THREE TWO, LLC; JJJ & K INVESTMENTS TWO, LLC; AND
RR QUARRY, LLC FOR CONVEYANCE OF 160 ACRES TO THE CITY FOR
UNIVERSITYIREGIONAL TECHNOLOGY PARK DEVELOPMENT
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May 20, 2008
One of the key goals of the Chula Vista General Plan is the development of a
UniversitylRegional Technology Park. Successful implementation of the Land Offer
Agreement would complete the land acquisition necessary to accomplish this goal
through the receipt by the City of 160 acres (100 acres net) of developable land.
(Planning and Building Director)
Staff recommendation: Council adopt the following resolution:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AUTHORIZING THE MAYOR TO ENTER INTO A LAND OFFER
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND OV THREE
TWO, LLC; JJJ & K INVESTMENTS TWO, LLC; AND RR QUARRY, LLC
FOR CONVEYANCE OF 160 ACRES TO THE CITY FOR
UNIVERSITYIREGIONAL TECHNOLOGY PARK DEVELOPMENT, AND
ACKNOWLEDGING THE OFFER OF DEDICATION
COUNCIL WILL RECESS TO A RECEPTION FOR UNIVERSITY PARK AND
RESEARCH CENTER PARTNERS AT APPROXIMATELY 6:45 P.M.
PUBLIC COMMENTS
Persons speaking during Public Comments may address the Council on any subject
matter within the Council's jurisdiction that is not listed as an item on the agenda. State
law generally prohibits the Council from discussing or taking action on any issue not
included on the agenda, but, if appropriate, the Council may schedule the topic for future
discussion or refer the matter to staff Comments are limited to three minutes.
ACTION ITEMS (continued)
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
any item, please fill out a "Request to Speak" form (available in the lobby) and submit it
to the City Clerk prior to the meeting.
9. CONSIDERATION OF AMENDMENT TO TITLE 9 OF THE CHULA VISTA
MUNICIPAL CODE TO ADD A CHAPTER PROHIBITING THE RETAIL SALE
AND/OR DISTRIBUTION OF NOVELTY LIGHTERS
The City must continue to address our nation's fire problem. A ban on the sale of novelty
lighters will produce an immediate measurable effect in the reduction of property loss
caused by fires, deaths, and injuries - especially to children. A "Nationwide Call to
Action" began years ago and must carry on today. In 2006, the National Fire Protection
Association published that 1,642,500 fires were reported in the United States, up 3%
from 2005; that equated to 3,245 civilian fire deaths, 16,400 civilian fire injuries, $11.3
billion in property damage, and 89 firefighter deaths. Adoption of the ordinance will
assist in the reduction of fire incidents within our City. (Interim Fire Chief).
Staff recommendation: Council hold first reading of the following ordinance:
ORDINANCE OF THE CITY OF CHULA VISTA AMENDING TITLE 9 OF
THE CHULA VISTA MUNICIPAL CODE BY ADDING CHAPTER 9.23,
SECTIONS 9.23.010 THROUGH 9.23.060 TO PROHIBIT THE SALE AND/OR
DISTRIBUTION OF NOVELTY LIGHTERS
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May 20, 2008
OTHER BUSINESS
10. CITY MANAGER'S REPORTS
11. MAYOR'S REPORTS
12. COUNCIL COMMENTS
CLOSED SESSION
Announcements of actions taken in Closed Session shall be made available by noon on
Wednesday following the Council Meeting at the City Attorney's office in accordance
with the Ralph M Brown Act (Government Code 54957. 7).
13. PUBLIC EMPLOYMENT PURSUANT TO GOVERNMENT CODE SECTION 54957
Title: City Attorney
14. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE
TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b)
2 cases
15. PUBLIC EMPLOYEE DISCIPLINEIDISMISSAL/RELEASE PURSUANT TO
GOVERNMENT CODE SECTION 54957
ADJOURNMENT to the Regular Meeting of May 27, 2008 at 6:00 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 Devicesfor 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.
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May 20, 2008
DRAFT
MINuTES OF A REGULAR !'vIEETING OF THE
CITY COUNCIL OF THE CITY OF CHULA VISTA
April .8, 2008
6:00 PM.
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 Founh 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
PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE
SPECIAL ORDERS OF THE DAY
· OATHS OF OFFICE
Anthony Jemison to the Board of Ethics
Interim City Clerk Norris administered the oath of office to Mr. Jemison, and Deputy Mayor
Rindone presented him with a certificate of appointment.
· PRESENTATION BY !vIA YOR COX OF A CERTIFICATE OF RECOGNITION TO
OCEAN ESCALANTI UPON HER SUCCESS IN THE ELKS NATIONAL "HOOP
SHOOT FREE THROW CONTEST"
Mr. Martin Barros, Hoop Shoot Chairman for the local Elks Lodge, introduced and recognized
Ocean Escalanti on her first place success in the "Hoop Shoot Free Throw Contest". He stated
that Ocean would be representing the City in an upcoming national championship event in
Springfield, Massachusetts. Councilmember McCann then presented Ocean with a certificate of
recognition. Mr. Barros encouraged the community to send e-mails of support to Ocean on the
elks.org website under "Hoop Shoot", "Ocean Escalanti."
. PRESENTATION BY THE HEALTHY EATING, ACTIVE COMMUNITIES (HEAC)
INITIA TIVE OF THE CALIFORNIA ENDOWMENT ON PROGRESS TO DATE,
NEAR TERM GOALS AND SUSTAINABILITY
Recreation Director Martin introduced Rene Santiago, Deputy Director, San Diego County
Health and Human Services Agency who recognized Chula Vista for its leadership in raising
awareness of the environment and its impacts on health and childhood obesity. He congratulated
and thanked the City for helping protect the health of the public. Mr. Santiago then presented a
plaque of recognition on behalf of the County to Deputy Mayor Rindone, who accepted the
award on behalf of the City.
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April 8, 2008
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DR.. '-\.FT
SPECIAL ORDERS OF THE DA Y (Continued)
Recreation Director Martin then introduced Dana Richardson and Tanya Rovira-Osterwalder,
representing the South Bay Partnership with HEAC.
Ms. Rovira-Osterwalder spoke about the City's partnership with Healthy Eating, Active
Communities. She highlighted the goals and accomplishments of the partnership.
Mr. Richardson spoke about specific goals of the program, and some of the accomplishments
between HEAC and the City to-date that included attention to health in planning, establislunent
of policies and ordinances, such as smoke-free parks, and enhanced business practices. He
encouraged the City to look at establishing a Health and Wellness Commission.
Deputy Mayor Rindone stated that he looked forward to continued partnership with HEAC and
establishment of a Health and Wellness Commission in the future.
Councilmember Castaneda offered his assistance to HEAC with seeking future grants.
CONSENT CALENDAR
(Items 1 through 4)
Item 3 was temoved from the Consent Calendar for discussion by members of the public.
Deputy Mayor Rindone read a statement encouraging the Council to return to the standard of
decorum that the constituents expected and act responsibly.
1. APPROVAL OF MINlJTES of March 4 and March 6,2008.
Staff recommendation: Council approve the minutes.
2. WRITTEN COMi\1UNICATIONS
Letter of resignation from i'>.nn Tucker, member of the Commission on Aging.
Staff recommendation: Council accept the resignation and direct the City Clerk to post
the vacancy in accordance with Maddy Act requirements.
Item 3 was removed from the Consent Calendar.
3
4.
RESOLUTION NO. 2008-094. RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CHULA VISTA AUTHORIZING THE PURCHASE OF PRINT SERVICES
FROM DOWNTOwN COPY & PRINT, INC., DIEGO & SON PRINTING INC.,
BIRMINGHAM PRESS INC., SPIRIT GR..APHICS & PRINTING, INC.,
COMMERCIAL PRESS i\l"fD COPY WORLD IN ACCORDANCE WITH TER1\.1S
AND CONDITIONS OF CITY OF CHULA VISTA BID 4-07/08 FOR A ONE-YEAR
TERM BEGINNING JULY 1, 2008 AND ENDING JUNE 30, 2009 AND
AUTHORIZING THE PURCHASING AGENT TO APPROVE FIVE ONE-YEAR
EXTENSIONS OF THE TERM THROUGH JUNE 30, 2014
A request for proposal for print services was advertised and posted electronically. The
objective was to contract with vendors who could provide quality, customer service and
the best competitive pricing. Adoption of the resolution authorizes six vendors (two
local) to fulfill the City's printing requirements, except for stationary and business cards,
which will be bid separately. (Finance Director)
Staff recommendation: Council adopt the resolution.
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April 8, 2008
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DRAFT
CONSENT CALENDAR (Continued)
ACTION:
Mayor Cox moved to approve staffs recommendations and offered the balance of
tbe Consent Calendar, Items 1, 2, and 4, headings read, texts waived.
Councilmember McCann seconded the motion and it carried 5-0.
ITEMS REMOVED FROM THE CONSENT CALENDAR
Councilmember Castaneda stated that he would abstain from voting on Item 3, out of an
abundance of caution, due to the location of his property to tbe proposed events. At 6:44 p.m.,
Councilmember Castaneda left tbe dais.
3. A. RESOLUTION NO. 2008-091, RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CHULA VISTA APPROVING THE CLOSURE OF THIRD AVENUE
FROM "E" STREET TO "G" STREET FOR THE CINCO DE MAYO CELEBRATION
ON NUl. Y 4, 2008 FROM 4:00 A.M. TO 10:00 P.M., AND WAIVING THE BUSINESS
LICENSE TAXES FOR THIRD AVENUE VILLAGE ASSOCIATION AND
VENDORS PARTICIPATING IN THE EVENT
B. RESOLUTION NO. 2008-092, RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CHULA VISTA APPROVING THE CLOSURE OF THIRD AVENUE
FROM "E" STREET TO "H" STREET FOR THE CHULA VISTA LEMON FESTIVAL
ON AUGUST 10, 2008 FROM 4:00 A.M. TO 10:00 P.M., AND WAIVING THE
BUSINESS LICENSE TAXES FOR THIRD AVENUE VILLAGE ASSOCIATION
AJ'1D VENDORS PARTICIPATING IN THE EVENT
C. RESOLUTION NO. 2008-093, RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN CITY OF
CHULA VISTA AND THIRD AVENUE VILLAGE ASSOCIATION FOR SPECIAL
EVENTS FOR 2008
Third A venue Village Association (T A V A) is requesting permission for temporary street
closures for its annual Cinco de Mayo Festival on May 4, 2008 and Lemon Festival on
August 10,2008. (Communications Director)
Staff recommendation: Council adopt the resolutions.
Jack Blakely, Executive Director, Third A venue Village Association (TA VA) asked for Council
consideration of a fee reduction for police services for the upcoming Cinco de Mayo and Lemon
Festival events. The request was referred to staff to be placed on the next Council agenda.
Greg Mattson, President, T A V A, stated that the events were critical for T A V A and that the
organization was doing its part to seek additional funding, and he was hopeful that the events
would move forward.
ACTION:
Councilmember McCann moved to approve staffs recommendations and offered
Item 3, headings read, texts waived. Deputy Mayor Rindone seconded the motion
and it carried 4-0-1, with Councitmember Castaneda abstaining.
Councilmember Castaneda returned to the dais at 6:58 p.m.
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April 8, 2008
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DRAFT
PUBLIC COJ\;lNlENTS
There ,were none,
PUBLIC HEARINGS
S, CONSIDER.A.TION OF Al\1ENDfNG THE EASTLAKE III SECTIONAL PLANNING
AREA PLAN (PCM-07-21) ANTI ASSOCIATED REGULATORY DOCUMENTS,
Al\JD PLANNED COMMUNITY DISTRICT REGULATIONS AND LA:NTI USE
DISTRICT MAP FOR AN 18.4-ACRE SITE LOCATED AT THE SOUTH\VEST
CORi\JER OF OLYMPIC PARKWAY AND WUESTE ROAD WITHIN THE
EASTLAKE III PLANNED COJ\;lNllJNITY (WINDSTAR)
PRII Windstar Pointe Resort Master, LLC (Applicant/Developer) is proposing to develop
an apartment project, consisting of 494 units, on an 18.4-acre buildable portion of a 30,S-
acre site (Windstar Pointe Resort Project), The remaining 12,1 acres are dedicated open
space, The proj ect consists of amending Eastlake III Sectional Plarming Area Plan to
remove the existing "Active Seniors" designation for 18.4 acres and replacing it with a
new designation that allows for the development of a market-rate multi-family residential
project (Plarming and Building Director)
Plarming and Building Director Sandoval introduced the proposed Windstar Pointe Resort
project Associate Planner Steichen presented the project plan and amendments, Redevelopment
and Housing Manager Mills presented the affordable housing component of the project, and
Senior Community Development Specialist Kurz presented the terms of the agreement for the
proposed project
Eric Heffner, applicant, representing Windstar Corporation, stated that, although several public
meetings were held to introduce the proposed project and to address any questions"or concerns
by the public, nobody attended the meetings, Further, that there was no public opposition to the
project when presented before the Design Review Committee and Planning Commission, He
then spoke about the project plan, stating that the main clubhouse design portion of the project
would meet minimum Leadership in Energy and Environmental Design (LEE D) certification
requirements, He stated that the traffic studies had determined little traffic impacts; and active
seniors were a main component of the project and would not be excluded, Additionally, leasing
options would be offered to the Olympic Training Center to provide much needed housing for
traveling athletes, and temporary leasing would be offered to new City residents awaiting
transition to a home,
Mayor Cox opened the public hearing,
Theresa Acerro, Chula Vista resident, stated that the proposed apartment project would affect the
open space areas, and would impact traffic and public safety services. She suggested that the
Council focus more on businesses in the City in order to generate income,
Tracy Lamb, Chula Vista resident, representing the United States Olympic Training Center,
spoke in support of the proposed project, stating that Windstar Corporation would be a good
neighbor and an asset to the region, Furthermore, that leasing options by Windstar Corporation
to the Olympic Training Center for visiting atWetes would bring opportunities for the atWetes to
share and learn about the City.
Since no other members of the public wished to speak, Mayor Cox,closed the public hearing,
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April 8,2008
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DR.AFT
PUBLIC HEARlNGS (Continued)
Planning and Building Director Sandoval responded to some of the questions and comments by
the speakers, namely, a change from senior housing to multi-family housing, traffic mitigation
measures, appropriate use of the site, and financial issues, all of which had been analyzed and
addressed by staff.
ACTION:
Councilmember McCann moved to place the ordinance on first reading, and to
adopt Resolution No. 2008-095, headings tead, text waived.
A.
ORDINA1"iCE OF THE CITY OF CHULA VISTA APPROVING
A1vIENDMENTS TO THE EASTLAKE III PLA1'JN"ED COMMUN1TY
DISTRICT REGULATIONS Al'\il) LA.l"iD USE DISTRICTS MAP FOR 18.4
ACRES AT THE SOUTHWEST COR.N"ER OF OLYMPIC PARKWAY lu'\fD
WUESTE ROAD (FIRST READING)
B.
RESOLUTION NO. 2008-095, RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF CHULA VISTA CONSIDERlNG THE ADDENDUNI TO FEIR-
05-02; APPROVING AMENDMENTS TO THE EASTLAKE III SECTIONAL
PLANNING AREA PLAN, PUBLIC FACILITIES FINANCING PLAN A1'\fD
ASSOCIATED REGULATORY DOCUMENTS FOR 18.4 ACRES AT THE
SOUTHWEST CORNER OF OLYNIPIC PARKWAY ANTI WUESTE ROAD
ANTI APPROVING THE AGREEMENT TO POST SECURITY FOR
AFFORDABLE HOUSING OBLIGATION RELATED TO EASTLAKE III
BETWEEN THE CITY, THE EASTLAKE COMPANY, LLC AND PRII
WlNDST AR POINTE MASTER, LLC.
Mayor Cox seconded the motion and it carried 5-0.
OTHER BUSINESS
6. CITY MANAGER'S REPORTS
There were none.
7. MA YOR'S REPORTS
Mayor Cox spoke about the success of two local high schools in achieving recognition for their
. participation in a robotics competition, stating that last year's winner was Hilltop High School.
This year, Eastlake High School and the Alternative Education Program received national
recognition for their robotics, and would be traveling to Atlanta to compete.
8. COUNCIL COMMENTS
A. Councilmember Castaneda
April 8, 2008
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1-5
DRAFT
OTHER BUSINESS (Continued)
CONSIDER/\TION OF RECOMNfENDATION TO ADJUST THE FISCAL YEAR
. 2008/2009 MAYOR'S BUDGET
This proposal would adjust the Mayor's budget to two times that of one Council Office
budget.
Councilmember recommendation: Council adopt the following resolution:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
TO ADJUST THE FISCAL YEAR 2008/2009 MAYOR'S BUDGET
Councilmember Castaneda requested that 1) Item 8A be continued to the Council Meeting of
April 15, 2008, and placed under the "Council Comments" portion of the agenda, and 2) the
continuation of discussions of Mayor and Council Fiscal Year 2008/2009 Budget from the
March 6, 2008 and April 3, 2008 Council Workshops be placed on the April 15,2008 Council
Agenda, under the "Budget Workshop" portion of the agenda.
B. Councilmember Ramirez
DISCUSSION OF THE J'vlA YOR AND COUNCIL DEPARTMENT FISCAL YEAR
2008/2009 BUDGET
Councilmember Ramirez addressed the expenditures of the Mayor and Council budget over the
past several years, stating that he would be proposing approximately $300,000 in savings in the
Mayor and Council budget at the next Budget Workshop.
Deputy Mayor Rindone stated that he attended the recent American Lung Association's
"Evening in the Sky" event that honored the City for its efforts and leadership in clean air, Co2
reductions, and its work towards implementing "green" building standards.
At 7:53 p.m., Mayor Cox recessed the meeting to convene in Closed Session.
CLOSED SESSION
9. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION
PURSU.i'u'\!T TO GOVERNMENT CODE SECTION 54956.9(a)
Earl Jentz v. Deborah Seiler. (SDSC 37-2008-0080752-CU-MC-CTL)
This item was not discussed and no action was taken.
Deanna Morv. et a!. v. Citv ofChula Vista. et a!., United States District Court, Case No.
06 CV 1460 JAH(BLM)
Deanna Marv. et a!.v. City ofChu1a Vista. et at., United States District Court, Case No.
07-CV-0462 JLS (BLM)
No reportable action was taken on these items.
10. PUBLIC EMPLOYEE PERFORJ'vlANCE EVALUATION PURSUANT TO
GOVERNMENT CODE SECTION 54957
Title: City Attorney
No reportable action was taken on this item.
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1-6
April 8, 2008
DR-"..FT
ADJOUR1~MENT
At 10:10_p.m., Mayor Cox adjourned the meeting to the next Regular Meeting on April IS, 2008
at 6:0'0 p.m. in the Council Chambers.
----7
.-/ Lorraine Bennett, CMC, Deputy City Clerk
Page 7 - Council Minutes
April 8, 2008
1-7
I
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Councilman Rudy Ramirez
City Of Chula Vista
276 Fourth Avenue
Chula Vista, Ca 91910
619.691.5044 - 619.476.5379 Fax
MEMO
OlY OF
CHULA V/SfA
g;g;,!t~~~::!'m~.1r&~",;'jr~m::;"t'ilFif,~irH:;,tfJ'il~"h~~;i\\{jj;\~tJ~!Yt':l~~".'l:'~.n~~~~"!!jTIfu~~~~~i\1J
May 15, 2008
TO:
The Honorable Mayor & City Councilmembers
CC:
City Manager, City Clerk, City Attorney
FROM:
Councilman Rudy Ramirez If/-
RE:
Absence from 5/13/08 City Council Meeting
~~'\i'~'C~~t,;;'i'i;;:t.if;;;~.t';X~i!1~;:;"~:tr~i1lt~5ii~!~~~IiI'';;;:t1';'ii~!ff~&~,\1,$2';;?~~"1'&o~~~~~l!'e
Please excuse my absence, due to out of state travel, from the City Council Meeting of
May 13, 2008. Thank you.
~.
CITY COUNCIL
AGENDA STATEMENT
.:S:w~ CITY OF
~ (HULA VISTA
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
SUMMARY
i'viA Y 20, 2008 Item 3
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE CLOSURE OF THIRD
A VENUE FROM "E" STREET TO "G" STREET ON JUNE 8,
2008 FROM 4:00 A.M. UNTIL 7:00 P.M. FOR THE DEWALT
THIRD A VENUE VILLAGE GRAl'\!D PRlX CALIFORi'JIA
BIKE R.A.CING (CBR) STATE CRITERIUM
CHAMPIONSHIPS, APPROVING At'J AGREEMENT
BET'\VEEN THE CITY OF CHULA VISTA AND BIG RING
R.A.CING FOR THE SPEGAL EVENT, AND APPROPRIATING
$2,095 TO THE FISCAL ~YEAR 2008-2009 POLICE
DEPARTMENT PERSONNEL BUDGET BASED UPON
UNANTICIPATED REVENUES
DIRECTOR OF CO~l{(jICA TIONr
CITY i'vlA.NAGER ~\J\)
4/STHS VOTE: YES D NO ~
Big Ring Racing, in conjunction with the Third Avenue Village Association, is requesting
the closure of Third Avenue and portions of other streets for the DeWalt 3rd Ave. Village
Grand Prix CBR State Criterium Championships, a professional cycling event, on Saturday,
June 8th, 2008.
ENVIRONMENTAL REVIEW
The City's Environmental Review Coordinator has reviewed the proposed projects for
compliance with the California Environmental Quality Act and has determined that the
projects qualifies for a Class 4 categorical exemption pursuant to Section 15304( e) of the
State ofCEQA Guidelines. Thus, no further environmental review is necessary.
RECOMMENDATION
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDA nON
Not Applicable
3-1
fv{A Y 20, 2008, Iteml
Page 2 of3
DISCUSSION
Sanctioned by the California Bike Racing (CBR), the DeWalt 3rd Ave. Village Grand Pri,
CBR '-State Criterium Championships is a professional bicycling race opened to only
licensed, qualifying riders. This would be the first time it has been held in the City of Chula
Vista. To operate the bike race, Big Ring Racing, in conjunction with the Third Avenue
Village Association, is requesting that Third A venue be closed between "E" and "G" streets
from 4 a.m. to 7 p.m. on Saturday, June 8.
There are 14 individual races planned throughout the event. The race is a Criterium event
offering a variety of categories including professional, master, men, women, and junior
categories. Approximately 900 riders are scheduled to participate throughout the day. The
start and finish line will stage on the west side of Third A venue. The proposed event route
will head south on Third A venue, make a 180 degree turn to head north on Third Avenue,
make a right turn on "F" Street, a left turn on Church Street, a left turn on Davidson, and
finally turning back to Third A venue to the startlfinish line.
The first race starts at 7 a.m. and the last race will end approximately at 6 p.m. The street
closures would be in effect approximately from 4 a.m. to 7 p.m. to allow for the set up and
clean up of the area. The closure of Third A venue will affect the flow of traffic in the
downtown area. The event organizer will be required to coordinate with the City's Police
Department and prepare a traffic control plan to their specifications. The Police Department
will monitor the race route and closed traffic intersections in preparation of the race.
TIle street closure will also have an impact on the City's transit system. The Transit
Coordinator's staff has agreed to the closure as long as "E" and "G" streets remain passable
for traffic. The event organizer is aware of this stipulatiorr and will abide by it. Big Ring
Racing will abide by all other event logistics as outlined in the duties of conditions
(Attachment B).
The event is expected to draw approximately 1,500 spectators from the San Diego region, as
well as from the South California area. Spectator admission is free to the public. The
DeWalt 3rd Ave. Village Grand Prix CBR State Criterium Championships will promote
Chula Vista's Third Avenue Village District in a positive light and generate additional
commercial activity in the area.
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 that is the subject of this
action.
FISCAL IMP ACT
Staff estimates it will cost $2,095.44 to provide Police coverage at the event (calculated
at the Full Cost Recovery rate). An appropriation of $2,095.44 to the fiscal year 2008
Police Department Personnel budget will be required to offset the cost of the overtime
based upon the group paying the fee for service. This will result in no net impact to the
General Fund. No other city staff will be used in coordinating the event.
3-2
,.,
MA Y 20, 2008, Item---2-
Page 3 of3
A TT ACHMENTS
A. Group/Organization Waiver and Release of Liability
B. Duties of Big Ring Racing for the DeWalt 3rd Ave. Village Grand Prix CBR State
Criterium Bike Championships
Prepared by: Stephanie Kingston, Special Event Planner, Office a/Communications
3-3
~2/~5/2~~8 15:20
519SS57189
PACKAGING SOLUTIONS
PA.GE ~4/~4
A~dnfGBIV-t-A
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GTYOf
GlULA VISTA
GROUP/ORGANIZATION
WAIVER AND RELEASE OF LIABILITY
ORGANIZATION:G~OUPNAME: <(51 ( )(/...)9 r...c;..O:C
. I /
EVENT NAME: "dw.f[..ow,..) CA<<.IA 0.s7'.<f f-I(~
Q~ ?, ;<cY7Jr
(
~
EVENT DATE'
ON BEHALF OF THE ABOVE ORGANIZATION/GROUP, I expressly WAIVE, RELEASE and DISCHARGE the Cliy of
Chula \jista~ it.s officers, agents~ and employees or any other per50n from any and afl LlA01LlTY for any death, dis~bility,
personal injury, property damage, property theft or actions, including any alleged or actual r,egli'~ent act or omissions,
regardless of whether suoh act or omission is aCTIve or passive which may accrue to myself or members of my
organization/group or our heirs in connection with our participation in the above-described event. J fully understand and
acknowledge that the CITf OF CHU~ VISTA is 'relying on my representation that I have authorization to sign this
docum~nt ~nd that I wHI provid~ .a[1 membl?fS of my group :;:t completed copy of this \N~iver prior to our p3rtidpation
I expressly INDEMNIFY AND HOLD HARMLESS the City of Chula Vista, Its elected and appointed officials, officers,
agents and employees from any and all liabilities or claims made by me or my organization/group, my/our heir.=. and ~ny
other individuals or entitles as a result of, or in anyway related to, or arising from, the event identified herein, any of
my/our actions in conr:ection with my/our participation in this event except for those claims arising from the sole
negligence or sols willful conduct of the City, its officials, officers, employees, volunteers or other representatives. Such
indemnification includes liability settlements, damage awards, costs and attorney fees associated with any such claims,
I hereby certify that I have read this document, understand its content, and am authorized to sign this document on behalf
of all members of e gr up I represent
DATE' i, . 6 gr' /)
SIGNATU~~Y....4~
NAME: / ,4m 4reA- ( ~c:..---..
TITLE:
ADDRESS:
'.~'1ive:.....-
1M 0 f /f7<11-..J I'JJ; /f{,. ;('A,.1.<}-
S,nJ ..L11-J0, C- c;7--l;ff I
Return completed Special Event Application form, plus any additional attachments & information to:
City oT Chula Vista. Offir;e or Communir::ations . 276 Fourth Avenu9, Chl.!la Vista CA 91910 . Tel: 619~691-5296 Fax: 619-409-5448
FomlS must be submitted at least 45 dsys prior to :;vent stan date. Incomplete forms will not ~e processeo'.
3-4
ATTACHMENT 8
DUTIES OF THE BIG RING RACING
FOR
DEWALT 3RD. AVENUE VILLAGE GRAND PRIX C8R STATE CRITERIUM CHAMPIONSHIP
ON JUNE 8, 2008
1. Big Ring Racing shall provide for adequate traffic and crowd control, as determined by the
City's Police Department. The Police Department and Big Ring Racing volunteers will
marshal the route.
2. Big Ring Racing shall provide adequate traffic control equipment as determined by the
Police Department and Public Works Street Division. The event sponsor will be
responsible for renting or purchasing the equipment and delivering and removing it from
designated locations.
3. Big Ring Racing shall post and remove "No Parking" signs along the event route 48 hours
in advance of the race.
4. Big Ring Racing shall provide adequate litter control and trash receptacles during and
after the event as determined by the City's Conservation Department.
5. Big Ring Racing shall notify all property owners and tenants (including businesses and
residents) that will be affected by the street closure. The notification must be sent by first
class mail at least seven days prior to the event date.
6. Big Ring Racing will be responsible for sound measures to insure that the noise generated
by the event's activities does not reach an excessive level. Big Ring Racing will undertake
the following measures in order to implement this condition:
a. Big Ring Racing shall continually monitor noise levels of announcer booths, and other
sound-emitting devices and will make adjustments as needed.
7. Big Ring Racing shall ensure that the alleyways between "E" Street and "G" Street, east
and west of Third Avenue, shall remain open and unobstructed for the purpose of fire
apparatus access in the event of an emergency.
8. Big Ring Racing shall ensure "E" and "G" Streets remain open to traffic in order to meet
the requirements of the Fire Marshal and the Transit Division.
9. The Big Ring Racing shall provide, 10 days prior to the DeWalt 3,d Avenue Village Grand
Prix CBR State Criterium Championship, evidence of general liability insurance in the
amount of $3 million, in the form of a certificate of insurance and an additional
endorsement page naming the City of Chula Vista, its officials, officers, agents,
employees and volunteers as additional insured. The endorsement page must include
name of the insured, policy number and policy period.
10. Big Ring Racing shall provide adequate portable toilets and trash receptacles along the
race route and remove them after the event has concluded.
3-5
THE A TT ACHED AGREEMENT HAS BEEN REVIEWED
ANTI APPROVED AS TO FORt\!! BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALL Y SIGNED UPON APPROVAL BY
THE CITY COlJNCIL
}' U '
:_~~I ~ '"
, , -I. " ...........
cj!~ ,.. /<~ /-1 "-
Ann Moore (I
City Attorney
Dated:
, /
. u9
:S/I ( Ou
I '
Agreement between the City ofChula Vista and Big Ring Racing
F or Dewalt Third A venue Village Grand Prix
California Bike Racing (CBR) State Criterium Championship
3-6
~.Y 15,2008 08:41A STEVE LANDRY
MAY-l~-Z008 05:56 PM
000-000-00000
page 1
p, 02/04
AGREEMENT
Between the CITYOF CHULA VISTA, a California munkipal corporation and
BIG RrNG RACrNG
for
DEW AL T THIRD A VENUF VILLAGE GRAND PRIX
CALIFORNIA BIKE RACING (CBR) STATE CRITERIUM CHAMPIONSHlP
Recitals
A. Big Ring Racing, in conjunction with the Third Avenuc Village Association (T A V A).
plans to stage the Ikwalt Third Avenue Village Gnmd Prix California Bike RJicing
(CBR) State Criterium Championships, a professional cycling event. on June 8. 200&.
B. Big Ring Racing and TA V A wish to clo.., Third Avenue from E Street III G Street for
this Special Event.
Aareement
1. Big Ring R11cing' s Duties
Big Ring R11cing shall pertonn each of the duties described in Attachments A and B,
attached to this Agreement and incorporated into this Agreement by this reference.
2. Duties ofthe City
City Communications Staff (Scam shall work closely with Big Ring Racing to
fudlitate the planning and staging of this Special Event. Staff shall coordinate two
meetings between various City Departm~'tlts and Big Ring Racing to discuss all
logistics, requirements. concerns and i~sues of both the City and Big Ring Racing.
3. Term
This Agrccm.:ut IS effective upon the "xecution of the Mayor "OQ expire. on
December 31.2008.
4_ Tenninntion of Agreement
If Big Ring Racing fails to fulfill, in a timely and propel' rnlilllller, MY of Big Ring
Racing' 5 obligations or duties WIder this Agreement, or if Big Ring Racing violates
any of the covenanlS, agreements or stipulations of this Agreement, City has the right
to terminate this Agreement by giving at leu:;t five (5) days written notice to Big Ring
Racing of the termination before the effective date of the termination.
MAY 14,2008 OS:SOP
3-7
page 2
MAY 15,2008 08:41A STEVE LANDRY
MAY-14-2008 05:56 PM
000-000-00000
page 2
P.03/04
.5. Assignabil ity
Big Ring Racing shall not assign or transfer any interest in this Agreement without
prior written eot1sent of City.
6. Independent Contractor
Big Ring Racing and lit1y of the Rig Ring Racing's agents, employees or
representatives are, for all purpo:le:l under this Agreement. independent contractors
and :IhaII not be deemed to be employe". of City, and none of them shall be entitled
to any benefits to which City employees are entitled includiog but not limired to,
overtime, retirement benefits, worker's compensation benefits, injury leave or other
leave benetit~.
7. In,uIlUl.ce
Big Ring Racing represents that it and its staff and agent~ employed by it in
connection with the Special Event are prolcct<:c.l againsl the risk of loss by the
insurance coverage outlined in Attachmrnl B. Duties of Big Ring Racing, including
naming the City, it officials, officers, agents, employees and volunleer as additional
insured.
8. Hold HarTl1ks.,
Big Rin!! Racing agrees to defend, indemnify and hold harmless the City, it3 Elected
and appointed officials, officers, agents and employees pursuant to the
Group/Organization Waiver and Release of Liability e1<ccuwd by Big Ring Racing's
Race Representative,
9. Notices
All notices to be given pursuant to this A!;rcement must be in writing. All IlDtices to
be sent to any party shall be deemed to have be<:n prop<:r1y given or served if
personally served or deposited in the Uoited States mail, addressed to such party.
posta&, prepaid, registered or certified, with return receipt requested, at the addresses
identified in this Agreement as the places of husiness for each of lhe parties.
10. Entire Agreement/Amendments
nus Agreement, together with Attachments A and B, the Group/Organization Waiver
and ReleQSe of Liability, and any other written do<;umenl referred to or contemplated
in this Agreement embody the entire Agreement and understanding between the
partie.. Neither this Agreement nor any attachment or provision may be amended or
modified except in writing exoouWd by each party to the Agreement.
2
MAY lq,2UU~ o):)op
3-8
page 3
MAY 15,2008 08:41A STEVE LANDRY
MAY-14-2008 05:56 PM
000-000-00000
page 3
P,04/04
. ,11. Capacity of Parties
Each signatory and party to this Agreement warrants and represents to the other party
that it has legal authority and capacity and direction from il.~ principal to enU:T into
this Agreem<:nl, and that all resolutions or other actions have been taken so as to
enable it to enter intI) this Agreement.
Dllted;
City of Chula Vista
By:
Cheryl Cox
Mayor
Attest:
Donna Norris, CMe
Interim City Clerk
Approved as to form:
Ann Moore
City Attorney
DIlled:~.. .
Big Ring Racing
j:\At~y\f:LlSA\A(jREEM€NTS\Aard'A'l1V'.I'tI ft1t Sj1I!ciaI E\'cm With 8\& Rina as:;ing F
J
MAY 14,2008 05:50~
3-9
p;lge 4
RESOLUTION NO. 2008-
RESOLUTION OF THE CITY COlJNCIL OF THE CITY OF
CHULA VISTA APPROVING THE CLOSURE OF THIRD
AVENUe FROM "E" STREET TO "G" STREET ON JlJN"E 8,
2008 FROM 4:00 A.M. UNTIL 7:00 P.M. FOR THE DEWALT
THIRD A VENU"E VILLAGE GRAt'lD PRIX CALIFORt'fLA.
BIKE RACING (CBR) STATE CRITERIUM
CHAMPIONSHIPS, APPROVING AN AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND BIG RING
RACING FOR THE SPECLA.L EVENT, AND APPROPRLA.TING
$2,095 TO THE FISCAL YEAR 2008-2009 POLICE
DEPARTMENT PERSONNEL BUDGET BASED UPON
UNAJ'iTICIPATED REVENUES
WHEREAS, Big Ring Racing is the event sponsor for the Dewalt Third Avenue Village
Grand PIi'i. California Bike Racing (CBR) State Criterium Championships, a professional cycling
event (Special Event); and
WHEREAS, Big Ring Racing has requested the closure of Third Avenue from "E" Street to
"G" Street on !tme 8, 2008 from 4:00 a.m. until 7:00 p.m. tor the Special Event; and
WHEREAS, Big Ring Racing and the City of Chula Vista seek to enter into an agreement
for the Special Event; and
WHEREAS, this agreement provides the City with indemnification for claims arising from
the Special Event and outlines Big Ring Racing's insurance requirements and its duties governing
the operation of the Special Event.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City ofChula Vista as
follows:
I. That it approves the closure of Third A venue between "E" Street and "G" Street on
June 8, 2008 from 4:00 a.m. until 7:00 p.m. for the Dewalt Third Avenue Village Gland Prix
California Bike Racing (CBR) State Criterium Championships, a professional cycling event.
2. That it approves an Agreement between the City of Chula Vista and Big Ring
Racing for the Special Event.
3-10
Resolution No. 2008-
Page 2
J. That it appropriates $2095 to the Fiscal Year 2008-2009 Police Department
persoIli1el.budget based upon unanticipated revenues.
Presented by:
Approved as to form by:
12 P el
Director of Communications
.- "/ /
1.:1 ./1 ~
/J~----../!o\ . A..t/'~-v
iilln Moore
City Attorney
-<
([1'-
3-11
CITY COUNCIL
AGENDA STATEMENT
.:$\I{~ CITY OF
~ (HULA VISTA
Mil. Y 20, 2008, Item d
-,---
ITEM TITLE:
RESOLUTION CONSENTING TO THE ASSIGNMENT OF
CHULA VISTA CABLE, LTD., FRi'u"iCHISE AGREEJYIENT
TO NEXHORlZON BROADBAND OF SOUTHERN
CALIFORL'\il..A., me.
DIRECTOR OF CONSERVATION & ENVIRONMENTA~
SERVICES ~
ASSIST i'u'iT CITY IvL;.NAGER II~ ~I\ ~ n
CITY MANAGER <;. ~ nJYV
- I
4/5THS VOTE: YES D NO 0
SUBMITTED BY:
REVIEWED BY:
SUMMARY
Subject to City Council approval, Chula Vista Cable Ltd. has transferred ownership of its
cable operations and infrastructure within the City of Chula Vista to NexHorizon Broadband
of Southern California Inc., (NexHorizon). Sections 6.c. of the Franchise Agreement.
between the City and Chula Vista Cable (Attachment A) require that the Franchisee obtain
City Council consent prior to assigning the Franchise. Staff is recommending that Council
approve the request by Chula Vista Cable to assign the Cable Franchise to NexHorizon.
BACKGROUND
On July 21,1987 the City Council passed a resolution notifying the public of the
Council's intention to hold a public hearing on August 18, 1987 to consider the granting
of a cable franchise agreement to Ultronics Inc. The City conducted the public hearing
and first reading of the proposed Agreement on August 18 and a second public hearing
was conducted on September 8, 1987. The final reading was September 15, 1987. The
City of Chula Vista entered into a Cable Franchise Agreement with Ultronics Inc., on
November 1, 1987. The City approved a request by Ultronics to transfer the Agreement
from U1tronics to a Chu1a Vista Cable LId, on May 12, 1989 and that Agreement remains
in force today. Section 6.c. of the Franchise Agreement allows the Grantee to assign the
Franchise, subject to City Council consent. That Section states that the City's consent.
"may not be arbitrarily refused, provided, however, the proposed assignee must show
financial responsibility and must agree to comply with the provisions" of the Franchise
Agreement.
At the request of Chula Vista Cable, the City began negotiations to extend the Franchise
with Chllla Vista Cable in 2004. At Council direction staff concluded those negotiations
4-1
(
MAY 20,2008, Item ",.
Page 2 of 3
in late 2004, which included a Franchise extension for an additional ten years through
November 30, 2020. Due to G'1e tragic death of the founder of the company, and the
subsequent re-organization of the company, Chula Vista Cable did not approach the City
to formally process the Agreement until June of 2007. At that time, Chula Vista Cable
and NexHorizon Communications Inc. approached the City about assigning the Chula
Vista Cable Franchise Agreement to NexHorizon Communications.
Additionally, during that time, Assembly Bill 2987 established the California Digital
Infrastructure and Video Competition Act of 2006 (DIVCA). The Act became effective
JanuaTY I, 2007 and provides a mechanism for cable service providers to receive a
statewide video franchise. NexHorizon and Chula Vista Cable have stated their
preference to work with the City to assign the existing Franchise and execute a Public
Benefit Agreement that provides consumers and N exHorizon with the benefits
established in the 2004 Agreement.
ENVlRONMENT AL REVlEW
The Environmental Review Coordinator has reviewed the proposed activity, assignment
of a cable franchise agreement, 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. Although
environmental review is not necessary at this time, each individual construction project
conducted by the applicant mav have environmental review once the projects are further
defined and a CEQA determination will be completed prior to installation of any new
facilities.
RECOMMENDA nON
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDA nON
Not applicable.
DISCUSSlON
Staff has contacted communities served by NexHorizon to verify their capacity to provide
quality service and checked with the FCC to review any past complaints. The record is
generally good with some complaints however, the markets they currently operate in are
very small and individual service issues are proportionally far more significant.
NexHorizon's commitment to updating the Chula Vista Cable infrastructure, the quality of
their products and service in Chula Vista is strong. Its is worth noting that NexHorizon has
already begun to initiate improvements in service training and quality during the
management transition phase of their relationship with Chula Vista Cable. The practices
and commitments made by the proposed owner, as well as state and federal regulations
provide a structure for staff to work with NexHorizon to continue to improve customer
service and consumer protections. NexHorizon has emphasized their commitment to
customer service and understands that Staff will enforce consumer protections h'1 the
NexHorizon Agreement that are equivalent to or better than industry, state and federal
standards. NexHorizon has also demonstrated the fmancial capacity to upgrade operations
4-2
I
f;,
MAY 20,2008, Item '!
Page 3 of 3
and customer service during the transition period and provide additional capital that will
improve the range and quality of services provided to their Chula Vista customers.
NexHorizon states that they will "hire a minimum of 100 people ",ith various skill sets from
Customer Service to Engineering," and plans to work with the City and local college to
recruit most, if not all, its employees from the Chula Vista area. If Council approves the
resolution assigning the existing Franchise Agreement, staff ,vi!! prepare a Public Benefit
Agreement and return to City Council to provide Council and the community ",ith the
opportunity to review and comment on the proposed Agreement.
In connection with seeking the City Council's consent to the assigrunent, NexHorizon has
satisfied the requirements of Section 6.c. of the Franchise Agreement. Specifically,
NexHorizon has demonstrated to City staff its financial responsibility and abilitY to assume
the franchise, and has agreed to comply with the terms of the Franchise Agreement. The
assigrunent of the Franchise Agreement leaves the business terms of the Agreement intact,
including the Franchise Fee payment, which is based on 5% of the cable services gross
receipts, (Section l.h. Ultronics Agreement).
DECISION MAKER CO~'FLICT
Staff has reviewed the decision contemplated by this action fu,d 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 IMPACT
Council's adoption of this resolution will have no net impact to the City's general fund.
Staff will return to Council with a complimentary Public Benefit Agreement that will
describe the potential financial and service benefits, as well as any potential costs at that
time.
ATTACHMENTS
A. Ultronics Agreement & Public Notice
B. Agreement for Assignment of Cable Television Franchise
Prepared by: Michael Meacham, Director, Conservation & Environmental Services
4-3
/\+tD-C-.I"'l ~ ._~'>_=:(;"
l\GREEMENT BET'IIEEN TF;E CITY OF CHULA VIST.l\ i'lID
ULTRONICS, INC. , .'. OLEOR-IEA CrnPOPJI.TION,
GRh'lTI..NG TO ULTRONICS, INC. TEl" NON-EXCLUSIV3
RIGHT, PRIVIUGE AND FR?NCEISE TO LAY ;"lill USE
LINES, WIRES, COAXI.'L C.".3L2 l'llD APPl1RI'ENi'llCES FOR
TRANSMITTING, DISIRI3l1TING .AJ:;u SUPPLYING CABLE
TELEVISION SER\TICE ALONG, ACROSS AND f}PON THE
POBLIC STREETS, WJl.YS, J>.LLEYS ANTI PLACES WITHIN
THE CITY OF CHOLA VISTA
The parties to
hereinafter referred to as
as "Grantee."
this agreement are
"City" and Oltronics,
the City of Chula Vista,
Inc., hereinafter referred to
Section 1.
DEFINITIONS.
For the purpose of this frarlchise, the following terms, phrases,
words, and their derivations shall .have the meaning given herein. wnen not
inconsis1:ent with the context, words used in the present tense include the
future, words in the plural number include the singular number, and words in
the singular nwnber include the plural nllJPDer. Provisions of this franchise
shall be construed in accordance with the laws of the State of California.
a. "City": The City of Chula Vista, a municipal corporation of the
State of California, in its present incorporated form, or in any
later reorganized, consolidated, enlarged or.reincorporated form.
b. "Council": The present governing body of the City or any future
board constituting the legislative body of the City.
c. "Franchise Property": All property owned, installed or used
under authority of this franchise.
d. "Grantee": The person or corporation to whom or which this
franchise is granted by the Coun~il, and the lawful successor or
assignee thereof, and who or which has filed with the City an
acceptance referred to in Sections 3 hereof.
e. "Street": The surface of, and the space above and below any
puo~1C street, road, highway, freeway, lane, alley, court,
sidewalk, parkway, easement, drive or other public place now or
hereafter existing as such within the City.
f. "Cable Television sysj;grn": Shall mean a system of antennas,
cables, wires, lines, towers, wave guides, or any other
conductors, converters, equipment or facilities 1 designed and
constructed for the purpose of producing, receiving, amplifying
and distributing, audio, video and other forms of electronic. or
electrical signals.
r u k'7 < (j i I
4-4
g. "Subscribers1': J...ny person or entity receiving for any ?uq::ose
the Cable Television system service of the franchise herein.
h. "Total Gross Receipts": ./my and all compensation in any form
rcid by the subscriber to Gle Grantee arising from the sale of
basic and pay Cable Television service to customers within the
corporate limits of the City. Without limitation, total gross
receipts shall not include (a) uncollectible amounts; (b)
refunds or rebates made by Grantee; (c) revenues received as a
direct reimbursement of Grantee' s expense in the operation of
any access charcTlels; (d) sales, ad valore.'TI, or other types of
. add on' taxes, levies or fees calculated by gross receipts or
gross revenues which Grantee might have to payor collect for
Feeeral, State or local government (exclusive of franchise fees
provided for herein); (e) revenues received for advertising on
Grantee's local origination channel, to the extent of Grantee' s
direct costs of operation of Grantee's system; and (f)
non-operating revenues such as income from operations not
requiring use of a franchise or gain from sale of an asset.
Section 2.
FRANCHISE GRANT.
The franchise hereby granted by the City authorizes Ultronics, Inc.,
Grantee, subject to the prOVisions herein contained, to engage in the business
of operating and providing a Cable Television System in the City, and for that
purpose to erect, install, construct, repair, replace, reconstruct, maintain
"md retain in streets such poles, wires, cable, conductors, ducts, conduit
aults, manholes, amplifiers, appliances, attachments, and other property as
may be necessary and appurtenant to the Cable Television systerrs; and, in
addition, so to use, operate and provide similar properties rented or loaned
from other persons, firms, or corporations, for such purpose.
Section 3.
DURATION OF GAANr.
a. The Franchise granted hereunder shall not become effective until
the happening of following events:
(I) The written acceptance hereof by the Grantee accepting all
of the tern>.5 and conditions of this Franchise and agreeing
to be bound thereby, delivered to the City in a form
approved by the City Attorney.
(2 )
The filing
comprehensive
Section 15(a)
wi th the
liability
hereof.
City of evidence of a general
insurance policy .as required in
b. The term of this Franchise shall be twenty-three (23) years,
commencing on the effective date of the Franchise as provided in
paragraph (a) or this section, prOvided, however, that the term
of this Franchise may be exte.Dded in accordance with the
procedures set forL~ below:
-2'4-5
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(1) The provisions of this 2ranchise snaIl be. subject to
renegotiation every five (5) years during the term of the
Franchise, including any extensions thereof. These
renegotiation opportunities Shall be referred to as
"renegotiation intervals." Renegotiation may be initiated
umn written notice criven bv the Citv or Grantee to the
other not less than one (l)~ year prior to the particular
renegotiation interval. .~.ny renegotiation necessary shall
be directed towards effecting alterations in the terms and
conditions of this Franchise to reflect any significant
changes which occurred during the interim period.
(2) If any renegotiation prior to the end of the term,
including extensions of this Franchise, results in
agreement between the City and Grantee, or if,
alternatively, both parties agree, at any renegotiation
interval as defined above, that no renegotiation is needed
or required, then the term of this Franchise shall be
extended for an additional five (5) years by an appropriate
action of the City Council. If any renegotiation fails to
result in agreement, the term shall not be extended unless
the City Council so specifies by appropriate action.
(3) This Franchise shall terminate without further action by
the Ci ty at the end of the term, inclUding extensions, of
this Franchise; provided, however, the total term of this
FranChise, with extensions, shall not exceed fifty (50)
years from the effective date of this ordinance; provided,
further, that the City Council, at or before the end of the
term, or the term as extended, retains the exclusive power
to grant a further extension, or a renewal of this
Franchise, or a new Franchise to Grantee.
c. The Franchise may be terminated at any time by the City Council
in the event the Council shall have found, after notice and
hearing, that:
(1) The Grantee fails to comply with any material provlslon of
this Agreement; however, termination proceedings shall only
be commenced in a public meeting affording due process, if,
after thirty (30) days from written notification from the
City stating with particularity the grounds upon which the
City relies, Grantee fails to correct stated violation... .Ln
the event the stated violation is not reasonably curable
within thirty (30) days, termination proceedings shall not
be commenced if the Grantee provides, within the said
thirty (30) days, a plan, satisfactory to the City Manager
to remedy the violation and continues to demonstrate goad
faith in seeking to correct said violation.
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(2.) It shall not be a failure to comolv with a material
provision of this ordinance for Grantee to comply wiL~
any rules and regulations of tc.':1e Federal
Communicatior~ Commission, or any Federal or State
regulatory commission or agency having jurisdiction
over Granteers operatior~ or any Federal or state law.
(b) The Cour1cil's finding of materiality is subject to a
de novo review by a court of competent jurisdiction; or
(2) .1v:ly provision hereof has become invalid or unenforceable,
and the Council finds that such provision constituted a
material consideration to the grant of this Franchise.
The Grantee shall be given at least thirty (30) day's notice of any
termination proceedings.
Section 4.
RA.TES.
The Grantee may establish its own rates and charges.
section 5.
FRANCHISE PJI.YMENTS.
a. The Grantee shall pay annually to the City, during the life of
this franchise, and at the times hereinafter specified, a sum of
three percent (3%) of the total gross receipts of the Grantee
until January, 1990, after which the rate shall be the greater
of three percent (3%) of the total gross receipts of Grantee or
the rate then charged Cox Cable for its franchise, subsequent to
the periodic renegotiation of rate provision in Cox's
franchise. Such payment by the Grantee shall be in lieu of any
occupation tax or any other tax based upon the gross receipts of
Grantee.
b. The Grantee shall file with the city within ninety (90) days
after the expiration of any calendar year during' which this
Franchise is in force, aver ified statement showing in
appropriate detail the total gross receipts, as defined herein,
of Grw~tee, its successors or assigns; during the preceding
calendar year. It shall be the duty of Grantee to pay to the
City, within fifteen (15) days after the time for filing such
statements, the remaining sum due for the calendar year covered
by such statements. This statement shall be the basis for
quarterly estimated. payments as deposits on the franchise
payment due for the following year. Such quarterly estimated
payments are to be rode to the City on or before June 30,
Septel1'ber' 30, aDd December 31 of eac..h calendar year for that
year's estirnated payments. Each estimated payment sha'll be
equal to twenty five percent (25%) of the previously filed
verified statement, rounded to whole, even dollars. The fourth
payment due after the filing of the annual verified statement
shall adjust for all estirnated payments made for that calendar
year.
-44-7
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c. In the event Grantee fails to make G~e payment for this
Franchise on or before t..i1e date due as hereinabove provided,
Grantee shall pay as additional consideration a sum of money
equal to one percent (1%) of the amount due for each month or
fraction thereof during which the payment is due and unpaid, as
interest and for loss of use of the money due.
d. No acceptance of anypo.yment shall be construed as an accord
that the amount paid is, in fact, t..i1e correct amount, nor shall
such acceptance of payment be construed as a release of any
claim which the City may have for further or additional sums
payable under the provisions of this section.
section 6.
LIMITATICNS OF GRANT.
a. No privilege or exemption is granted or conferred by this
Franchise except t..~ose specifically prescribed herein or by law.
b. Any privilege claimed under this franchise by the Grantee in any
street shall be subordinate to any prior lawful occupancy of the
streets, or other public property; provided, however, Grantee
does not hereby waive any rights it has acquired vis-a-vis third
parties as a result of Grantee's own proper occupancy.
c. This Franchise is a privilege to be held in personal trust by
the original Grantee. It cannot in any event be transferred in
part, S'1d it is not to be sold, transferred, leased, assigned,
or disposed of as a whole, whether by forced sale, merger,
consolidation, or otherwise, without prior consent of the City
expressed by Resolution, unless pursuant to transfer of
ownership of Grantee as provided in Section 9 hereof, and then
only under such conditions as may be therein prescribed,
provided, however, that no such consent shall be required for
any transfer in trust, mortgage, or other hypothecation; as a
whole, to secure an indebtedness. The said consent of the City
may not be arbitrarily refused, provided, however, the proposed
asSignee must show financial responsibility and must agree to
comply with the provisions of this agreement.
d.
Time is of the
be relieved of
prOVisions by
compliance.
essence of this franchise. The GLa~tee shall not
its obligation to comply promptly with any of its
S'1Y failure of the City to enforce prompt
e. Any right or power in, or duty impressed upon, any officer,
employee, department, or board of the City, is subject to
transfer by the City to any other officer, employee, department
or Board of the City.
-5-
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f. Grantee is subject to all requirements of the City ordinances,
rules, regulations, and specifications of the City, not
inconsistent with this Franchise, heretofore or hereafter
enacted or established, including but not limited to, those
concerning street work, street excavations, use 1 removal and
relocation of property within a street, and other street work.
g. 'This Franchise does not relieve the Grantee of any obligation
involved in obtaining pole space from any department of Lr,e
City, the utility companies or from others maintaining poles in
streets.
Section 7.
RIGHTS RESERVED TO CITY.
a. 'There is hereby reserved to the City every right and power which
is required to be herein [",served or provided by any ordinance
of the City, and the Grantee, by its acceptance of this
Franchise, agrees to be bound thereby, ,and to cOlTI!?ly with arlY
action or requirement of the City in its exercise of any such
right or power, heretofore or hereafter enacted or established.
b. This franchise shall be non-.exclusive, and neither the granting
of this Franchise nor any of the provisions contained herein
shall be construed to prevent the City from granting any
identical, or similar franchise to any person or corporation
other than the Grantee.
Section 8.
SERVICES TO CITY .~ PUBLIC SCHOOLS.
Grantee shall at its own expense and without any cost to the City
whatsoever, provide and maintain the following facilities and services to the
City and Public Schools as hereinafter provided:
a. One active cable television connection to each City unit
designated by the City Manager such as police stations, tlre
stations, public libraries and other City facilities within
Grantee's franchise area that require an aerial drop of 150 feet
or less from the existing cable television distribution system.
Grantee shall not be required to provide the cable television
distribution system within said facilities;
b. One active cable television connection to each public elementary
school site, secondary school site, college or university site
and educational administrative site within .Grantee's Franchise
area that require an aer ial drop of 150 feet or less from the
existing cable television distribution system. Grantee shall
not be required to provide the cable television distribution'
system within said facilities;
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c. GranteE: shall not cha.rgE: the City or pt:blic schools any fee for
providing the distr ioution of video illEges or audio signals to
any of the buildings so cornected;
.. d. In the event that the City or school system desires additional
service, the Grantee shall provide the basic cable outlet,
. services and hardware, charging the Ci ty or school system t.he
act.ual variable cost to Grantee of such services.
e. Grantee shall make available wit.hout cost one channel for use by
Local Governments in all of i t.s San Diego franchises for t.he
distribution of programming in t.he public interest. Grantee may
provide interconnection of such channel with all ot.her cable
Television Syst.ems operating pursuant to a franc.'1ise' granted by
City. If Grantee operates a remote or permanent vehicle and
equipment for telecasting and video taping, Grantee shall
provide origination service to City at such reasonable times and
costs as are mutually agreed upon.
f. Grantee shall llEke available without cost, one channel for use
by Public Schools in all of its San Diego franchises. As
required by Grantee, the Public Schools shall save and hold
harmless Grantee from any uses made bY the Public Schools in the
distribution of programming.
g. City shall save and hold harmless Grantee from any uses made by
the City in the distribution of progr~~ing in the public
interest as provided for in Subsection (e) of this section.
h. Grantee shall make available without cost, one channel for
public or community access in all of its San Diego franchises in
accordance wit.h reasonable rules, regulations and conditions,
provided, however, that to the extent that. the Federal
Communications <.bmmission (FCC) exercises jurisdiction as
determined by Federal statute or decisional law to be valid and
appropriate, said access rules shall govern.
Section 9.
TR'iliSFER.OF OWNERSHIP OR CCNTROL OF GRANTEE.
In the event t~e Grantee is a corporation; prioe approval of the City
Council, expressed by resolution, shall be required when ownership or control
of thirty percent (30%) or more of the voting stock of Grantee is acquired by
a person or a group of persons acting in concert, none of whom already own or
control thirty percent (30%) or more of the voting stock, singUlarly or
collectively.
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Section 10.
ES~"'BLISHMENT OF SERVICE.
Installation of a Cc...'J5l System shall be cormnenced within one hundred
eighty .( 180) days after the effective ate of this franchise, and extensions
and service pursued wis~ due diligence ~~ereafter. Failure to so comrrence and
diligently pursue to completion shall be grounds for termination of this
franchise.
Section 11.
U:X::ATION OF FPANCEISE ProPERTIES.
a. Franchise property shall be constructed or installed in streets
only at such locations ~"d in such manner as shall be a~roved
by the Superintendent of Streets, acting in the exercise of
reasonable discretion.
b.
The Franchise property shall be
subdivisions which are subject to
Vista Municipal Code.
placed underground in all
the provisions of the Qllila
Section 12.
ABANOONMENT OF SERVICE.
a. After Grantee has established service pursuant to this
Franchise, such service shall not be suspended or abandoned in
the whole of or a'1Y part of the Franchise area unless the
suspension or abandonment is authorized by the City Council.
b. Whenever Grantee shall file with the City Council. a written
application alleging that the public interest, convenience and
necessity no longer require that Grantee furnish service
pursuant to this ordinance in the whole of or in any part of the
Franchise area, the City Council, at a public hearing, shall
take evidence upon that question and shall make a finding with
respect to it. Notice of the hearing shall be given by Grantee
in writing to each Subscriber in the part of the Franchise area
in question at least fifteen (15) day prior to the date
scheduled for the hearing. If the City Council shall find that
the public interest, convenience and necessity no longer
requires that Grantee furnish service, the City Council, after
hearing as provided herein, shall authorize suspension or
abandonment of service upon such reasonable terms and conditions
as may be prescribed by the City Council.
_64.-11
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section 13.
DISPOSITION
DISTRl3UTICN
r-":-..ANCHISE.
OF' F'R~.NCEISE ?ROPERT'Y OR C'WLE
SYSTEM UPON EXPIRATION OR TERMINl'.TION OF
a. UfX}n tbe termination of this Fra.'1chise UI1der Section 3 or 11
hereof, the Ci ty may purchase the cable television system, or
arlY part t.f-Jerecf, in accordance wi th subsection (b) of t.l1is
section. If t.~e City elects to purchase the system, or any part
therecf, the Grantee shall promptly execute, upon receipt of the
fair market value purchase price, all appropriate documents to
transfer title to the City. Upon acquisition of ~,d payment for
the system, or any part thereof, the Grantee shall cooperate
with the city, or with any other person authorized or directed
by the City to operate the system, in maintaining continuity of
service. Nothing herein is intended as a waiver of any other
rights the City may have.
b. The purchase price to the City for the Grantee's property shall
be determined by agreement or by arbitration as provided in
subsection (e) herecf. The st~,dard for determining the price
to be paid for the property so acquired shall be that provided
by law affecting the fair market value of similar properties
applicable on the effective date of the purchase. If the City
does not purchase the system, the Grantee shall deal wit.'l the
part of the system located in the streets in accordance with
provisions of subsections (c) and (d) of t.l-,is section.
c. In the event that (l) the use of any Franchise property is
discontinued for any reason for a continuous period of twelve
(l2) months; or (2) the Franchise has been installed in any
street without complying with the requirements of this
Pranchise; or (3) the Franchise has been terminated,
surrendered, cancelled or has expired, and City has not
exercised its rights pursuant to subsection (a) of this section,
the Grantee shall promptly remove from the street all such
property other than any Which the City Engineer may permit to be
abandoned. in place. . In the event of ani such removal, the
Grantee shall promptly restore the street or other area from
which such property has been. removed to a condition satisfactory
to the City Engineer.
d. Franchise property to be abandoned in .place shall be abandoned
in such manner as the City Engineer shall prescribe.
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e. L'1 the event that arbitra.tion is necessary to determine the
purchase price to L~e City for the Grantee's proper tv the
parties may agree upon one arbitrator, but in the event- that
they cannot agree, there shall be three, one n~"ed in writing by
each of t.l-Je parties within fifteen (15) days after demand for
arbitration is given and a third chosen by the two appointed.
Should eit.l-]er party refuse or neglect to join in the appointment
of the arbitrator(s) or to furnish the arbitrator(s) with a'1Y
papers or information demanded, the arbitrator(s) are emPOwered
by bot.f] parties to proceed ex parte. If there is on-ly one
arbitrator, his decision shall be binding and conclusive on the
parties, and if there are three arbitrators t.l-Je decision of any
two shall be binding and conclusive. A judgment confirming the
award of the arbitrator(s) may be rendered by any Superior Court
having jurisdiction. Arbitration hereunder shall be governed by
the provisions of the California Arbitration Act, Section 1280
through 1294.2 of the Code of Civil Procedure. Bach party shall
bear the cost of its own appointee and bear the cost equally for
any arbitrator appointed by both parties.
Section 14.
CHANGES REQUIRED BY PUBLIC IMPROVEMENTS.
The Grantee shall, at its expense, protect, support, temporarily
disconnect, relocate above or below ground at Grantor's option in the SaID2
street, alley, or public place, or remove from any street, alley or public
place, any Franchise property when required by the City Engineer by reason of
traffic conditions, public safety, street vacation, freeway and street
onstruction, change or establishment of street grade, installati~n of sewers,
drains, water pipes, power lines, signal lines, and tracks and of any other
type of structures or improvements by governmental agencies when acting in a
governmental or proprietary capacity or any other structures or public
irrprovements; provided, however, that Grantee shall in all such cases have the
privileges and be subject to the obligations to abandon Franchise property in
place, as provided in Section 12(d) hereof.
Section 15.
FAILURE TO PERFORM STREET WORK.
Upon failure of the Grantee to complete aTJY work required by the
provisions of this Franchise to be done. .L~1 any street, within the time
prescribed and to the satisfaction of the City Engineer, the City Engineer may
cause such work to be done a'ld the Grantee shall pay to the City the cost
thereof in the itemized amounts reported by the City Engineer to the Grantee,
within thirty (30) days after receipt of such itemized report. The City shall
give at least a thirty (30) day notice to the Grantee of such work to be done
prior to City's commencement of such work.
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Section 16.
F!\.lTHFUL PEPFORWI.NCE BOND.
The Grantee shall, within five (5) days after the award of this
franchise, file with the city Clerk, and at all times thereafter maintain in
full force' and effect, an acceptable corporate surety bond, in duplicate, in
the amount of Five 'Thousand Dollars ($5,000.00) effective for G'1e entire term
of this franchise, and conditioned that in the event the Grantee shall fail to
comply with anyone or more of the provisions of this franchise, then there
shall be recoverable jointly and severally from the principal and surety of
SUG'1' bond, any damages suffered by the City as a result thereof, including the
full amount of any compensation, indemnification, or costs of removal or
abandonment of property as prescribed by Section 5. hereof which may be in
default, up to the full amount of the bond; said condition to be a continuing
obligation for the duration of this franchise and G'1ereafter until the Grantee
has liquidated all of its obligations with the City that may have arisen from
the acceptance of this franchise by the Grantee or from its exercise or aTJY
privilege herein granted.
Section I 7 .
INDEMNIFICATION TO CITY.
a. Grantee agrees that at all times during the existence of this
Franchise it will maintain in force, furnish and file with the
City a certificate of insurance evidencing, at its own expense,
a general comprehensive liability insurance policy, naming the
Ci ty as addi tional insured, in protection of Ci ty, its boards,
commissions, officers, agents and employees, in a company
authorized to do business in the State of California, and in
form satisfactory to the City Attorney, protecting the City and
said persons against liability for loss or damages for personal
injury, death and property damage occasioned by the operations
of Grantee under this Fri;ll1chise, with minimum liability limits
of $500,000 for personal injury or death of anyone person, and
$1,000,000 for personal injury or death of two or more persons
in anyone occurrence, and $300,000 for damage to property
resulting from any. one occurrence.
b. The policies mentioned in the foregoing paragraph shall contain
a provision that a written notice of .any cancellation or
reduction in co.verage 'of said policy shall be delivered to the
City ten (IO) days in advance of the effective date thereof. If
such insurance is provided in either case by a policy which also
covers Grantee or any other entity or person than those above
named, then such policy shall contain the standard
crOSS-liability endorsement.
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c. Ll1 addition to ~'1e above policies Grantee shall agree to
indemnify Ci ty, its boards, corrnnissions, officers, agents and
employees, against a~l claims, demands, actions, suits and
proceeding by others and against all liability to others, and
against any loss, cost and expense resulting therefrom,
excepting acts of negligence or other acts by the City,
including reasonable attorneys fees, arising out of the exercise
or enjoyment of this Franchise.
Section 18.
REGULATION OF SERVICE.
Grantee shall:
a. Operate the Cable Television System authorized by this Franchise
in accordance with the mL~D~m technical standards set forth by
the FCC, to the effect that the SUbscriber shall receive the
best possible signal to his television set consistent with the
state of the art and economic operation of the system.
b. Limit failure to a minimum by locating and taking steps to
correct malfunctions promptly, but in no event longer than
seventy-two (72) hours after notice.
c. Upon complaint by Subscriber make a demonstration satisfactory
to the City Manager or his designated representative that a
signal is being delivered which is of sufficient strength and
quality to meet the said technical standards referenced to in
(a) above.
d. Render efficient service, making repairs promptly and
interrupting service only for good cause and for Ll1e shortest
time. possible; such interruptions insofar as possible shall be
preceded by notice given to Subscribers twenty-four (24) hours
in advance where possible and shall occur during periods of
minimum use of system.
e. Have a toll free telephone number- listed in the local telephone
directory, and be so operated that requests for repair may be
received at any time.
f. Operate the Cable Television System authorized by this ordinance
twenty-four (24) hours per day, seven (7) days per week.
g. Not refuse to accept a subscriber unless it was not .in the
public interest or not reasonably economically feasible for
Grantee to furnish service for that proposed subscriber.
h. Not deny access to cable services to any group of potential
residential cable subscribers because of the income of the
residents of the .local area in Which such group resides.
_ t1z.: 1 5
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If a Subscriber is unable to obtain satisfactory, resolution of a
::omplaint filec wit...~ Grantee, the Subscriber may notify the City in writing,
stating the Subscriber's name and address, the nature of the complaint and the
action ,taken to secure resolution of the complaint by the Grantee.
Section 19.
FILINGS ANn COMMUNICATION WITH 2EGUU:IDP-Y .".GENCIES.
Copies of all petitions, applications and communications of all types
submitted by Grantee or City to the Federal Cllmmunications Cllmmission,
California Public Utilities Cllmmission, or any other Federal or State
regulatory commission or agency having jurisdiction over a~y matter affecting
operation of Grantee's Cable Television System shall be submitted
simultaneously to the City or Grantee. A copy of each document filed by the
Grantee with the City Clerk in accordance with this section shall be dea~ed to
be delivered.
Section 20.
INSPECTIW OF PROPERTY AND RECORDS.
At all ,reasonable times, the Grantee shall permit any duly authorized
representative of the City to examine all Franchise property, together with
any appurtenant property of the Grantee situated within the City, and to
examine all maps and other records kept or maintained by the Grantee, which
treat the operations, affairs, transactions or property of the Grantee with
respect thereto and to determine whether the Grantee has paid franchise fees
in the a~unts prescribed in section 5. The Grantee shall prepare a~d furnish
to the City Engineer at the time and in the form prescribed by the City
~ngineer, such reports, with respect to its operations, affairs, transactions
,r property, as may be reasonably necessary or appropriate' to the performance
of any 'of the duties of the City or any of its officers and employees in
connection with this Franchise. The Grantee shall, at all times, make and
keep full and complete plans, maps, and records, showing the exact location of
all Cable Television System equipment installed or in use by Grantee in
streets, alleys and public places of the City.
TIle Grantee shall maintain a written record of customer service
requests and complaints and make an annual report to the City thereof. Such
records shall be available for inspection by the City. The Grantee shall
notify the City of any changes in the customer service agreement or in the
complaint procedure to be followed by the customets.
Section 21.
DISPUTES.
In the event of a' bringing of any a'ction by either party hereto
against the other hereon or hereunder, or by reason of the breach of any term,
covenant or condition on the part of the other party, or arising out of this
Agreement, the party in whose favor final judgment shall be entered, shall be
entitled to have and recover from the other party reasonable attorney's fees
to be fixed by the Cllurt which shall have rendered the judgment~
-l,f'-::1 6
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Section 22.
MISCELLANEOUS PP.CWISIONS.
a. All notices herein provided for may be by prepalo registered or
certified mail addressed to the parties as follows:
TO THE CITY:
WITH ccpy TO:
City Clerk
276 Fourth Avenue
Chula Vista, CA 92010
Thomas J. EBrron
City Attorney
276 Fourth Avenue
Chula Vista, CA 92010
TO TF..E G?ANTEE:
WITH COpy TO:
ultronics, Inc.
7777 Alvarado Rd., Suite 700
La Mesa, CA 92041
and shall be considered as given only when received by the other
party.
All matters herein provided to be filed with the City shall be filed
with the City Clerk.
b. The Grantee shall not engage in the business of repairing
television receivers or the sale of parts for the same. It is
understood, however, that the foregoing does not apply to
converters, decoders, or other types of electronic signal
adapters or decoders required for the ,subscriber's television
set to receive any of Grantee's signals.
c. Grantee and the City agree to discuss future non-entertainment
uses of the cable television system during the term of this
franchise agreement. Both parties agree to discuss and consider
entering into mutually advantageous joint ventures to promote
business or other non-entertaiD.ment uses of the cable system,
which discussion may include City taxation and bonding powers.
This discussion and consideration may be initiated by either
party upon a miniil\wu of 30 days written notice, witrJa proposed
agenda to be included. This paragraph reflects the intent of
the Grantee and the City to maintain a strong cooperative
relationship which may lead to the introduction of new cable
related business services within the city in a manner which is
mutually advantageous and acceptable to both the Grantee and the
City.
_14.=17
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d. Not withsta~ding any other provisio~~ of this agreement, Grantee
shall at all times comply with all State and ?ederal laws, rules
and regulations, or any administrative agency thereof; provided,
however, if any such ordinance, law, rule or regulation shall
require the Grantee to perform any act: or shall permit the
Grantee to perform any act in conflict with the provisions and
terms of this agreement, then such provision or term in conflict
may be modified or amended by agreement of the parties to such
reasonable extent necessary to carry out t..f-,e full intent and
purpose of this agreement.
. EXECUTED THIS
15th
day of
Seotember
, 19 87
CITY OF Ch1JLA VISTA
a Municipal Corporation
UL'IROOICS, INC.
'Y. ~~.Cx
Gregory C, Mayor .
Sf: /7;'l~h ~~~M1
~/l..e~-rJ'-
~0C~':::.L
ATI'EST:
..J~~.}~RK
, Y of Chula Vista .
Approved as to form
D. Richard Rudolf,
~~sistant City Atto
WPC 1696A
-14:'18
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~!c'",,~;, - ~-- ,"' \ ,,'-j, ")', ''''. '-. :~:
..,-. , t:raneCB
November 1, 1987
Mr. John Goss
City Manager
City of Chula Vista
Chula Vista, CA 92010
Dear Mr. Goss,
On behalf of ULTRONICS, INC., I accept all of the terms and
conditions of the Cable Television Franchise Agreement granted to
ULTRONICS. I look forward to the challenge presented to me; and
am excited about giving the citizens of Chula Vista an alternative
t oeir present cable television service.
"r have enclosed an insurance certificate as required by the
Agreement. The surety bond will be in the mail to you in the next
few days.
Sincerly,
?JZvdri (~~y,,-
Martin Altbeum, President
ULTRONtCS, INC.
.K ':::
Ci", ....".",;..:'
SHUu\ \/i.S~-/", ',_:.~
OCT
2. ~~?Sl
SATELLITE MASTER ANTENNA TELEVISION
~ ""
.' ,./. ,"
"-.,,.'. ,..'.J
7777 ALVARADO ROAD. SUITE 700. LA MESA, CALIFORNIA 92041 - (619) 461.7977
4-19
"\r .... ..,;. ~ ........ I.
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9-?'J-S7
PRODUCER
TH1$ CERTIFrCA TE !S ISSUED AS A MA TIER OF INFOFlMA TION ONLY AND CONFERS
NO RIGHTS UPON T~E CERTIFICATE HOLDER THIS CERTIfICATE DOES NOT AMEND,
EXTEND OR ALTeR THE COVERAGE AFFORDED 8Y THE POLIClES BELOW.
Teague Insurance p.,gency> Inc.
7r Alvarado Rd., #6D6
Lo sa, CA 92041
COMPANIES AFFORDING COVERAGE
COMPANY
L:::TTEF.
A Golden
Eagle
INSURE::>
COMPANY B
I LeTTER
CaMP ANY C
LETTER
Ultronics A Calif. Corp.
OBA: The Satellite Store
7777 Alvarado Rd., #700
La Mesa, CA. 92041
COMPANY D
LETTER
COMPANY E
LETTER
~t
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t~
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i
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THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LiSTED BELOW HAVE BEEN fSSUEOTO THE INSURED NAMED ABove FOR THE POlleY PERIOD INDICATED.
NQTWITHSTANOJNG ANY REQUIAEMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY
BE ISSUED OR MAY PERTAIN, THE INSURANCE A.FFORDED BY THE POLICIES DESCRIBED HERE[N [$ SUBJECT TO ALL THE TERMS, EXCLUSIONS, ANO COND~
nONS OF SUCH POLICIES.
LIABILITY liMITS IN THOUSANDS
OCC~~~~CE AGGREGATE ~~
}~;
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..
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CO
LTR
POLICY EFF=CTlVE
DATE (MMfDOIYY)
POLICY EX?!RATiDN
DATE (MMlCOfYY)
rYP!::: OF INSURANCE
POUCY NUMBER
po,
GENERAL LIABILITY
X COMPREHENSIVE FORM
PREMISEs/OPERATIONS
UNDERGROUND
EXPLOSiON & COLlAPSE HAZ..1RD
PRODUCTS/COMPLETED OPERATIONS
CONTR.ACTUAl
INDEPENDENT CDII.'T."lACTORS
''>AD FORM PROPERTY DAMAGE
;ONAL INJURY
PERSONAL INJURY $
BODilY
INJURY
$
PROPERTY
DAMAGE
CMP 016525-01
$
1-14-87
4-11-88
81 & PO
COMBINED
$1 ,000
AUTOMOBILE L1ABIUTY
MY AUTO
All OWNED AUTOS (PRIV, PASS,)
All O'VVNED Aufos ('OiliER THAN)
PRtV, P>\SS.
HIRED AUTOS
NON-OWNED AUTOS
GARAGE LIABILITY
8<Jllty
IIL'URY
[PEiI~~) $
BODILY
INJURY
iPE';.\IDCENT! $
PROPERTY
DAMAGE $
BI &. PO
COMBINED $
EXCESS LIABILITY
UMBRELLA FOAM
OTHER. THAN UMBRELLA FORM
~bt~~!EO $
WORKERS' COMPENSATION
AND
EMPLOYERS' LIABILITY
STATUTORY
$
$
$
(EACH ACCIDENT)
OTHER
lESCRIPTION OF OPERATIONSflOCATIONSNEH1ClES/SPEClAl ITI;MS
CERTIFICATE HOLDER IS NAMED
AS AODITIONAL INSURED
,-
C IF
276
CHULA
- CHULA VISTA,
AVENUE
VISTA, CA 92010
irJ.
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?RCO~ OF ?UBUCAT10N
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~:r c:m~fh!! pMnepol clerk of Ihe printer of lhe
LrCHULA VISTA STAll.N!:'N5, 0 new~poDer 01
g:)enerol 0:1""O.1/0Iion, _",rinl~d and publlshed
~> rMCE 'fJEElQ'f in Ihe City 0/ o.ula Vi:;lc.
\",; and the Soulh Bay Judicial Df.<:lrid. Counly 01
~; San DIego, Sloh~ c:1 eolifornio, IJr,Cl!r rho dere
:'~~i Aug. 5. 19:12. use Number 71752: thm
f'rne nclkl'!. of wnich the anne::red is 0 orinted
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. has been published in eed1 regular GTIci entire
. is~ue 0; said new~poper and not in any suppl~
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RESOLUTION NO. 1~13"
RESOLUTION OF THE CITY COUNCIL O~ THE CITY OF
CRLiLA VISTA A??~WVING ,,_GREEMENT POR ASSIGNMENT
- OF CABLE TELEVIS ION FRANCHIS E FROM ULTRONICS,
INC. TO CHULA VISTA Ci'.BLE, .", CALIFORNIA
LIMITED PARTNERSHIP
The City Council of the City of Chula Vista does hereby
resolve as follows:
WHEREAS, on September 15, 1987, by Ordinance No. 2230,
the Chula Vista City Council granted a non-exclusive cable
television to Ultronics, Inc. pursuant to Chapter XII of the
Chula Vista City Charter Section 1203 and Chula Vista Municipal
Code Section 5.30.010 require that franchise services be
performed only by the holder of the franchise, and
WHEEEAS, Charter Section 1203 prohibits the transfer or
assignment of any franchise granted by the City Council unless
the City Council consents thereto in writing and unless the
transferree or assignee covenants and agrees to perform and be
bound by each and all of the terms and conditions imposed in the
franchise and the procedural ordinance and the Charter, and
WHEREAS, on November 10,1987, Ultronics, Inc. and
Doreen and John Whitney formed a California limited partnership
known as Chula Vista Cable for the purpose of. operating the
franchise and exercising- the franchise rights. of ultronics, Inc.
in the City of Chula Vista for the provision of cable television
services, and
WHEREAS, Ul tronics, Inc. has requested approval for. tire
transfer and assignment of the franchise rights and
responsibilities from Ultronics, Inc. to Chula Vista Cable, a
California limited partnership, and
WHEREAS, the Council finds that Chula Vista Cable is as
or more economically viable than Ultronics, Inc. to exercise the
franchise rights and responsibilities of Ultronics, Inc. in the
distribution of cable television service in Chula Vista and all
the Charter and Municipal Code requirements have been met.
NOW, THEREFORE, BE IT RESOLVED that the City Council of
the City of Chula Vi_sta does hereby approve of that certain
agreement between Ultronics, Inc. and Chula Vista Cable, a
California limited partnership (a copy of which is attached
hereto and incorporated by this reference) providing for the
assignment of the franchise rights and responsibilities of
Ultronics, Inc. to Chula Vista Cable, a California limited
partnership. -*
-1-
4-22
->,( see Q"J.-""'Q.-L IUo; (>08'1 - WI
BE IT FURTHER RESOLVED that
indicate the city Council's written
by executing said agreement.
Presented and Approved as to form by
the Mayor
approval of
-~ ~___________ (,h/,v?
D. Richard Rudolf, ~t City Attorney
5797a
4-23
-2-
is authorized to
said assignment
lI/f~~!
<-
ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
. iULA VISTA, CALIFORNIA, this
13th
day of
June
19 89 ,by -the following vote, to_it:
AYES: Counci 1 members McCandliss, Nader, Cox, Moore
NAYES: Counc i 1 membe rs None
ABSTAIN: Counci 1 members None
ABSENT: Counc i 1 members Malcolm
Mayo
ATTESTad7~<~./ J::7~~
u City Clerk
c~
e City of Chula Vista
.TE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) S s.
CfTY OF CHULA VlST A )
I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California,
DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RE SOL UT ION NO. 14134
,and that the some has not been amended or repealed.
DATED
City Clerk
CC-660
4-24
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. ACREEMF'ln' f'CR hSSIGllMENT
Of'
CABLE TELEVIsION l'RANCllISE
. ", ~:::.\~':~'" '.
"
'l'lIIS AC~tMENT lllaa. this l'l+'" day of MAr
, 1989,'
..
. ..", "'T' .
at,Chula V!;ta,~Cali!ornia, by and betwaen ULTRONICS, INC.,
'lI .... _'
a Callfornia'eerporation, hereinafter referred to as
. . .
"Assiiner-, .and'CHULA VISTA CABLE, a California limited
. '.r,. ;' ~ .
partn@ruhip,.referre4 to in this A9reem~nt ae "Azaiqnee",
M3&RBAS. by~Ordinanoe Number 2230, Assignor was gr~nted
, "
a non-oxolu.lvofranchl~e. hereinafter referred to ae the
. .. .
. . - - - .
}'.. ". ....... .
-Frano~lsaO,by~the City afChula Vista, California, te
'. "'..
contraot and 'operata a cable televiaion 'yeturn and servioe
.. vitM,n add citYf -end
~
_\ "
.
,:,. WHEREAS, A8.i<<1nor, as, the general partner, on or about
Nov8lllber'lO,:'U87. by' a written limited partnerahip agree-
" " ~;. .",.
~ent, hereinafter referred to as the "Partnership Agree-
I'lKlnt", 'for1lled Aui'Jnee for the purpose of the ownerllhip and
operation of a cable televiaion system within said city
pur~uant to the FrAnchi.o, and
.' - lmEREAS, pursuant to sAid Partner:lhip Agreement,
A#ai9Uor i3 required, as a part of it~ capital cvntribution,
. \ .'l:
. '.:
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);:
, .
to .Ioiqn tho Franchise to Aseignee in' conGideration of
sixtr pe~cent (60\) equity ownership interest in Assignee
and a deferred cash pa~ent, and
, WHEREAS. Assignor desiroD to aSliqn the Franchise to
a
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ABolgn09 in Qccordanco ~ith
.,.':'-',
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coQpllanc0 vith Chule Vilta
the partnarship Agreement and in '.' 6":':
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Charter Section 1203 and Chula >"',';\~
',>,'-r/~
. ~,,'....;jt/.~.'~/
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:~~.~~<,,~f/,,'vi~""~~~i~'i~~al Code Section $.30.010. and AlllIic;nee duiru
... ~~Q , ';.... '. to e.~.~'t such AulqlllllGntl
!':$-. It .
'~;~~' :, ,.'. <~. ,~!1U:rolut. in eonl1dcaution of the mutual prolllbeo
~1.11I: horoh contained, and other 900d and valuable consideration.
< i IF . ','
j I; . the partie. 'heret,., aqr.e all followS!
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1. ASSICNMEN'l'.
',riqht, .
,Aui'inor hereby .Uic;:111 to "sIl19n.. all of ita
;'~~;,. .
title' and interest in and to the Franchise . and all
right.,' /;;~ivH.<ro8 and PO,,",rIS therein contained,
'of the
. v' .
warrantin~ t~ ~.!gn.o
. "'... ,-';. \ .,. .
assigned, traneforred.
that the 5~me have not pr8vioulJ~y
or hypothecated in anyway to any
other party.
-
2.
CONSIDERATION.
.......-(...
As and for consideration for the alsignment herein
""
'"
~do; ABaiine. confirms to As.i9nor a sixty percent.160'1
'capital 1ntQrest in Assignee and delivers to ^Isignor ito
promissory note in accordance with the terms of the r~rtner-
Bhip Agreement. receipt of which is hereby acknowledged by
,', ~
,
Auignor.
3.
ACCEPTANCE.
Assign.. hereby accepts laid allic;nment of the
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Franchi... and aglumel all of the obli9ationB of the fran- "~,
~: : .' ;~l' .,_
,~i '~." chillClt!l aD therein lIet forth. In special conllideration tor > ",,'. ,,:./,
:~ i ~,,..,' the consent of the City Council of the City of Chula Vhta,. :',~;'1.),~
,~, ~~,t '. " California, to the allllignment herein made, Aldinee co...o- >~"
'i' '~t: ' ' " ".
r ~Jr'':'" naDtD ADd a9roell to ~rform arid be bound by each And aU Of:;:;".::.;i;' .~
" It, the teraa ClOd concUtionll illlpend by the Franchise, and by, '
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by lev or equity, reasonabl.e court"" ~~Jn"
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::~:~~:. .holl b. ,o<oro.' by tho lo.. ,f. ell
~ J,'
Chartor lillt! the Chuli\ Villta Municipal
,'0:4. vith'rupcaet thento.
4. :.'; FORM Or'AGREEMENT.
, '" ':'rhil
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Plllratzrapblll o!
aubjoct headings of the paragraphs and sub-
this Aqreement are included for t~~ purroleo
'~' ~~ ~f~~,~~,!~,;;,~,,~t,:' , ,
r, ; ,Ie . ,1iJt.{.~ ~< ''\;L~~'d ,."
, .;. '; f:~f ~~~~;:,: ,:~~~~_:~:.ftt:.~~':;';:~':~ ,~!;:j'..";"~,a,~ '0'~' ,
'i~ tl1t' ,~"-:':,,. .'~''''':- ':'.~ ',~,' .
j-- ..: <,'.", ,:"'. '," .-" ''-.'' '.
'.'~ ,. ' tho Chula Villta City
I ; . !'I ~.
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o! convenionce only and Ghall not effect the construction or
l.tltol:'prGtat,ion of any, of itll prov1aiona. This Aguem<tnt
'". ":, \. .~. .
'eonatitu~o=,lha entire ~qr8emont betveen th~ parties pvr-
. r. ..' -. '.
"taininq'to"the subject Illattarcontainod in it: and aupercedu',
all prlor'er,eontemporanoouB 8qreemente, representationa,
.--' r,
and un~er.tand!nq of the parties.
No supplement, modifica-
,tion, or &m$ndment of this Agreement ahall be bindinq unless
.~mcuted in writing by both of the parties hereto.
No
vaiver of any of the provisions of this Aqreernent ahall be
doeried, or .hall constitute, a \o'aiver of any other pro-
.. '
viliono, ~hzlher or not similar, nor shall any waiver
conatitute a continuing waiver.
No waiver shall be binding
unless executed 1n writing by the parties making the waiver.
5.
ATTORNEY'S FEES.
Should any legal. proceeding be instituted to
"
enforce this Aqrcement, or any of the provisions thereOf,;
-
tho prevailing party shall
any ether rellledy provided
be entitled' to, in addition to
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I' ~;t1'"., " the SUlto of Clll1fornia applicabloto a'ireolllentll lIIado anli
." . ~{)~:~;-..:~>: ~~~'
costs and attorney's fees aD dotermined by a court of
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Oy .ULTRONICS, INC., II California,;.:"., ,:.:~
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AUTHORIZATION
Consent of tho'City'Council for the city of Chula
Vieta, ,California,' io hereby ~iven to the aBBiq~,ent and
transfer of the franchi.e riqhts hereinabove made from
OLTRONICS,' INC., a California corporation, to CHULA VISTA
CABLE, & California ~tmited Partnership, and CHOLA VISTA
CABLE, Q California Ltmitcd Partnership, il hereby accepted
aD tho Franchi... ~n4~r Chula Vista Ordinance Number 2230 in
"place anCl 1n atGlad of ULTRONICS, INC., a Cul1fornla corpo-
ration.
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By
Mayor
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4-28
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THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORt\1 BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALL Y SIGNED UPON APPROVAL BY
THE CITY COUNCIL
(
Dated: 41 Lf! o~
Agreement for Assignment of Cable Television Franchise
Between Chula Vista Cable, Ltd, and NexHorizon Communications, Inc.
4-29
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AGREEM:ENT FOR ASSIG!-"iNl:ENT
OF
CABLE TELEvlSION FRAJ.'iCHISE
THIS AGREEMENT made this 8th day of May, 2008, aT Chula Vista, California, by and between
CHULA VISTA CABLE, L ill., a California LilTIited Partnership, hereinafter referred to as
"Assignor" or "CVC", and NEXHORlZON COlYj]yfL~lCATIONS, INC. or its subsidiary, referred
to in this Agreement as "Assignee."
Vv'HEREAS, on September 8,1987, by Ordinance number 2230, the City ofChula Vista (the
"City") granted a franchise to Ultronics, Inc., pursuant to the "Agreement Between the City of Chula
Vista and Ultronics, Inc., a California corporation, Granting Ultronics, Inc. the Non-Exclusive Right,
Privilege and Franchise to Lay and Use Lines, Wires, Coaxial Cable and Appurtenances for
Transmitting, Distributing and Supplying Cable Television Service Along, Across and Upon the
Public Streets, Ways, Alleys and Places Within the City of Chula Vista" (the "Franchise"); and
w1IEREAS, on June 7, 1989, the City approved the assignment of the Franchise from
Ultronics, Inc. to Assignor, pursuant to Resolution No. 14134; and
Vv1IEREAS, Assignor, on or about January 1,2008, by a written Agreement Regarding Sale
of Assets of, and Stock in Two Cable Companies Agreement, hereinafter referred to as the
"Purchase Agreement", agreed to sell 100% of the assets and the business in Assignor for the
purpose of transferring the ownership and operation of a cable television system within said city
pursuant to the Fnm.chise provided that approval is granted by City Council for transfer of franchise.
WHEREAS, pursuant to said Purchase Agreement, Assignor is required, as a part of its
capital contribution, to assign the Franchise to Assignee in consideration of a one hundred percent
(100%) equity ownership interest in the form of cash, stock and note payment; and
Vv1IEREAS, Assignor desires to assign the Franchise to Assignee in accordance with the
Partnership Agreement in compliance with Chula Vista Charter Section 1203, Chula Vista
Municipal code Section 5.30.010, and section 6.c. of the Franchise agreement, and Assignee desires
to accept such assignment;
NOW, THEREFORE, in consideration of the mutual promises herein contained, and other
good and valuable consideration, the parties hereto agree as follows:
1) ASSIGNMENT
Assignor hereby assigns to Assignee all of its right, title, and interest in the Franchise, and all of
the rights, privileges and powers therein contained, warranting to Assignee that the same has not
previously been assigned, transferred, or hypothecated in anyway to any other party.
2) CONSIDERATION
In exchange for the Franchise the Assets to be Acquired, Buyer shall pay and deliver to CVC the
consideration established in the Purchase Agreement.
3) ACCEPT.ANCE
Assignee hereby accepts said assi~ment of the Franchise, and assumes all of the obligations of
. .' " 4-30
0) ACCEPTA..l"iCE
Assignee hereby accepts said assignment of the Franchise, and assumes all of the obligations of
the Franchise, as set forth in the Purchase Agreement. In special consideration for the consent of
the City COli.'lcil of the City of Chula Vista, California, to the assignment herein made, Assignee
covenants and agrees to comply with, perform and be bOli.'ld by each and all of the terms and
conditions imposed by the Franchise, and by the Chula Vista City Charter and the Chula Vista
Mli.'licipal Code with respect thereto.
4) FOfuY! AGREENlENT
The subject headings of the paragraphs and subparagraphs of this Agreement are included for the
purposes of convenience only and shall not effect the construction or interpretation of any of its
provisions. Tnis Agreement constitutes the entire agreement benveen the parties pertaiIling to the
subject matter contained in it and supersedes all prior or contemporaneous agreements,
representations, and understanding of the parties. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by both of the panies hereto. No
waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver
of any other provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the parties making the waiver.
5) ATTORNEY'S FEES
Should any legal proceeding by instituted to enforce this Agreement, or any of the provisions
thereof, the prevailing party shall be entitled to, in addition to any other remedy provided by law
or equity, reasonable court costs and attorney's fees as determined by a court of competent
jurisdiction.
6) CALIFORNIA LAW
This Agreement shall be governed by the laws of the State of California applicable to agreements
made and to be executed within California. .
4-31
IN W1TNESS W11EREOF, the parties to tllis Agreement have duly executed on the day and year
Erst above written.
Chula Vista Cable. Ltd.. a California Limited Parmershio
By:-(Qy~A J j /~~~
(Signature)
Barbara Altbaum, General Parmer
Barbara Altbaum, Trustee of the Altbaum Family Trust
Barbara Altbaum, President ofUlrronics, Inc.
NexHorizon Communications. Inc.
BA):Jrvv/ -0 <R Co.
C'iLI/IN (S~at ~ !-I.~ S!i;.
Calvin D. Smiley, Sr. '1 '
President & CEO
;f""
4-32
SIGNATliRE PAGE AUTHORIZING THE AGREENfENT FOR ASSIGNNfENT
OF CABLE TELEVISION FRANCHISE
Consent of the City Council of the City of Chula Vista, California, is hereby given to the assignment
and transfer of the franchise rights hereinabove made from Chula Vista Cable, Ltd., a California
Limited Partnership, to NexHorizon Communications, Inc. and NexHorzon Communications, Inc. is
hereby accepted as the Franchisee under Chula Vista Ordinance Number 2230 in place and in stead
of Ultronics, Inc. a California corporation, and its assignee, Chula Vista Cable, Ltd., a California
Limited Partnership.
Dated:
,2008
City of Chula Vista
By:
Cheryl Cox, Mayor
Attest:
, City Clerk
Approved as to Form:
, City Attorney
Dated:
4-33
AGREEMENT FOR ASSIGNMENT
OF
CABLE TELEVISION FRANCHISE
1-4(1) ~
~;M
lJirkfbuted ~fAeeIr~
rafwfoG
TillS AGREEMENT made this 8th day of May, 2008, at Chula Vista, California, by and between
CHULA VISTA CABLE, LTD., a California Limited Partnership, hereinafter referred to as
"Assignor" or "CVC", and NEXHORIZON COMMUNICATIONS, INC. or its subsidiary, referred
to in this Agreement as "Assignee."
WHEREAS, on September 8, 1987, by Ordinance number 2230, the City of Chula Vista (the
"City") granted a franchise to Ultronics, Inc., pursuant to the "Agreement Between the City of Chula
Vista and Ultrorucs, Inc., a California corporation, Granting Ultrorucs, Inc. the Non-Exclusive Right,
Privilege and Franchise to Lay and Use Lines, Wires, Coaxial Cable and Appurtenances for
Transmitting, Distributing and Supplying Cable Television Service Along, Across and Upon the
Public Streets, Ways, Alleys and Places Within the City ofChula Vista" (the "Franchise"); and
WHEREAS, on June 7, 1989, the City approved the assignment of the Franchise from
Ultronics, Inc. to Assignor, pursuant to Resolution No. 14134; and
WHEREAS, ASSign~out January 1,2008, by a written Agreement Regarding Sale
of Assets of, and Stock i~ble Comp'!nies Agreement, hereinafter referred to as the
"Purchase Agreement", agreed to sell 100% of the assets and the business in Assignor for the
purpose of transferring the ownership and operation of a cable television system within said city
pursuant to the Franchise provided that approval is granted by City Council for transfer of franchise.
WHEREAS, pursuant to said Purchase Agreement, Assignor is required, as a part of its
capital contribution, to assign the Franchise to Assignee in consideration of a one hundred percent
(l 00%) equity ownership interest in the form of cash, stock and note payment; and
WHEREAS, Assignor desires to assign the Franchise to Assignee in accordance with the
Partnership Agreement in compliance with Chula Vista Charter Section 1203, Chula Vista
Municipal code Section 5.30.010, and section 6.c. of the Franchise agreement, and Assignee desires
to accept such assignment;
NOW, THEREFORE, in consideration of the mutual promises herein contained, and other
good and valuable consideration, the parties hereto agree as follows:
1) ASSIGNMENT
Assignor hereby assigns to Assignee all of its right, title, and interest in the Franchise, and all of
the rights, privileges and powers therein contained, warranting to Assignee that the same has not
previously been assigned, transferred, or hypothecated in anyway to any other party.
2) CONSIDERATION
In exchange for the Franchise the Assets to be Acquired, Buyer shall pay and deliver to CVC the
consideration established in the Purchase Agreement.
3) ACCEPTANCE
Assignee hereby a,;cepts said aSSignm::t o~t~: Franchise, and assumes all of the obligations of f)/
3) ACCEPTANCE
Assignee hereby accepts said assignment of the Franchise, and assumes all of the obligations of
the Franchise, as set forth in the Purchase Agreement. In special consideration for the consent of
the City Council of the City of Chula Vista, California, to the assignment herein made, Assignee
covenants and agrees to comply with, perform and be bound by each and all of the terms and
conditions imposed by the Franchise, and by the Chula Vista City Charter and the Chula Vista
Municipal Code with respect thereto.
4) FORM AGREEMENT
The subject headings of the paragraphs and subparagraphs of this Agreement are included for the
purposes of convenience only and shall not effect the construction or interpretation of any of its
provisions. This Agreement constitutes the entire agreement between the parties pertaining to the
subject matter contained in it and supersedes all prior or contemporaneous agreements,
representations, and understanding of the parties. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver
of any other provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the parties making the waiver.
5) ATTORNEY'S FEES
Should any legal proceeding by instituted to enforce this Agreement, or any of the provisions
thereof, the prevailing party shall be entitled to, in addition to any other remedy provided by law
or equity, reasonable court costs and attorney's fees as determined by a court of competent
jurisdiction.
6) CALIFORNIA LAW
This Agreement shall be governed by the laws of the State of California applicable to agreements
made and to be executed within California.
"
-
tr
IN WITNESS WHEREOF, the parties to this Agreement have duly executed on the day and year
first above written.
Chula Vista Cable, Ltd.. a California Limited Partnership
BY:~.L4/r II j A2t~~
(Signature)
Barbara Altbaum, General Partner
Barbara Altbaum, Trustee of the Altbaum Family Trust
Barbara Altbaum, President of Ultronics, Inc.
_~, ex
,--/
o Ulll . ns Inc.
By:
C~LII'N (s~at~.....l.(,'1' SIi:.
Calvin D. Smiley, Sf.
President & CEO
tvr
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SIGNA TURE PAGE AUTHORIZING THE AGREEMENT FOR ASSIGNMENT
OF CABLE TELEVISION FRANCmSE
Consent of the City Council of the City of Chula Vista, California, is hereby given to the assignment
and transfer of the franchise rights hereinabove made from Chula Vista Cable, Ltd., a California
Limited Partnership, to NexHorizon Communications, Inc. and NexHorzon Communications, Inc. is
hereby accepted as the Franchisee under Chula Vista Ordinance Number 2230 in place and in stead
of Ultronics, Inc. a California corporation, and its assignee, Chula Vista Cable, Ltd., a California
Limited Partnership.
Dated:
,2008
City of Chula Vista
By:
Cheryl Cox, Mayor
Attest:
, City Clerk
Approved as to Form:
, City Attorney
Dated:
"
)"
>-1.. ,/
RESOLUTION NO. 2008-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA CONSENTING TO THE ASSIGNMENT OF
CHULA VISTA CABLE, LTD., FRA..l\!CHISE AGREEMENT TO
NEXHORIZON BROADBAi'ID OF SOUTHERN CALIFOR1"J1A,
INe.
WHEREAS, subject to City Council approval, Chula Vista Cable Ltd. ("Chula Vista
Cable") has transferred ownership of its cable operations and infrastructure within the City of
Chula Vista to NexHorizon Broadband of Southern California Inc., (NexHorizon); and
WHEREAS, the City of Chula Vista entered into a Cable Franchise Agreement with
Ultronics, Inc., on November 1, 1987; and
WHEREAS, on July 21,1987 the City Council passed a resolution notifYing the public of
the Council's intention to hold a public hearing on August 18, 1987 to consider the granting of a
cable franchise agreement to Ultronics Inc; and
WHEREAS, the City approved a request by Ultronics to transfer the Agreement from
Ultronics to a Chula Vista Cable, on May 12, 1989, and that Agreement remains in force today;
and
WHEREAS, Section 6.c. of the Franchise Agreement allows the Grantee to assign the
Franchise, subj ect to City Council consent; and
WHEREAS, at the request of Chula Vista Cable, the City began negotiations to extend
the Franchise with Chula Vista Cable in 2004; and
WHEREAS, at Council direction staff concluded those negotiations in late 2004, which
included a Franchise extension for an additional ten years through November 30, 2020; and
WHEREAS, due to the death of the founder of the company, and the subsequent re-
organization of the company, Chula Vista Cable did not approach the City to formally process
the Agreement until June of2007; and
WHEREAS, 'at that time, Chula Vista Cable and NexHorizon approached the City about
assigning the Chula Vista Cable Franchise Agreement to NexHorizon; and
WHEREAS, staff has contacted communities served by NexHorizon to verify their
capacity to provide quality service and checked with the FCC to review any potential complaints;
and
WHEREAS, the record is generally good with some complaints however, the markets
they currently operate in are very small and individual service issues are proportionally far more
significant; and
J:\A;;l;omeyIFrNAL RESOS\2008\05 20 08\Ul:ronics Chula Vista Cable Fra:1chise to NexHorizon.doc
4-34
Resolution No. 2008-
Page 2
WHEREAS, NexHorizon's commitment to updating the Chula Vista Cable
infrastructure, the quality of their products and service in Chula Vista is strong; and
WHEREAS, NexHorizon has emphasized their commitment to customer service and
understands that Staff will enforce consumer protections in the NexHorizon Agreement that are
equivalent to or better than industry, state and federal standards; and
WHEREAS, NexHorizon has also demonstrated the financial capacity to upgrade
operations and customer service during the transition period and provide additional capital that
will improve the range and quality of services provided to their Chula Vista customers; and
WHEREAS, in connection with seeking the City Council's consent to the assignment,
NexHorizon has satistled the requirements of Section 6.c. of the Franchise Agreement; and
WHEREAS, specifically, NexHorizon has demonstrated to City staff its financial
responsibility and ability to assume the franchise, and has agreed to comply with the terms of the
Franchise Agreement; and
WHEREAS, the assignment of the Franchise Agreement leaves the business terms of the
Agreement intact, including the Franchise Fee payment, which is based on 5% of the cable
services gross receipts.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby consents to the assignment of Chula Vista Cable, Ltd., Franchise Agreement
to NexHorizon Broadband of Southern California, Inc.
Presented by
Approved as to form by
Michael Meacham
Director of Conservation and
Environmental Services
,/'
.'/
J:lAllorn~y\f[NAL RESO$\2008\05 20 OSIUllron;cs Chula Vista Cable Franchise to Nemori:wn.dnc
4-35
L~4
May 20, 2008
Mayor Cheryl Cox and City Council
276 Fourth Avenue
Chula Vista, CA 91910-2631
Re: City Council Agenda Item No.4: Resolution Consenting to the Assignment of Chula Vista
Cable, Ltd., Franchise Agreement to NexHorizon Broadband of Southern California.
Dear Mayor Cox and City Council
On Friday it came to our attention that today's City Council consent agenda contains a Resolution
Consenting to the Assignment of Chula Vista Cable, Ltd., Franchise Agreement to NexHorizon
Broadband of Southern California.
Additionally, Cox Communications has proudly served Chula Vista for decades. As the local integrated
telecommunications provider of voice, video and data, Cox has enjoyed a strong and lasting relationship
with the City of Chula Vista. Along with Cox Communications, Chula Vista customers enjoy a choice in
service providers such as Dish satellite, Direct TV, at&t, and Chula Vista Cable.
We would also like to request the City take careful consideration of ensuring a level playing field and
requirements as new providers enter the market, franchises are extended, or existing agreements transition
to new ownership, in this case NexHorizon.
Per our franchise agreement with the City, the City has required a much more stringent set of
requirements on Cox and our compliance adds significant additional costs and time to our company
compared to others operating in Chula Vista. By evaluating franchises the City stands to benefit more for
its constituents. An example of a requirement that is uniquely imposed upon Cox by the City is providing
cable modems and internet service at no charge for up to 30 sites to be selected by the City and a physical
connection at no charge limited to a maximum cost of$60,000.
We ask that the City ensure a level playing lield for all in the market by requiring NexHorizon and any
others be held to the same obligations. We urge the City to take careful consideration enforcing
obligations fairly upon all providers and our competitors. By exempting any current and incoming
providcrs from the same standards the City imposes on Cox is giving them an unfair advantage.
Sincerely,
Sam Attisha
Vice President of Business Development and External Affairs
Cox Communications
Lf - If 0
CITY COUNCIL
AGENDA STATEMENT
::$~If~ CITY OF
~ (HULA VISTA
5/20/08, Iteml
ITEM TITLE:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A PARCEL Ml'\l' THAT PROPOSES
TO VACATE TWO PUBLIC DRAINAGE EASEMENTS WITHIN
PARCEL 1 AND PARCEL 2 OF PARCEL]\;[Ap NO. 19498
SUBMITTED BY:
DIRECTOR OF ENGINEERING A1'ID GENERAL SERVICES ~~"
CITY NlAi'JAGER ~IUI. j./'"
ASSISTANT CITY tc.;:;:'GER 77
4/5THS VOTE: YES 0 NO l8J
REVIEWED BY:
SUMMARY
In January 2004, the Design Review Committee approved an application for a medical office
complex located at 955 through 973 Lane Avenue in the Eastlake Business Center I. The owner of
the property, Otay Lakes Partners, LLC, is requesting to the City the approval of a parcel map and
to vacate two drainage easements enclosed within the property. These two drainage easements are
no longer needed since the temporary drainage system that served the property has been replaced by
the pelmanent stonn drain system that is now located within the City's right-ot~way.
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 proposed project
was adequately covered in previously adopted Eastlake III Woods and Vistas Replanning
Program Final Subsequent Environmental Impact Report (EIR-OI-OI) and IS-00-03. Thus no
further environmental review or documentation is necessary.
RECOMMENDA nON
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
5-1
5/20/08, Item_
Page 2 of 2
DISCUSSION
Back in January 2004, the Design Review Committee approved an application for a medical office
complex located at 955 through 973 Lane Avenue, in the Eastlake Business Center 1. The project
site (955 through 973 Lane Avenue,Chula Vista, CA) has a legal description of Parcels 1 and 2 of
Parcel Map No. 19498, in the City of Chula Vista, County of San Diego, State of California, filed in
the Office of the County recorder of San Diego County, June 1, 2004 as In~trument No. 2004-
0505129 of Official Records.
Currently, the owner of the project has applied for a Parcel Map that will divide the hvo parcels into
a maximum of 35 commercial units. As part of the parcel map process, the owner is requesting the
vacation of hVo existing drainage easements that were granted to the City.
Both drainage easements are located at the easterly side of lfte property (see Exhibit "A" for the
proposed parcel map for the project site showing the location of the hVo drainage easements that
will be vacated). The drainage easement that consists of a 20' -wide strip of land was granted to the
City with the recordation of Parcel Map No. 18476. The other easement was granted with the
recordation of the Grant of Easement - For Drainage Purposes, recorded on May 15, 1996 as File
No. 86-192753 of Official Records.
These hVo drainage easements are no longer needed, since the temporary drainage system that
served the property has been replaced by the permanent drainage system that is currently located
within the City's right-of-way. The hVo drainage easements serve no purpose to the City.
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 ofthis action.
FISCAL IMPACT
The costs related to the processing of this request for vacation of the drainage easements are
being paid for by a deposit of monies provided by the applicant under the City's Full Cost
Recovery System.
ATTACHMENTS
Attachment 1
Exhibit A
Developer's Disclosure Statement
Proposed Parcel Map for 955 through 973 Lane Avenue
Prepared by: Sandra Hernandez, Associate Engineer, Engineering & GS Department
M:\El!gilleerlAGENDA\CAS2008\05-20-08\955 Lalle-Vacation afDrainage EasemenfS.doc
5-2
'IT" ,~, '" ~r'l'- I
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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 aU 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:
1. List the names of all persons having a financial interest in the property that is the subject of the application or the
contract, e.g., owner, applicant, contractor, subcontractor, material supplier.
O~ Lc.~~r rc..---f..-,.~Vfl C-LC
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.
w1 (~ft;:f~ K - L~, ka--,
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3. If any 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 ar( Cn;; (Ph t::~, ,_
f/cu,.i-v,,.,;, I'(onn~ /A"'~67"'7'-".,c?n/
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5. Has any person* associated with this contract had any financial dealings with an official"'* of the City of Chula
Vista as it relates to this contract within the past 12 months. Ves_ No ~
If Yes, briefly describe the nature of the financial interest the official** may have in this contract.
6.
Have you made a contribution of jJ10re than $250 within the past twelve (12) months to a current member of the
Chula Vista City Council? No ~es ~ If yes, which Council member?
5-3
7. Have you provided more than $340 (or an item of equivalent value) to an official" of the City of Chula Vista in the
past twelve (12) months? (This includes being a source oi 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:O,-- 0 ~- oS<
L~4r~
Signature oi Contractor/Applicant
/VI, c/l"" ~I II, L.e 0 I 2:0<-, /'VlCt
Print or type name oi ContractorfApplicant (/ L-;:J u"'-'l:...?t.-
,
Person is defined as: any individual, firm, co-partnership, joint venture, association, social dub, fraternal
organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other
political subdivision, -Of any other group or combination acting as a unit.
Official includes, but is not limited to: Mayor, Council member, Chula Vista Redevelopment Corporation member,
Planning Commissioner, member of a board, commission, or committee of the City, employee, Of staff members.
September 8, 2006
5-4
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5-6
RESOLUTION.NO. 2008-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A PARCEL MAP TH...\.T
PROPOSES TO VACATE TWO PUBLIC DRAINAGE
EASENffiNTS WITHIN PARCEL 1 AND PARCEL 2 OF
PARCEL MAP NO. 19498
WHEREAS, in January 2004, the Design Review Committee approved an application for a
medical office complex (the Project) located at 955 through 973 Lane Avenue in the Eastlake
Business Center I (Project Site); and
WHEREAS, the Project Site is comprised of Parcels 1 and 2 of Parcel Map No. 19498, in
the City of Chula Vista, County of San Diego, State of California, filed in the Office of the County
recorder of San Diego County, June 1, 2004 as Instrument No. 2004-0505129 of Official Records;
and
WHEREAS, the owner of the Project has submitted a Parcel Map that will merge and re-
subdivide the two parcels into a ma'<imum of thirty-five commercial units; and
WHEREAS, as part of the parcel map process, the owner is requesting the vacation of two
existing public drainage easements that were granted to the City, but are no longer needed; and
WHEREAS, one of the drainage easements consists of a 20' -wide strip of land granted to
the City v.ith the recordation of Parcel Map No. 18476 and the other easement was granted to the
City with the recordation of the Grant of Easement - For Drainage Purposes, recorded on May 15,
1996 as File No. 86-192753 of Official Records; and
WHEREAS, these two drainage easements are no longer needed because the temporary
drainage system that previously served the property has been replaced by a permanent drainage
system that is currently located entirely within the City's right-of-way; and
WHEREAS, in order to vacate, Council must adopt a resolution ordering the vacation of the
two drainage easements; and
WHEREAS, in accordance with the provlSlons set forth in Section 66445U) of the
California Government Code, the drainage easements will be vacated by the filing of the Parcel
Map within the County Recorder.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City ofChula Vista as
follows:
1. That it vacates the 20' -wide drainage easement as originally conveyed to the City
with the recordation of Parcel Map No. 18476 and the drainage easement
conveyed to the City with the recordation of the Grant of Easement - For
Drainage Purposes document, File No. 86-192753 of Official Records.
5-7
Resolution No. 2008-
Page 2
2.
3.
4.
Presented by:
That it authorizes and directs the City Clerk to endorse upon the Parcel Map, lor
the City Council, that the City Council has approved the Parcel Map, and that the
20' -wide drainage easement as originally conveyed to the City with the
recordation of Parcel Map No. 18476 and the drainage easement conveyed to the
City with the recordation of the Grant of Easement - For Drainage Purposes
document, File No. 86-192753 of Official Records are vacated.
That this Resolution shall not become effective unless and until the Parcel Map is
filed. In the event the Parcel Map is not filed within one year following the
adoption of this Resolution, this Resolution shall become void and be of no
further force and effect.
That it directs the City Engineer to advise the City Clerk of the completion of the
these conditions, and directs the City Clerk to then cause a certified copy of this
Resolution attested by her under seal, to be recorded in the Office of the County
Recorder.
Approved as to form by:
Jack Griffin
Director of E!lgineering and General Services
~L0 j tL,(A_~~ ;/7'-
Ann Moore ,.
City Attorney
H:\ENGINEER\RESOS\Resos2008\05-20.08\955 Lane-Vacation of Drainage EasementsREV revised by ec revised again by ec.doc
5-8
CITY COUNCIL
AGENDA STATEMENT
~\f~ (llY OF
~CHULA VISTA
5/20/08, Item~
ITEM TITLE:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A BUDGET TRAt'\lSFER FROM
THE EXISTING SOUTHWESTERN CHULA VISTA STREET
IMPROVEMENTS PROJECT (STL-306) TO FIRST A VENUE
IMPROVEl'vfENTS BETVVEEN NAPLES STREET AND PALOMAR
STREET (STL-303) AS NECESSARY TO COtvIPLETE THE
PROJECT, REJECTING THE LOWEST BID AND APPROVING
THE SECOND LOWEST BID, AND AWARDING CONTRACT
FOR THE "FIRST A VENUE IMPROVEMENTS BETWEEN
NAPLES STREET A..l'ID PALOMAR STREET IN THE CITY OF
CHULA VISTA, CALIFORNIA (STL-303)" PROJECT
DIRECTOR OF ENGn:~E ,G At"l) GENERAL SERVICES .(J'$-"
CITY MANAGER 4 U
ASSISTANT CITY ~ AGER ~'!
4/5THS VOTE: YES [gj NO D
SUBMITTED BY:
REVIEWED BY:
SUMMARY
On April 30, 2008, the Director of Engineering and General Services received sealed bids for the
"First Avenue Improvements Between Naples Street and Palomar Street in the City of Chula
Vista, California (STL-303)" project. The work to be done consists of the sidewalk
improvements and related street work along First Avenue between Naples Street and Palomar
Street in the City of Chula Vista. The work also includes all labor, material, equipment,
transportation, protection and restoration of existing improvements and traffic control necessary
for the project as shown on the drawings.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed project for compliance with
the National Environmental Policy Act (NEPA) and has determined that the project qualifies for
a Categorical Exclusion (subject to 58.5) pursuant to Section 24 of the Code of Federal
Regulations 58.35(a), subsection 1 [Acquisition, repair, improvement, reconstruction, or
rehabilitation of public facilities & improvements; e.g. curbs, sidewalks, repaving streets]
pursuant to Implementation Guidelines established by the U.S. Department of Housing and
Urban Development (RUD). Additionally, the Environmental Review Coordinator has also
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 (c) [Existing Facilities] of the State CEQA Guidelines. Thus, no
nlrther environmental review is necessary.
6-1
5/20/08, Item~
Page 2 of 4
RECOMMENDA nON
Council adopt the resolution.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
The Southwestern Chula Vista Street Improvements (STL-306) project is an eXlstmg ClF
established in FY 04/05 and is programmed for needed street improvements in the Castle Park
neighborhood in western Chula Vista; these improvements are funded through a combination of
Housing and Urban Development (HUn) CDBG funding and a $9.5 million HUn Section 108
Loan. The resolution proposed for City Council approval would construct full street
improvements within First Avenue, between Naples Street and Palomar Street and transfer
$1,802,240 in HUn Section Loan 108 funds into the project.. The remaining funds from the
Section 108 Loan will be utilized on future projects in the Castle Park neighborhood.
The general scope of the First Avenue project involves the excavation and grading, removal and
disposal of existing improvements, installation of AC pavement, crushed aggregate base, curb,
gutter, sidewalk, driveways, drainage improvements, pedestrian ramps, cold-planing, saw-
cutting, street lighting, pavement striping and marking. The work also includes all labor,
materials, equipment, transportation, protection of existing improvements and traffic control
necessary for the project and other work necessary to complete the project.
On April 30, 2008, Design staff received and opened bids from ten (10) contractors for the
construction phase:
CONTRACTOR BID AMOUNT
1. Southland Paving, Inc. - Escondido, CA Non-responsive
2. MJC Construction - Bonita, CA $1,158,627.22
3. Portillo Concrete, Inc. - Lemon Grove, CA $1,203,600.00
4. Tri-Group Construction & Development, Inc.- Poway, CA $1,273,580.00
5. L.B. Construction, Inc. - San Diego, CA $1,319,883.50
6 HT A Engineering & Construction, Inc. - Poway, CA $1,362,770.00
7. Palm Engineering Construction Company, Inc. - San Diego, CA $1,403,033.00
8. Koch-Armstrong General Engineering, Inc. - Lakeside, CA $1,431,158.90
9. Hazard Construction Company, Iny. - San Diego, CA $1,469,788.10
10. Heffler Company, Inc. - National City, CA $1,727,832.00
Strict adherence to the contract administration guidelines established by the State of California
and by the Federal Community Block Grant programs is required to avoid potential loss of future
funding. Upon close examination of the bid documents from all bids received, arid with the
advice of the City Attorney's Office, it was determined that Southland Paving, Inc., which was
the apparent low-bidder upon bid opening, had not complied with the regulations and guidelines
6-2
5/20/08, Item~
Page 3 of 4
presented in the bid package, because they failed to provide the necessary documents. Thus,
Southland Paving, lnc. is declared to be non-responsive and their bid package is disqualified.
The low bid by Jimenez lnc., dba MJC Construction, of $1,158,627.22 is $395,542.78 (25%)
below the Engineer's estimate of $1,554,170. The Engineer's estimate was based on average
prices for similar types of work completed during the last three years. Staffhas reviewed the low
bid and recommends awarding a contract in the amount of$I,158,627.22 to MJC Construction.
Design staff has verified the references provided by the contractor and has found their work to be
satisfactory. MJC Construction has also satisfactorily completed several CIF projects for the
City. The Contractor's License No. 754128 is current and active..
Disadvantaged Business Enterprise Goal
The bid documents set forth participation requirements per Federal Regulation for meeting the
disadvantaged and women-owned business goals. Jose Dorado, Community Development
Specialist, has reviewed the bid documents submitted by the three (3) lowest bidders.
Staff also reviewed Jimenez lnc's eligibility status with regard to federal procurement programs
and the status of the State contractor's licenses. Jimenez lnc.is not listed as excluded from
Federal Procurement Programs (list of parties excluded from Federal procurement or non-
procurement programs as of February, 2006).
Disclosure Statement
Attached is a copy of the contractor's Disclosure Statement as Attachment 1.
Wage Statement
Contractors bidding on this project were required to pay prevailing wages to persons employed
by them for work under this project. No special minority or women owned business requirements
were necessary as part of the bid documents. However, the "Notice to Contractors" was sent to
various trade publications in order to encourage disadvantaged businesses to bid on the 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 of the property, which is the subject ofthis action.
FISCAL IMPACT
FUNDS REQUIRED FOR THE PROJECT
A. Construction Contract Award Amount $1,158,627.22
(Jimenez Inc. DBA MJC Construction)
B. Sweetwater Authority (City Share of Water Facilities Relocation Costs) 107,750.00
C. Contingencies (approximately 10% of construction costs) $115,862.78
D. City Staff Costs (approx. 22% of total project cost) $400,000.00
(Environmental, Design, Survey, Construction Inspection)
E. City Oversight (ie: Soils Testing, Admin Cost) $20,000.00
TOTAL FUNDS REQUIRED FOR PROJECT $1,802,240.00
6-3
5/20/08, Item~
Page 4 of 4
FUNDS AVAILABLE FOR THE PROJECT
Existing Funds (Section 108 Loan Funds) - STL303 5950,082
Transfer in from STL306 (Section 108 Loan Funds) $852,158
TOTAL FUNDS A V AlLABLE FOR PROJECT $1,802,240.00
There is no direct fiscal impact to the General Fund as the funds for tills project will be provided
for by the Section 108 Loan, except for routine normal maintenance of the street facilities and
storm water best management practices upon completion of the construction and one-year
contractor maintenance period.
A TT ACHMENTS
1. Contractor's Disclosure Statement
Prepared by: Jeff ivfoneda, Sr. Civil Engineer) Engineering & General Services Dept.
M:\General Services\GS Administration\Council Agenda\STL-303 First Avenue Assessment Dist\STL-303 Award A113 FINAL. doc
6-4
A n,;CHMEj\J;"
i
--
CITY OF CHULA VISTA DISCLOSURE STATEMENT
Pursuant to Council Policy 101-01, prior to any action upon matters thaI wi.ll require discretionary action by the
Council, Pllll1__Jling COI:lII'jssloo a.TJC all OGler official bodies of L:'1e City, a statement of disclosure of certai..r:
Q\vnership or financial intereSIs, payments, or campaign contributions for a City ofChula Vista election must
be filed. The follovving information must be disclosed:
1, List the names of all persons ha;ing a financial interest in the property that is the subject of the
application or the contract, e.g., Qw'Uer, applicant, contractor, subcontractor, material supplier.
, rI', U 1f?r2.-. }I n'l ~1e.-z.-
2, If any person' identified pursuant to (1) above is a corporation or partnership, list the names of all
individuals with a $2000.invesrment in the business (corporation/partnership) entity.
"A-urn?- ;J!rn&1e--z..
3. If any 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
N/fJ'
4. Please identifY every person, including any agents, employees, consultants, or independent contractors
you have assigned to repr~sent you before the City in this matter.
u/11)IG12-- J/I11&1C- 7,./
5.. Has any person* associated with this contract had any financial dealings \v1th an official** of the City
ofChula Vista as it relates to tl:lis,contract within the past 12 months? Yes_ No~
54
6-5
If Yes, briefly describe the nature of the financial interest the official *' may have in this
.contract.
6. Have you made a contribution of more than $15,0 within. the past twelve (12) months to a current
member of the Chula Vista City Council? No \(Yes _ If yes, which Council member"
7. Have you provided more than $340 (or an item of equivalent value) to an official" of the Civj
of Chula Vista in the past twelve (12) months? (This includes being a source of income, money
to retire a legal debt, gift, loan, etc.) Yes _ No Y
If Yes, which official*' and what was the nature of item provided?
Date: .L)-i3C5-tJ S
~,~~
io tu~e.of Contractor/Applicant
rAVI E1U ',fft.y7e/C'Z--
Print or type name of Contractor/Applicant
*
Person is defmed as: any individual, firm, co-partnership: joint venture, association, social club,
fraternal organization, corporation, estate, trust1 receiver, syndicate, any other county, city,
municipality, district, or other political subdivision, -or any other group or combi.ilation acting. as a
unit.
..
Official includes, but is not limited to: Mayor, Council member, Planning Commissioner,
rv[ember of a board, commission, or committee of the Gty, employee, or staff members.
55
6-6
RESOLUTION NO. 2008-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A BUDGET TRANSFER FROM
THE EXISTING SOUTHWESTERN' CHULA VISTA STREET
IMPROVEMENTS PROJECT (STL-306) TO FIRST AVENUE
IMPROVEMENTS BETWEEN NAPLES STREET A..1'\fD
PALOMAR STREET (STL-303) AS NECESSARY TO
COMPLETE THE PROJECT, REJECTING THE LOWEST BID
AND APPROVING THE SECOND LO\VEST BID, Ai'\fD
A WARDING THE CONTRACT FOR THE "FIRST A VENUE
IMPROVEMENTS BETWEEN NAPLES STREET Ai'\fD
PALONIAR STREET IN THE CITY OF CHULA VISTA,
.CALIFOR..NLA. (STL-303)" PROJECT
WHEREAS, the project consists of the sidewalk improvements and related street work
along First A venue between Naples Street and Palomar Street in the City of Chuia Vista; and
WHEREAS, the work also includes all labor, material, equipment, transportation,
protection and restoration of existing improvements and traffic control necessary for the project
as shown on the drawings; and
WHEREAS, City staff has prepared plans and specifications for the "First Avenue
Improvements Between Naples Street and Palomar Street in the City of Chula Vista, California
(STL-303)" project; and
WHEREAS, on April 30, 2008, design staff received and opened bids from ten (10)
contractors for the construction phase:
CONTR~CTOR BID AMOUNT
1. Southland Paving, Inc. - Escondido, CA Non"responsive
2. MJC Construction - Bonita, CA $1,158,627.22
3. Portillo Concrete, Inc. - Lemon Grove, CA $1,203,60000
4. Tri-Group Construction & Development, lnc.- Poway, CA $1,273,580.00
5. L.B. Construction, lnc. - San Diego, CA $1,319,883.50
6. HT A Engineering & Construction, Inc. - Poway, CA $1,362,770.00
7. Palm Engineering Construction Company, Inc. - San Diego, CA $1,403,033.00
8. Koch-Armstrong General Engineering, Inc. - Lakeside, CA $1,431,158.90
9. Hazard Construction Company, Inc. - San Diego, CA $1,469,788.10
10. Heffler Company, lnc. - National City, CA $1,727,832.00
6-7
WHEREAS, Southland Paving, Inc., which was the apparent low-bidder upon bid
opening, had not complied with the regulations and guidelines presented in the bid package and
is declared to be non-responsive and their bid package is disqualified; and
WHEREAS, the low bid by Jimenez Inc., dba MJC Construction, of $1,158,627.22 is
$395,542.78 (25%) below the Engineer's estimate of $1,554, 170; and
WHEREAS, Staff has reviewed the low bid and recommends awarding a contract in the
amount 01'$1,158,627.22 to MJC Construction; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista accept bids and award the contract for the "First Avenue Improvements Between Naples
Street and Palomar Street in the City of Chula Vista, California (STL-303)" project to MJC
Construction, in the amount of $1,158,627.22 and authorize the expenditure of all available
contingencies as necessary to complete the project.
Presented by
Approved as to form by
Jack Griffin
Director of Engineering and General Services
~ "
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Ann Moore
City Attorney
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K:\ENGlNEER\RESOS\RESOS2-4\05-20-08I.Reso STL.303 AwardREV.doc
6-8
CITY COUNCIL
AGENDA STATEMENT
~L~"
~(f!:::. CITY OF
~CHULA VISTA
May 20, 2008
Item~
SUBMITTED BY:
ORDINA..l'lCE OF THE CITY OF COOLA VISTA
DESIGNATING VERY HIGH FIRE HA.ZARD SEVERITY
ZONES AS RECOl'vlivIENDED BY THE DIRECTOR OF THE
CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE
PROTECTION AS DESIGNATED ON MAPS l'vL\INTAINED IN
THE OFFICE OF THE CITY CLERK
DIRECTOR OF PLANNING AND BUILDIN~~
FIRE CH~ 1-'
ASSISTANT CITY MANJ~. EI,\. \1--;:::;'
CITY MANAGER I ~W
ITEM TITLE:
REVIEWED BY:
4 5THS VOTE: YES
NO X
BACKGROUND
Pursuant to Government Code Section 51179, the City must designate, by ordinance,
very high fire hazard severity zones in its jurisdiction within 120 days of receiving
recommendations from the Director of Forestry and Fire Protection. The City received
the Director's recommendations, a map identifying very high fire hazard severity zones
within Chula Vista. This ordinance designates these zones as required by State law.
ENVIRONMENT AL REVIEW
The Environmental Review Coordinator has reviewed the proposed acl1vlty 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) (5) 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.
RECOMMENDA nON
That the City Council place the ordinance on first reading.
7-1
-;
May 20, 2008, Item~
Page 2 of3
BOARDS/COMMISSIONS RECOMi\1ENDA TION
The Board of Appeals and Advisors at their Monday, April 14, 2008 meeting lmanimously
reccimniended adoption of the city of Chula Vista's Very High Fire Hazard Severity
Zones, as recommended by the Director of the California Department of Forestry and
Fire Protection.
DISCUSSION
The Oakland Hills fire in 1991 prompted the 1992 "Bates bill", Assembly Bill 337
(Government Code 51175 - 51189). It instructed the Director of Forestry and Fire
Protection (DFFP) to classify lands in the state in accordance with whether a very high
fire hazard is present so that public officials are able to take measures that will reduce the
potential intensity of uncontrolled fires that threaten to destroy resources, life, or
property. Pursuant to Government Code (Ge) Section 51179, within 120 days from
receiving the recommendations, local jurisdictions must designate, by ordinance, very
high fire hazard severity zones (VHFHSZ) in its jurisdiction.
Exhibit l:(1:he Very High Fire Hazard Severity Zones (VHFHSZ) Map, dated Aprj,j 03,
2008, identifies these zones in the City as recommended by the DFFP. iIhe
recommendations are a result of a model that took into account factors such as fire
history, existing and potential fuel, flame length, blowing embers, terrain, weather and
the likelihood of buildings igniting. There are approximately 3300 parcels that are
located fully or partially in a VHFHSZ.
Reducing wildfire threat is a two-part approach; 1) Reduce flammable material around
homes to keep direct flames and heat away from the side of buildings and, 2) construct
buildings so that they have less chance of catching fire from burning embers. GC 51182
addressed the first approach by requiring any person who owns, leases, controls, operates,
or maintains an occupied structure in a VHFHSZ to maintain the property as follows:
1. Provide a 100 foot defensible space; Vegetation management 30 feet around
structures or to the property line, which ever is nearer, arid do fuel modification to
the remaining 70 feet, or to the property line, which ever is nearer.
2. Keep the roof of structures free of leaves, needles or other dead vegetative
growth.
3. Trim tree branches so that they are at least 10 feet away from chimneys or
stovepipes, and maintain trees adjacent to or overhanging any structure free of
dead or dying wood.
4. Upon sale or transfer of the property, disclose to a prospective buyer or transferee
the fact that the property is located within a VHFHSZ and is subject to the
requirements imposed on VHFHSZ.
These requirements do not apply to areas of land or water acquired or managed for any of
the following purposes:
I. Habitat for endangered or threatened species by the State or Federal government.
7-2
May 20, 2008, Item~
Page 3 of3
2. Land kept as natural habitat for wildlife, plants or animals.
3. Open space lands that are environmentally sensitive parklands
4. :Lands having scenic values, as declared by the local agency or by state or federal
law.
As for the second part of the approach, recent State legislation directed the State Fire
Marshal (SFM), with the help of the DFFP and the Director of Housing and Community
Development (DHCD), to develop fire protection building standards for roofs, exterior
walls, structure projections, and structure openings of buildings located within areas
designated to be at a significant risk from wildfires. The Building Standards Commission
(BSC) adopted these standards as Chapter 7A of the 2007 California Building Code
(2007 CBC). Local enforcement of Chapter 7A takes effect July 1,2008. New buildings
located in VHFHSZ for which an application for a building permit is submitted on or
after July 1,2008, must comply with Chapter 7A.
Chapter 7 A requires the use of approved building products and construction methods, the
use of exterior wildfire exposure protection materials and construction methods for
exterior siding, windows; eaves vents, exterior doors and decks, and the enclosure of all
under- !loor areas and the' underside of decks to within six inches of the ground. The
ignition-resistant standards in Chapter 7 A are intended to protect buildings from being
ignited by flying embers which can travel as much as a mile away from the wildfire.
/
DECISION MAKER CONFLICT
Staff has reviewed the property holdings of the City Council and has found a conflict
exists, in that Council Member McCann has property holdings within 500 feet of the
boundaries of the property which is the subject of this action.
FISCAL IMP ACT
There is no direct fiscal impact to the City.
A TT ACHMENTS
1. Very High Fire Hazard Severity Zones [VHFHSZ] - Local Responsibility Areas
[LRA] map, dated April 3, 2008.
2. Minutes of April 14, 2008 Board of Appeals & Advisors Meeting.
Prepared by:
Lou EI-Khazen. Deputy Building Official & Justin Gipson, Fire Marshal
7-3
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Very High Fire Hazard Severity Zones [VHFHSZ] - Local Responsibility Areas [LRA]
(Recommended by ttle Direclor of tl1e C<lliforni<l Department of Foresfry and Fire Ploteclioll)
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.41To1CH/vI, EA/i L
MINUTES OF A REGULAR MEETiNG
BOARD OF APPEALS AND ADVISORS
. CITY OF CHULA VISTA, CALIFORNIA
April 14, 2008
Conference Room #137 inside Public Services Building
276 Fourth Ave. Chula Vista, CA 91910
5:15 PM
MEMBERS PRESENT: Chairman West, Vice-Chairman Turner, Members: Buddingh, Flach, Lopez,
Sides
MEMBERS ABSENT: Buencamino-Andrews (excused)
CITY STAFF PRESENT: Brad Remp, Assistant Director/ Building Official of Planning and Building; Lou
EI- Khazen, Deputy Building Official; Justin Gipson, Fire Marshal; Eileen
Dimagiba, Senior Office Specialist (Recording Secretary)
OTHERS PRESENT: None
CALL MEETING TO ORDER: Chairman West called meeting to order at 5:15 PM.
ROLL CALL: Members present constituted a quorum.
1. DECLARATION OF EXCUSED/UNEXCUSED ABSENTEEISM: None
2. APPROVAL OF MINUTES: MSC (West/Flach) (6-0-1) motion to approve the minutes of March 10,
2008 Regular Meeting.
3. NEW BUSINESS:
A. Ordinance Designating Very High Fire Hazard Severity Zones- By Lou EI-Khazen
Lou EI-Khazen, Deputy Building Official, presented a Powerpoint presentation on a
proposed ordinance to designate, by ordinance, very high fire' hazard severity zones in
Chula Vista's jurisdiction within 120 days of receiving recommendations from the Director
of Forestry and Fire Protection. A map identifying very high fire hazard severity zones
within Chula Vista was also included as an attachment to Board Members, for this
presentation. This ordinance will designate these zones as required by State Law. This
ordinance is being presented to the Board of Appeals & Advisors for motion to
recommend approval to the Chula Vista City Council to designate these very high fire
hazard severity zones and would be effective July 1", 2008. The presentation included
background information on the 1992 "Bates Bill", created after the Oakland Hills fire in
1991. This bill mandated the Director of Cal-Fire to evaluate fire hazard severity zones in
local jurisdictions, and recommend to the local jurisdictions to indicate where these zones
exist New requirements for residential homes for reducing wildfire threat were also
presented which included providing 100-feet of defensible space, keeping roof free of
vegetation growth, trimming tree branches at least 10-feet away from chimneys or
stovepipes, and to disclose to buyer or transferee the fact that the residential property is
within a Very High Fire Hazard Severity Zone (VHFHSZ). Chapter 7 A requirements were
also presented, which stated the use of approved building products and construction
methods that are ignition-resistant
7-5
Board of Appeals & Advisors
Meeting Minutes
Page 2
April 14, 2008
Justin Gipson, Fire Marshal, presented the details of the VHFHSZ Map. He indicated on
the map some unincorporated areas, such as Bonita Sunnyside, and also stated that
most of the areas on this map is undeveloped area as of right now. But these areas can
be future developments.
Comments on Lou EI-Khazen's presentation:
. Member Sides asked why would you not require additions or construction to homes to
comply with this ordinance? Lou answered and said that it is not currently required but when
Chula Vista adopts the Urban Wildlife Interface Code, it will be required.
. Member Turner asked why the increase in government code requirements? Was it a natural
escalation built into the legislation? Brad answered and said we needed to harden the
requirements for fire prevention, starting from experience from Oakland Hills fires in 1991
and since then.
. Member Turner asked if there was an estimate of the percent increase in building costs? Lou
answered and said that these requirements will add very little increase.
. Member Buddingh asked what is the definition of "defensible space"? Justin explained and
said that it is any area where you can do aciive management of the fuels that are there and
allow for room for some type of defense. For example, to also allow room for response time
for fire fighters to set up, management of vegetation, etc. Also, if you do not have 100-feet of
defensible space as required, Lou stated that you would be required to go up to the property
line.
. Member Sides asked why on the VHFHSZ Map are there "cut- out areas" and what about
their safety? Brad answered and said that there are areas like that because of the
typography, type of vegetation (low fire risk), and parcel lines. But through Chula Vista's
Wildland- Urban Interface Code (WUIC), they will also fall under the same requirements of
this ordinance.
MSC (West/Lopez) (6-0-1) motion to recommend approval of this ordinance to City Council
4. MEMBERS COMMENTS/CHAIRMAN'S COMMENTS/REPORTS: None
5. BUILDING OFFICIAL'S COMMENTS/REPORTS:
A Chula Vista Wildland- Urban Interface Code- presented by Justin Gipson
Justin Gipson, Fire Marshal, presented a Powerpoint presentation the Wildland-Urban Interface
Code (WUIC) specific to Chula Vista. Many different City departments such as Fire, Public Works,
Finance, and GIS have been involved in this. Another Fire Hazard Severity Zone Map, specific to
conditions here in Chula Vista was also presented for this code. These conditions included having
enough water to fight fires, especially in Eastern Chula Vista and the new home developments,
access roads for Chula Vista Fire Department, and defensible space requirements. Justin stated
that this document is very close to being finalized. He said thaUhis code is more restrictive than
Chapter 71'. requirements and addresses fire hazards to homes adjacent to areas designated as
"open space". For example, Justin pointed out the Rice Canyon area near Home Depot off of E. H
Street. This code was also created to help homeowners become educated on what types of "fuel"
or vegetation to have on their property, such as drought-tolerant vegetation. Referring to the Map,
Justin indicated on there that the "river bottom" area is highlighted indicating that it is prone to fire
danger (highlighted area heading West towards Ocean). Also, the overlapping areas (Blue and
Yellow/Red/Orange areas together) on the Map are areas where you need to meet both the State
and Chula Vista's WUIC requirements. Justin stated that the next steps in finalizing this Code will
be to finalize the draft, have it be reviewed by the stakeholders and get feedback, approval from
the Board of Appeals & Advisors, then approval from City Council for adoption.
Comments on Justin Gipson's presentation:
. Member Sides asked what was the requirement of space in between residential properties? Lou
said 20-feet, 1 O-feet on both sides of house.
7-6
Board of Appeals & Advisors
Meeting Minutes
Page 3
April 14, 2008
. Member Turner asked what is a "crossover" area (as indicated on WUIC-VHFHSZ Map) between
the State and Chula Vista? Justin answered and said we are using the WUIC requirements as the
"minimum requirements, then State comes in and works off of Chula Vista's requirements.
. Member Buddingh asked what is the definition of "fiammable vegetation"? Justin said that a list of
plants will be released to the home owners in the future. Member Buddingh commented that the
vagueness of this list might cause problems and confusion for homeowners, and might not be
enforceable by City.
. Member Lopez commented that these presentations were good and this is the "sign of the times"
and it's good that the City is being proactive on this.
B. Green Building Standards will be brought to Board of Appeals & Advisors within the next coming
months- City Council has decided that they want us to adopt new Green Building Standards, and
State anticipates that these new standards will be in affect by July 2009.
6. COMMUNICATIONS (PUBLIC REMARKS/WRITTEN CORRESPONDENCE): None
7. ADJOURNMENT: MSC (West/Flach) (6-0-1) adjournment of meeting at 6:47 pm. to the next regular
meeting in Planning and Building Conference Room #137 on May 12, 2008.
BRAD REMP, G.B.O.
ASST. DIR OF PLANNING & BUILDING/ BUILDING OFFICIAL
SECRETARY TO THE BOARD OF APPEALS & ADVISORS
MINUTES TAKEN BY:
EILEEN DIMAGIBA, SR. OFFICE SPECIALIST
PLANNING & BUILDING DEPARTMENT
(RECORDING SECRETARY)
7-7
ORDINA1"\fCE NO.
ORDINANCE OF THE CITY OF CHT..JLA VISTA
DESIGNATING VERY HIGH FIRE HAZARD
SEVERITY ZONES AS RECOM1\1ENDED BY THE
DIRECTOR OF THE CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION AS
DESIGNATED ON MAPS MAINTAIJ'iED IN THE
OFFICE OF THE CITY CLERK
WHEREAS, the California State Legislature has declared that the prevention of
fires is a matter of statewide concern; and
WHEREAS, the State Legislature has directed the Director of the California
Department of Forestry and Fire Protection (CM FIRE) to identify areas as very high
fire hazard severity zones in all counties .based on consistent statewide criteria and based
on the severity of fire hazard that is expected to prevail in those areas; and
WHEREAS, the detenrunation of an area as a very high fire hazard severity zone
is based on fuel loading, slope, fire weather, and other relevant factors; and
WHEREAS, the purpose of the designation of areas as very high fire hazard
severity zones is so that public officials are able to identify measures that will retard the
rate of spread, and reduce the potential intensity, of uncontrolled fires that threaten to
destroy resources, life, or property; and
WHEREAS, the director of CAL FIRE has transmitted to the City those areas
designated as very high fire hazard severity zones; and
WHEREAS, the City Council must designate, by ordinance, very high fire hazard
severity zones as recommended by the director of CAL FIRE, pursuant to Government
Code section 51179.
NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as
follows:
SECTION 1: It designates Very High Fire Hazard Severity Zones as recommended by
the Director of the California Department of Forestry and Fire Protection and as
designated on a map titled Very High Fire Hazard Severity Zones [VHFHSZ] - Local
Responsibility Areas [LRA] , dated April 3, 2008, and filed with the Office of the City
Clerk.
SECTION' II: This ordinance shall take effect and be in full'force on the thirtieth day
from and after its adoption.
7-8
Presented by
Brad Remp
Building Official
Presented by
Jim Geering
Fire Chief
7-9
Approved as to form by
-/:' , '
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Ann Moore
City Attorney
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ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
SUMMARY
CITY COUNCIL
AGENDA STATEMENT
~~ CITY OF
-~ (HUlA VISTA
Item No.: b
Meeting Date: 5/20/08
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING THE MAYOR TO ENTER
INTO A LAND OFFER AGREEMENT BETWEEN THE CITY
OF CHULA VISTA AND OV THREE TWO, LLC; JJJ & K
INVESTMENTS TWO, LLC; AND RR QUARRY, LLC FOR
CONVEYANCE OF 160 ACRES TO THE CITY FOR
UNIVERSITYIREGIONAL TECHNOLOGY PARK
DEVELOPMENT AND ACKNOWLEDGING THE OFFER OF
DEDICATION.
BUlLDI
DIRECTOR OF PLA
CITY MANAGER
ASSIST ANT CITY AN
~')
4/STHS VOTE: YES D NO ~
One of the key goals of the Chula Vista General Plan is the development of a UniversityIRegional
Technology Park. Successful implementation of the Land Offer Agreement would complete the
land acquisition necessary to accomplish this goal through the receipt by the City of 160 (100 acres
net) acres of developable land.
ENVIRONMENTAL STATUS
The Environmental Review Coordinator has reviewed the proposed activity for compliance with
the California Environmental Quality Act (CEQA) and has determined that there is no possibility
that the activity may have a significant effect on the environment; therefore, pursuant to Section
IS061(b)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Future
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Page 2 of 5, Item No.: S
Meeting Date: 5/20/08
entitlements associated with the land offer agreement will be subject to further environmental
review at the time specific projects are proposed.
RECOMMENDATION
That the City Council approve the resolution authorizing the Mayor to enter into the proposed
land offer agreement between the City and OV Three Two, LLC; JJJ & K Investments Two,
LLC; and RR Quarry, LLC.
BOARDS/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
Background: Since adoption of the 1993 Otay Ranch General Development Plan, the City of
Chula Vista has maintained the vision of an institution (s) of higher education within our corporate
limits. Progress was previously made through the acquisition of over 760 acres of land, for
university development and as an open space buffer as part of the Otay Ranch Preserve.
Recognizing the need for viable employment lands, the December 2005 General Plan Update
called for a Regional Technology Park use in conjunction with a university (ies).
In January 2006 the former City Manager requested the two key land owners (one was a land
owner, the other had an option on their land) work together on a land plan to then be reviewed by
City staff. The goal was a land plan that would work for both property owners and meet the
goals and policies of the General Plan and General Development Plan. Over the course of a
year, the two parties were not able to reach closure.
In December 2007 the Planning and Building Director sent both land owners a letter requesting
"an agreed-upon proposal" by January 12, 2007 or the City would initiate our own Land
Planning process, which would respect the property rights of the land owners, but be solely
based on the best interest of the community at large.
Since Spring of 2007 the Planning and Building staff and the City Attorney have been working
with OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR Quarry, LLC, in order to
create a land plan that would facilitate the future development of a university (ies) and a
Regional Technology Park while also providing equitable benefit to the land owners.
These negotiations have been extremely complex since the only acceptable outcome would be a
win/win for all parties. For the City this means; 1) a land plan that on its own merits is beneficial
to the City and carries out the goals of the General Plan and Otay Ranch General Development
Plan, and 2) dedication of land necessary for the university/regional technology park complex
and other benefits.
In the case of the landowner, there needs to be significantly greater benefit than the development
intensity they already enjoy through their existing development agreement. The draft
development agreement provides OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR
Quarry, LLC the opportunity to achieve a maximum of 7,350 residential units.
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Page 3 of 5, Item No.: B
Meeting Date: 5/20/08
Maior Terms of Agreement
Under the terms of the proposed land offer agreement, upon approval of entitlements, the
property owner would convey 160 acres (100 acres net), which has been designated as a portion
of the proposed "UniversityIRegional Technology Park" to the City ofChula Vista.
The agreement requires OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR Quarry,
LLC to provide the City of Chula Vista with Irrevocable Offers of Dedication (IOD's) for the
160 acres (100 acres net) of University/Tech Park Land within 5 days of execution of the land
offer agreement. The City would take title to the property upon approval of the requested
entitlements within the required time frames.
The Agreement sets forth the terms under which the City may accept this offer. Specifically, in
order to accept the offer of dedication, the City would be required to provide the following
considerations:
Approval of all stated entitlements for proposed development of their ownership
in Villages 3, 4,8,9 and 10. It should be noted that the City and property owners
are proposing to reconfigure portions of the City General PlanlOtay Ranch
General Development Plan. Under the Land Offer Agreement, the entitlements
include a General Plan Amendment, Otay Ranch GDP amendment, a SPA Plan,
and tentative map. The maximum residential unit count is for reconfigured
property under OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR
Quarry, LLC.
In accordance with the land offer agreement the processing of the above entitlements
would be completed within two years of a complete submittal(s).
The draft Land Offer Agreement provides OV Three Two, LLC; JJJ & K Investments Two,
LLC; and RR Quarry, LLC with the option of repurchasing the dedicated University/Tech Park
property if the City (or subsequent entity) should choose to use the property for non-
university/tech park or related purposes. The repurchase agreement provision expires upon the
earlier of either occupancy of 90% of the residential units within the project as evidenced by
final inspection notices or upon expiration of the amended Pre-annexation Development
Agreement.
The draft Agreement also provides that 60 acres of land currently owned by the City be
conveyed to the Owner. Although this land is currently designated for development, it is
considered challenging to develop. It would be extremely expensive for the City to provide
infrastructure to this site for development of any university related uses. The Owner intends on
negotiating with the wildlife agencies to convey this land to them to use as open space in
exchange for permission to develop on other sites currently designated for preserve.
The Draft Agreement also provides for the transfer of up to 15% of the residential units between
Villages within Otay Ranch. Any transfer greater than 15% requires approval by the Planning
and Building Director based upon specific requirements. Both City staff and OV Three Two,
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Page 4 of5, Item No.: S
Meeting Date: 5/20/08
LLC; JJJ & K Investments Two, LLC; and RR Quarry, LLC believe these provisions will
provide the necessary flexibility to create better Village plans.
The agreement includes a 30-day preliminary review of the conditions of approval for the SPA
Plan, as well as the draft Public Facilities Financing Plan, following close of the public review
period for the draft EIR. During this time, the applicant may review proposed conditions and
requirements for the project, and may decide to stop processing the entitlements if OV Three
Two, LLC; JJJ & K Investments Two, LLC; and RR Quarry, LLC determines that the proposed
conditions would render the project economically infeasible.
Analysis
This offer agreement provides the City with an opportunity to obtain the remaining significant
portion of the proposed UniversityIRegional Technology Park Site, through providing certain
considerations in conjunction with future entitlements for the Otay Ranch Villages 3, 4, 8, 9 and
10. Implementation of the subject land offer agreement in conjunction with the recently adopted
land offer agreement (with OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR
Quarry, LLC) and previously acquired property will bring the total university/regional
technology developable park acreage to 345 acres. In order to assemble the university/tech park
acreage in a usable and contiguous configuration, the land offer agreement calls for the trading of
property currently owned by the City of Chula Vista for property owned by OV Three Two,
LLC; JJJ & K Investments Two, LLC; and RR Quarry, LLC, as well as acquisitions of an
additional 100 acres from OV Three Two, LLC; JJJ & K Investments Two, LLC; and RR
Quarry, LLC. Development of the university (ies) and regional technology park will over time
transform the City of Chula Vista from a bedroom community to a more balanced community
with both housing and high paying jobs. This would fulfill key City General Plan goals.
Attached is a preliminary Site Utilization Plan, which depicts locations of land uses, approximate
densities and the location of major arterials. Although we are aware that there are always
refinements to any land plan as we work with the applicant through the entitlement process, we
have conducted a preliminary analysis and we believe the proposed land plan can be consistent
with and accomplished within the overall policy framework established by the City's General
Plan. This plan would also preserve the character already established within the Otay Ranch
Master Planned Community. Staff is supportive of the additional residential units as authorized
by the entitlements subsequent to this agreement due to the need for adequate housing to support
the university and regional technology park.
It should be emphasized that both the City Council and Planning Commission will have full
discretionary authority to consider the proposed plan changes at the time they are presented in a
public hearing, with benefit of a final EIR and staff analysis. It is also important to note that the
provisions of the current Growth Management Ordinance will continue to be applicable in order
to insure that necessary infrastructure is delivered in a timely manner.
It should be noted that implementation of the subject land offer agreement (with the one
previously entered into with Otay Land Company) will require a significant commitment of staff
resources that are currently not available. Staff is recommending that the City Council approve
the attached agreement, and direct staff to move forward to complete a project
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Page 5 of 5, Item No.: e
Meeting Date: 5/20/08
staffing/recruitment plan and processing schedule, which will provide for completion of
processing of entitlements in accordance with the overall schedule set forth in this agreement.
DECISION-MAKER CONFLICTS:
No Property within 500 feet:
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 subject to this action.
FISCAL IMP ACT
The applicant would pay for all costs associated with processing the terms of this agreement.
Prepared by: James D. Sandoval, Director of Planning and Building
Attachment:
Draft Land Offer Agreement (including exhibits)
J:\planning\jim\COUNCIL AGENDA STATEMENT Univ Land Offer Agreement lPB 5~20-08.doc
8-5
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AUTHORIZING THE MAYOR TO
ENTER INTO A LAND OFFER AGREEMENT
BETWEEN THE CITY OF CHULA VISTA AND OV
THREE TWO, LLC; JJJ & K INVESTMENTS TWO, LLC;
AND RR QUARRY, LLC FOR CONVEYANCE OF 160
ACRES TO THE CITY FOR UNIVERSITY/REGIONAL
TECHNOLOGY PARK DEVELOPMENT AND
ACKNOWLEDGING THE OFFER OF DEDICATION.
WHEREAS, in adopting the Otay Ranch General Development Plan in 1993 the
City of Chula Vista formally declared its intent to plan for and pursue an institution(s) of
higher learning within it's municipal boundaries; and
WHEREAS, the updated City of Chula Vista General Plan in December 2005
recognized the many benefits of a Regional Technology Park, which would be associated
with the University(ies); and
WHEREAS, under the terms of the proposed Land Offer Agreement, JJJ&K
Investments Two, LLC, OV Three Two, LLC and RR Quarry, LLC (collectively
"Owner") would agree to convey 160 acres which will be utilized as a portion of the
proposed "University / Regional Technology Park Site";
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula
Vista does hereby approve the Land Offer Agreement between the City of Chula Vista and
Owner for conveyance of 160 acres to the City for UniversityIRegional Technology Park and
associated mitigation purposes, a copy of which shall be kept on file in the Office of the
City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is
hereby authorized and directed to execute said Agreement on behalf of the City of Chula
Vista and for staff to acknowledge the offer to dedicate 160 acres.
James D. Sandoval, AICP
Director of Planning and
Building
Approved as to form by
CY1llA~
Ann Moore -
City Attorney
Presented
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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
~~
Ann Moore
City Attorney
Dated:
1/6/00
LAND OFFER AGREEMENT BETWEEN
OV THREE TWO, LLC; JJJ&K INVESTMENTS TWO,
LLC; RR QUARRY, LLC AND.
THE CITY OF CHULA VISTA
8-7
CORDING REQUEST BY:
ITY OF CHULA VISTA
76 Fourth Avenue
Chula Vista, CA 91910
Above Space for Recorder's Use
lAND OFFER AGREEMENT
This Land Offer Agreement ("~ement") is entered into to be effective as of
2008, by and between JJJ&K Investments Two, LLC; OV Three Two, LLC; and
RR Quarry, lLC, all Delaware limited liability companies (" ref=ed to collectively as
"Owner") and the City of Chula Vista, a political subdivision of the State of California
("City").
RECITALS
A. Owner, owns the undeveloped real property located in the City as more
particularly described and shown on the attached Exhibit "A" (the "Property")
B. The Property is part of a master planned community commonly known as
pottions of Villages 3, 4, 8, 9 and 10 of the Otay Ranch Project.
c. City has requested Owner to convey to City one hundred sixty (160) acres
within the Property designated for the development of a facility for higher education and other
compatible land uses as described herein ("University Property") The University Property is
shown and described on Exhibit "B"
D. City and Owner desire to exchange certain additional properties so as to
allow City to assemble its property ownership in a configuration that is conducive to
the planning of a university campus and regional technology park.
E. Following the exchange of properties referenced in Recital D above,
Owner will own the property depicted in attached Exhibit "c" (the "Reconfigured
Property") and described in Paragraph 4.3.2 below.
F. Owner desires certain development entidements for the Reconfigured
Property that requires processing and discretionary review by the City.
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G. Owner and City by entering into this Agreement shall set forth the
terms and conditions precedent for Owner's conveyance and City's acceptance of the
University Property, as well as the process for the City's consideration of cerrnin development
entitlements for the Reconfigured Property.
NOW, THEREFORE, in consideration of the above recirnls and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Owner and City agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. This Agreement uses a number of terms having specific meanings, as
defmed below. These specially defined terms are distinguished by having the initial
letter capitalized, when used in this Agreement. The defined terms include the
following:
"Development Agreements" means the Restated and Amended Pre-Anne""tion
Development Agreement between the City and Jewels of Charity recorded August 6,
1996, Restated and Amended Pre-Ann=tion Development Agreement between the City
and SNMB, LID recorded August 6, 1996, and Restated and Amended Pre-Ann=tion
Development Agreement between the City and United Enterprises recorded August 6,
1996.
"Effective Date" means the date set forth in the first paragraph of this
Agreement.
"Entitlements" means: (i) amendments to the City's General Plan and the Otay
Ranch General Development Plan which establish 7350 as the maximum number of
residential units to be pennitted for development, and amendments to the Development
Agreements to include only the provisions specifically set forth on Exhibit "D"; (ii)
Sectional Planning Area Plans ("SPA Plans") for the Reconfigured Property designating the
pennitted land uses, densities and intensities of development, which are in substantial
compliance with the Land Use Plan depicted on Exhibit "E"; (ill) tentative subdivision
maps to subdivide the Reconfigured Property in accordance with the SPA Plans and
related entitlement documents, such as Public Facilities Financing Plans, necessary to
implement the SPA Plans, as may be identified in the Processing Agreement; and
(iv)appropriate California Environmental Quality Act compliance for the discretionary
actions outlined in items (i),(ii) and (ill) above.
"Growth Program" means the City policies and standards intended to regulate
the timing and phasing or rate of growth within the City, as set forth in the City's Growth
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Management Element of the City's General Plan in effect as of the Effective Date of
this Agreement.
"Hazardous Materials" means any substance, material or waste which is or
becomes (1) regulated by any local or regional governmental authority, the State of
California or the United States Government as hazardous waste, (ii) defined as a "solid
" II I dge" lIh d "" el hazard "" octed haz d
waste, s U , azar OllS waste, extrem y OllS waste, resttl. at Olls
waste", "Non-RCRA hazardous waste," "RCRA hazardous waste", or "recyclable material";
under any federal, state or local statue, regulation or ordinance, including without limitation
Sections 25115, 25117, 25117.9, 25120.2, 25120.5, 251227, 25140, 25.141 of the California
Health and Safety Code; (iii) defined as "Hazardous Substance" under Section 25316 of
the California Health and Safety Code; (iv) defined as a "Hazardous Material",
"Hazardous Substance", or "Hazardous Waste" under Section 25501 of the California
Health and Safety Code; (v) defined as a "Hazardous Substance" under Section 25281
of the California Health and Safety Code; (vi) asbestos; (vii) petroleum products,
including without limitation, petroleum, gasoline, used oil, crude oil, waste oil and any
fraction thereof, natural gas, natural gas liquefied, natural gas or synthetic fuels, (viii)
materials defined as hazardous or extremely hazardous pursuant to the California Code of
Regulations; (ix) polychlorinated biphenyl s; (x) defined as a "Hazardous Substance"
pursuant to Section 311. of the Federal Water Pollution Control Act (33 U.S.c. Section
.1251, et seq.); (xi) defined as a "Hazardous Waste" pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.c. Section 6901., et seq., (xii)
defined as a "Hazardous Substance" or "Mixed Waste" pursuant to Section 101 of the
Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.c.
Section 9601, et seq. and regulations promulgated hereunder; (xiii) defined as a
"Hazardous Substance" pursuant to Section 401.1.5 of the Clean Water Act, 40 C.P.R.
116; OR (xi.v) defined as an "Extremely Hazardous Substance" pursuant to Section 302
of the Superfund Amendments and Reauthorizations Act of 1986, 42 U.S.c. Section
11002, et seq.
"Irrevocable Offer of Dedication/ Offer of Dedication" means the
document, substantially in the form attached as Exhibit "F," allowing for the transfer
of ownership of the University Propetty to the City in accordance with Government
Code Section 7050.
"Processing Agreement" means the Project Staffing and Processing
Agreement, to be entered into by the City and Owner, in which the timing and
processing of the Entidements will be set forth therein.
"Project" means the development of the Reconfigured Property consistent
with the provisions of the Entidements, applicable City policies and standards
including the City Growth Program and Ordinance.
"Property" means the real property described and shown in Exhibit "A" to this
Agreement.
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"Reconfigured Property" means the property described and shown in attached
Exhibit "e".
"Term" shall mean the period of time from the Effective Date until the
termination of this Agreement as set forth in Paragraph 4.3.
"Third Party Litigation" means any claim, action, referendum or proceeding
f1!ed and served against the City and/or Owner by anyone not a party to this
Agreement or their agents or successors in interest to challenge, set aside, void or annul
the approval of this Agreement or the Entidements, including without limitation, attacks
upon California Environmental Quality Act compliance.
"University Property" means the real property described and shown on attached
Exhibit "B".
ARTICLE 2
OFFER OF DEDICATION
2.1 Offer of Dedication. Concurrently with the execution of this Agreement,
Owner shall submit to the City an Irrevocable Offer(s) of Dedication, for the
University Property to allow for the use of the University Property for higher
educational purposes and related compatible uses, active public recreation, quasi public,
and all other uses, including residential, industrial and commercial. The uses set forth for
the University Property shall be referred to collectively as the "Permitted Uses".
Notwithstanding the foregoing, in the event the City determines that the University
Property or a portion thereof, will be developed for any Permitted Uses other than (i)
higher educational uses, including a university campus; (ii) university-related housing
(student and/or faculty housing); (iii) a regional technology park or campus intended to
attract and promote a university; or (iv) uses ancillary to a university, such as a
bookstore, coffee house or copy center, or other accessory land uses commonly
associated with higher educational institutions (uses other than those described in
subsections (i) through (iv) collectively shall be referred to as "Non-university
Development"), Owner shall have the right to repurchase that portion of the University
Property proposed for Non-university Development in accordance with the terms and
conditions set forth herein ("Repurchase Right"). The Repurchase Right shall take effect
upon the City's acceptance of the Irrevocable Offer of Dedication for the University
Property and expire upon the earlier to occur of (i) the expiration of the Development
Agreements as amended herein; or (ii) the occupancy of ninety percent (90%) of the
residential units within the Project, as evidenced by final inspection notices
("Repurchase Right EXpiration"); unless terminated earlier as to all or a portion of the
University Property in accordance with Paragraph 2.3. The Repurchase Right shall be
included in the Irrevocable Offer(s) of Dedication recorded concurrently with the
recordation of this Agreement and shall be a covenant running with the University
Property. City's acceptance of the Irrevocable Offer(s) of Dedication shall be subject to
the terms of this Agreement.
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2.2 Offer to Purchase. In the event the Repurchase Right is triggered in accordance
with Paragraph 2.1, the City shall promptly offer to sell that portion proposed for
Non-university Development to Owner ("Offer to Purchase"). The Offer to Purchase
shall include the following:
(i) Purchase Price (fair market value, subject to Paragraph 2.2(iv)
below), to be paid in cash.
(ii) Closing Date, not sooner than 60 days from the date the Purchase
Agreement is executed.
(Ui) The Purchase Agreement shall be substantially in the form attached hereto as
Exhibit "G".
(iv) If the parties do not agree on the fair market value of that portion of
the University Property proposed for Non-university Development, then
the fair market value of said property shall be determined by an appraiser
acceptable to both parties. If the parties are unable to agree on an
appraiser within ten (10) days after the City delivers the Offer to Purchase
to Owner ("Delivery Date"), within twenty (20) days after the Delivery
Date, each party shall each name an. appraiser who is a member of MAl
or an equivalent organization and has at least five (5) years experience
appraising similar properly in. the Chula Vista area. If either party fails to
appoint such an appraiser within such period, and such failure continues
for more than five (5) days following written notice from the other party,
the appraiser appointed by the party giving such notice shall proceed to
make the appraisal as herein set forth, and the determination thereof
shall be conclusive on both parties. The two (2) selected appraisers will
each prepare an appraisal report within thirty (30) days after their
appointment. If the two (2) appraisers' determination of the fair market
value of said property is within ten percent (10%) of each other, then
the fair market value of the same will be the arithmetic average of the
two (2) appraisals. Otherwise, the two (2) selected appraisers will appoint a
third appraiser within ten (10) days after issuance of their appraisal reports,
("Deciding Appraiser") meeting the same qualifications and who has no
preexisting material [mancial or business relationship with either of the
appraisers, City or Owner. If the two (2) selected appraisers fail to appoint a
Deciding Appraiser within such period, then either party tnay petition a
court of competent jurisdiction to appoint a Deciding Appraiser
meeting the qualifications set forth herein, in the satne manner as
provided for the appointment of an arbitrator pursuant to Califomia
Code of Civil Procedure section 1281.6. The Deciding Appraiser may
not receive or consider the appraisals prepared by the other two (2)
appraisers. The Deciding Appraiser will deliver its report to the parties
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within thirty (30) days after its appointment and the fair market value of
said property will be either: ~) if the fair market value determined by the
Deciding Appraiser is between the values determined by the first two
(2) appraisers, the arithmetic average of the two (2) appraisals that are
closest to each other; or, (ii) if the fair market value determined by the
Deciding Appraiser is higher or lower than both of the values determined
by the first two (2) appraisers, the fair market value determined by the
appraisal of the first two (2) appraisers that is closest to the value
determined by the Deciding Appraiser. The parties shall share equally the
fees and expenses of the appraisers joindy named, if any, but each party
shall be responsible for the fees and expenses of any appraiser named
solely by that party. Each party shall bear its own expenses in presenting
evidence to the appraisers. The determination of fair market value by the
appraiser(s) shall be final and binding on the parties.
NOTICE: BY INITIALING IN THE SPACE BELOW, YOU ARE
AGREEING TO HAVE THE DEIERMINATION OF THE FAIR MARKET
VALUE OF THAT PORTION OF THE UNIVERSITY PROPERTY
PROPOSED FOR NON-UNIVERSITY DEVELOPMENT AS PROVIDED IN
THIS PARAGRAPH 2.2 (iv) DECIDED BY NEUTRAL ARBITRATION AS
PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY
RIGHTS YOU MIGHT POSSESS REGARDING THE FAIR MARKET VALUE
TO HAVE LIT1GATED IN A COURT OR JURY TRIAL. SUCH ARBITRATION
WIIL NOT APPLY TO ANY OTHER DISPUTES OR MATTERS UNDER
THIS AGREEMENT. BY INmALIZING IN THE SPACE BELOW, YOU ARE
GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL,
UNLESS THESE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS
PARAGRAPH 2.2 (iv). IF YOU REFUSE TO SUBMIT TO ARBITRATION AS
SET FORTH HEREIN AFTER AGREEING TO THIS PROVISION, YOU
MAY BE COMPEUED TO ARBITRATE UNDER 'THE AUTHORITY OF 'THE
CALIFORNIA CODE OF CIVIL, PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY. YOU HAVE READ
AND UNDERSTOOD THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THIS PARAGRAPH 2.2(iv) TO NEUTRAL
ARBITRATION.
OWNER'S INITIALS:
CITY'S INITIALS:
2.3 Repurchase Right. City and Owner agree to negotiate in good faith the
Purchase Price contained in the Offer to Purchase, provided however, if City and
Owner can not agree on the Purchase Ptice within twenty (20) days after the City delivers
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the Offex to Purchase to Owner, the Purchase Price shall be determined in accordance with
Paragraph 2.2(iv). Owner shall have ten (10) days from the date Owner is notified of the
final determination of fair market value pursuant to Paragraph 2.2(iv) within which to
notify the City whether it intends to exexcise its Repurchase Right. If Owner declines to
exercise the Repurchase Right or fails to timely notify City of its determination, the
Repurchase Right shall be terminated as to that portion of the Univexsity Property
proposed for N on-univexsity Development In such event, the City shall have a right to
proceed with the proposed development or sale at the same or higher price than that set
forth in the Offer to Purchase, and equivalent terms. Thereafter, if the City decides to
change the price of said property to be less than that set forth in the Offex to Purchase or
to change othex material terms of the same, City shall provide Owner with a new offer to
purchase before offering the University Propexty to any other prospective purchasers
("Renewed Right to Purchase"). The Renewed Right to Purchase shall be governed
by the terms of this Agreement. The Renewed Right to Purchase shall expire concurrently
with the Repurchase Right Expiration. The Repurchase Right and Renewed Right to
Purchase shall terminate prior to the Repurchase Right Expiration as to any portion of
the University Property for which Owner declines to exercise such rights. Owner
agrees to deliver to City within ten (10) business days of City's written request, a quitclaim
deed releasing the Univexsity Property, or a portion thexeof, from the provisions of the
Repurchase Right and Renewed Right to Purchase upon the expiration or earlier
termination of said rights as to all or a portion of the University Property.
2.3.1 Effect of Conveyance on Repurchase Right. At no time
shall more than one legal entity possess the Repurchase Right; The Repurchase Right
shall terminate as to any portion of the Reconfigured Property conveyed by Owner to a
third party which conveyance comprises less than the total Reconfigured Property owned
by Owner immediately prior to the conveyance. For example, if Owner conveys to a
developer thitty pexcent (30%) of the Reconfigured Property, the Repurchase Right shall
terminate as to the thitty pexcent (30%) conveyed. Undex this example, the Repurchase
Right would not terminate as to the remaining seventy percent (70%) of land retained
by Owner. If the Owner conveys the entirety of the Reconfigured Property at anyone
time (a "bulk-sale"), the Repurchase Right shall not terminate and shall conrinue to run
with the land conveyed in the bulk-sale. Using the example above, if Owner
subsequently conveyed the remaining seventy percent (70%) of the Reconfigured
Property in a bulk-sale to a developer, the Repurchase Right would not terminate as a
consequence of such conveyance.
2.3.2 No Vested Development Rights. Owner acknowledges and
agrees that neither this Agreement nor the Development Agreement confer vested
development rights upon any portion of the University Property acquired by Owner
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pmsuant to the Repmchase Right and Owner shall he subject to applicable City land use
regulations with regard to any future applications to develop said property.
2.4. Execution of Offer. If the Owner exercises the Repurchase Right for
that portion of the University Property proposed for Non-university Development,
Owner agrees to execute the pmchase agreement, in substantially the form attached
hereto as Exhibit "G" within forty five (45) days after the determination of fair market
value pmsuant to Paragraph 2.2 (iv).
2.5. Title Insurance. Within twenty (20) days of the Effective Date, Owner shall
have obtained, at its expense, title insmance naming the City as the insmed and,
guaranteeing fee title, subject to any exceptions or conditions approved by the City, for
the University Property from Chicago Title Insmance Company in an amount
reasonably agreed upon by the parties representing the estimated fair market value of
the properties as of the Effective Date. Owner shall maintain said title insmance for
the individual properties in full force and effect until the City has accepted the
Irrevocable Offers of Dedications for the University Property.
2.6. Encumbrances. The Owner or successors-in-interest to Owner, may place
liens, encumbrances and other title exceptions on the University Property and
Owner's Exchange Property, up until the time frames set forth herein for the
respective properties; provided, however such liens, encumbrances, and other
exceptions to title are removed from the title to said properties in accordance with the
terms of this Agreement. Owner shall provide the City with written notice of any
liens, encumbrances, or other exceptions placed on the respective properties within
thirty (30) days of its placement on said properties. Notwithstanding any provision of
this Agreement, Owner agrees that prior to the City's acceptance of the Offer of
Dedication for the University Property and the exchange of the properties, as set
forth in paragraph 4.1 herein, it shall take any and all actions necessary to provide each
of the respective properties to the City free and clear of all liens and encumbrances other
than: (i) any easements and rights-of-way determined upon final approval of the
Entitlements required for development of the Project which do not materially
interfere with the intended use of the University Property or Owner's Exchange
Properties for the Permitted Uses; (ii) prorated non-delinquent real estate taxes,
special taxes and assessments; and (iii) those exceptions to title that are approved by the
City (collectively (1), (2), (4), (8), and (11) through (20)of Preliminary Title Report,
prepared by Chicago Title Company, dated Aptil 24, 2008, and. are referred to as the
"Permitted Exceptions"). In addition, Owner shall not pledge the rights to this
Agreement as security for any of its other obligations.
2.7 Removal of Encumbrances. No later than five (5) calendar days prior to
the first public hearing on the Entitlements, Owner shall remove all liens,
encumbrances and any other exceptions, other than the Permitted Exceptions, and any
other exception not approved by the City from the title to the University Property and
Owner's Exchange Property or otherwise demonsttate, to City's satisfaction, an
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irrevocable commitment and ability to remove said tide matters immediately upon
approval of the entitlements. Owner shall provide the City with an updated Title
Report for the University Property and Owner's Exchange Property five (5) calendar
days prior to the last public hearing for the Entidements as set forth in this Paragraph.
Owner understands and agrees that if Owner fails to remove all liens, encumbrances and
those exceptions, other than the Permitted Exceptions, not approved by the City, in
the time frames set forth herein, this Agreement and the Processing Agreement shall be
terminated and any remaining hearings on the Entidements shall be cancelled and the
application for the Entidements shall be considered withdrawn by the Owner.
2.8. Hazardous Waste Report Owner shall provide the City within thirty (30) days
of the Effective Date of this Agreement with a Phase One Hazardous Waste Report on
the University Property by a professional firm acceptable to the City and again not less
than thirty (30) days prior to the first public hearing for the Entidements with an
update of the Phase One Hazardous Waste Report for the respective properties by the
same professional firm. Owner shall be responsible for the costs of both reports.
Owner understands that the City's acceptance of the Offer of Dedication is
conditioned upon the City's approval of said report and that the City has entered into
this Agreement contingent on the University Property being free and clear of any
environmental condition which would be a violation of any applicable federal, state or
local law, ordinance or regulation relating to Hazardous Materials. Owner further
understands and agrees that Owner, in addition to any obligations as the property owner,
is fully responsible for the administration and oversight of the environmental condition
of the University Property until the City has accepted the Offer of Dedication for
the University Property . If after the City's review of the updated Phase One
Hazardous Waste Report for said properties, the City determines the environmental
condition of the University Property is not acceptable to the City, Owner may, in its
discretion, cure said condition within thirty (30) days of City's written notice to
Owner that such property is not acceptable. If Owner decides not to cure the
condition of the University Property, this Agreement and the Processing Agreement
shall be terminated and any applications submitted for the Project shall be considered
withdrawn by the Owner and any and all hearings for the Entidements shall be
cancelled.
2.9 Transfer of Units. Owner may transfer, at its discretion, up to fifteen
percent (15%) of the units allocated to a village within the Project to another village
within the same Project The Planning Director may approve, in his or her discretion,
any transfer of units more than fifteen percent (15%) or any transfer of units to
another village within Otay Ranch but not within the Project, if all of the following
requirements are satisfied:
(i) The transfer of units between villages is consistent with the
village design policies and the Entidements for the village into which the units
are being transferred.
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(ll) The total number of units for the Project is not exceeded,
(iii) Public facilities and infrastructure including schools and parks are
provided based on the final number of units within each village or Planning Area,
(iv) The planned identity of the villages are preserved including the
creation of pedestrian friendly and transit-oriented development; and
(v) Preserve conveyance obligations will continue to be based on the final
map development area.
ARTICLE 2
OFFER OF DEDICATION
3.1. Entitlements Processing. Owner will file with City all applications and
pay all applicable fees for the review, processing, and consideration of the Entitlements
by the City. City will diligently process, in accordance with the schedule set forth in the
Processing Agreement, the Entitlements for final consideration by the City Council.
Notwithstanding the foregoing, the City's acceptance of the Offer of Dedication is not
contingent on the time frames associated with the processing of the Entitlements as set
forth in the Processing Agreement, except that final approval of the Entitlements must
be received by the Owner within the time frame set forth in Paragraph 3.3 herein.
Owner understands and agrees that the processing and/or approval of final maps, grading
permits and other ministerial permits are not subject to this Agreement and the
acceptance of the Offer of Dedication to the City shall not be contingent on Owner
receiving such ministerial approvals. In addition, Owner acknowledges and agrees that
the City has not made any representations or warranties as to the viability of any of the
land uses contemplated in the Entitlements.
3.2. Review Period. Owner shall have thirty (30) days after the final draft for the
Entitlements (which include all of the conditions and mitigation measures associated
with said documents) ("Final Draft Entitlements") have been completed by the City, to
review such documents and decide whether to proceed with processing the
Entitlements. During the Owner's thirty-day review period, City agrees to meet with
Owner in good faith to discuss the draft documents and consider any changes Owner
may request. Owner shall notify the City in writing, at the conclusion of the thirty-day
review period, as to whether Owner wishes to continue processing the
Entitlements. Owner may decide to stop processing the Entitlements if Owner
determines, in its sole discretion, that it is economically infeasible or undesirable to
continue. If City is notified to stop processing Entitlements and the reasons thereof,
this Agreement shall terminate, and the application for the Entitlements shall be
considered withdrawn by the Owner.
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3.3. Approval of Entidements. If the Entidements are approved by the City Council in
substantially the form of the Final Draft Entitlements on or before twenty four (24)
months after Owner has submitted a completed application for the Project to the
City, as such time may be extended as provided for in Paragraph 5.9 (Force
Majeure), City shall accept the Offer of Dedication for the University Property within
thirty (30) days after the expiration of all applicable statutes of limitations to challenge the
Entitlements and any additional time caused by Third Party Litigation, as described in
Paragraph 3.4 herein. In the event of Third Party Litigation, City shall accept the
Offer of Dedication within thirty (30) days after entry of a final, nonappealable
judgment affirming the validity of the Entitlements or other resolution mutually
acceptable to the parties ("Favorable Outcome"). In the event of any outcome to the
Third Party Litigation other than a Favorable Outcome, the parties agree to meet and
confer regarding corrective action necessary to preserve the Entitlements. In the event
Owner or City determines it is not in Owner's or City's interest to proceed with the
corrective action necessary to preserve the Entitlements, this Agreement shall
terminate and any Entitlements that have been approved by the City shall be
considered void ab initio and be of no effect. In the event Owner and City elect
to proceed with the corrective action necessary to preserve the Entitlements, the City
shall accept the Offer of Dedication for the University Property within thirty (30) days
after entry of a final, nonappealable judgment affirming the validity of the Entitlements.
In the event the City does not approve the Entitlements in substantially the form of
the Final Draft Entitlements or in such corrected form as necessary to preserve the
Entitlements, on or before twenty four (24) months after Owner has submitted a
completed application for the Project to the City, as such time may be extended as
provided for in Paragraph 5.9 (Force Majeure), any Entidements received by Owner
shall be considered to have been withdrawn by Owner and City's action on the
Entitlements shall be void ab initio and be of no effect.
3.4 Third Par1;y Litigation. In the event of the occurrence of Third Party Litigation,
the term of this Agreement shall be extended for the period of the pendency of the
Third Party Litigation or until such time as either the City or Owner (irrespective of who
is named in the Third Party Litigation) decides it is no longer desirable to defend against
the Third Party Litigation, at which time written notice shall be provided to the other
party requesting termination of this Agreement. In such event, the Entitlements
received by Owner shall be considered withdrawn by Owners and be null and void.
The City shall return the Irrevocable Offer of Dedication to the Owner.
3.5 Community Public Facilities Credit. Once the City has accepted the Offer of
Dedication to the University Property, Owner's obligations to provide Community
Public Facilities land uses within the Reconfigured Property shall he deemed satisfied.
Notwithstanding the foregoing, Owner shall provide (subject to the approval of the
Planning Director) a CPF site of four acres in each village within the Reconfigured
Property except for Village 4. The Planning Director shall reserve the right to waive
the 4 acre requirement at his/her discretion.
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3.6 Discretion of Ci1;y. Owner understands and agrees that the City reserves the right
to exercise its discretion as to all matters which the City is by law entitled or required to
exercise its discretion with respect to the Entitlements, including but not limited to the
California Environmental Quality Act and other similar laws. In addition the
Entitlements shall be subject to and brought to City Council for consideration in
accordance with applicable legal requirements, including laws related to notice, public
hearings and due process. In addition, nothing herein shall be construed as to restrict
the City's ability to exercise its discretion as provided by the City's Growth Management
Program or to condition the Project in the manner City determines appropriate in
accordance with its general police powers.
3.7 (Intentionally omitted.]
3.8 (Intentionally omitted.]
3.9 Universit;r Design. The parties acknowledge and agree that a university will
benefit the citizens of the City and the region and could provide a unique opportunity to
complement the development of the Reconfigured Property. The City acknowledges that
the Owner may participate, by providing input and feedback to the City, in the design of
any future university within Otay Ranch including the design of the University
Property. City agrees to solicit input from Owner, and the public, meet with Owner to
discuss the design of a university, and provide to Owner all non-privileged
documents, studies and materials relevant to the design and development of a
university it is the desire of the parties to work cooperatively, as allowed by law, in the
design of the university to insure compatibility of land uses, design and architecture
with other adjacent properties, including the Project. Notwithstanding the foregoing,
nothing contained herein shall be construed as to restrict the City's ability to exercise
its legislative authority or its discretion as to all matters which the City is by law
entitled or required to exercise its discretion with respect to any future decisions of the
City with respect to any matter pertaining to the University Property or design of a
university.
3.10. Communi1;y Facilities Districts. City shall amend Owner's Development
Agreements to provide that neighborhood parks within Owner's. Reconfigured Property
shall be eligible for inclusion in any community facilities districts ("CFDs") and,
therefore, eligible for reimbursement. In addition, City agrees to amend the Owner's
Development Agreements to provide that the current City policy with regard to CFDs
limiting the total assessment to two percent (2%) of home sales prices shall remain in
effect for Owner's Reconfigured Property.
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ARTICLE 4
Conveyance of Properties
4.1 Conveyance. In the event that City approves the Entidements and has the right to
accept the Offer of Dedication pursuant to Paragraph 3.3 above, City and Owner shall,
simultaneous with City's acceptance of the Offer of Dedication of the University
Property, convey the following properties to each other:
4.1.1 Owner's Exchange Property. Owner shall convey to City an additional
109 acres of land as described in attached Exhibit "H" (the "Owner's
Exchange Property"). .
4.1.2 City's Exchange Property. City shall convey to Owner approximately
109 acres of land as described in Exhibit "H" to this Agreement (the
"City's Exchange Property").
4.1.3 Parcels C, and D. City shall convey to Owner the sixty (60) acres of land
described as Parcels C and D in attached Exhibit "I", and provided
however City first receives any necessary approvals from any appropriate
entities.
4.2. Tide. Encumbrances Hazardous Materials. With regard to the Owner's
Exchange Parcel, the City's Exchange Parcel, and Parcels C and D, City and Owner
shall each be responsible for addressing and resolving all tide matters, encumbrances
and hazardous materials regarding the particular property that they each own in an
identical manner as set forth in Paragraphs 2.5, 2.6, 2.7 and 2.8 above as if said
paragraphs had specifically referenced the City's Exchange Property, the Owner's
Exchange Property and Parcels C, and D.
4.3. Purpose of Conveyances.
4.3.1 City's Exchange Parcel and Owner's Exchange Parcel. As depicted in
attached Exhibit "H", City and Owner intend to exchange ownership of the City's
Exchange Parcel and the Owner's Exchange Parcel in the event that the Offer of
Dedication of the University Property is accepted by City. The exchange is designed to
consolidate the City's ownership such that the university and regional technology park
can be located in one area adjacent to both the University Property and the property
that City intends to acquire from other parries.
4.3.2 Parcels A, B, C, and D. Owner shall have the right, but not the obligation, to
negotiate with the jurisdictions responsible for the Otay Ranch Preserve to determine
whether the development rights on Parcels C and D can be eliminated in exchange for
allowing development on certain other properties, including but not limited to, Parcel A
and Parcel B as described in attached Exhibit "I". Parcel A and Parcel B are cUrtendy
included in the Otay Ranch Preserve and, therefore, cannot currendy be developed. City
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shall provide Owner with irs reasonable best efforts to support Owner in its
negotiations. In the event Owner is successful in trading the development rights on
Parcels C and D for development rights on Parcels A and B, City agrees , if Owner so
elects, to convey City's legal interest in Parcel A and/or Parcel B to Owner provided
OWner concurrently conveys Owner's legal interest in Parcels C and D as preserve land.
Prior to the conveyance of Parcels A and/or B to Owner and Parcels C and D to City,
the parties shall address and resolve all title matters, encumbrances and hazardous
materials regarding the properties in an identical manner as set forth in Paragraphs 2.5,
2.6,2.7 and 2.8. Owner understands and agrees that City is not obligated to convey its
interests to Parcels A and/or B if it finds the title or environmental condition (presence
of Hazardous Materials) of Parcels C and D to be unacceptable for purposes of
conveyance in fee title to the Otay Ranch Preserve or should the appropriate entities not
approve or agree to the exchange of the respective parcels. Parcels A and B will be
processed for development as part of the Entitlements and the Land Use Plan along
with Parcels C and D; provided, however, that Parcels A and B will be included as a part
of the Entitlements only in the event that development on Parcels C and D is
eliminated such that Parcels C and D remain in the Otay Ranch Preserve and Owner has
received all the required approvals for such development. It is specifically understood
and agreed, however, that Owner's obligation to convey the University Property and
Owner's Exchange Property pursuant to this Agreement is in no way contingent on
Owner's ability to negotiate any modifications to the Otay Ranch Preserve to facilitate
development of Parcels A and B as described above. In short, Owner shall be obligated
to convey the University Property and the Owner's Exchange Property pursuant to this
Agreement and shall be entitled to obtain title to Parcels C and D regardless of its
efforts to modify the boundaries of the Otay Ranch Preserve.
ARTICLE 5
GENERAL PROVISIONS
5 1. Infrastructure To Serve Universi1;y Proper1;y. Owner will not be required. to fund,
and the development of the Reconfigured Property shall not be conditioned upon the
funding or construction of public infrastructure required to serve the University
Property including, without limitation, streets, sanitary, sewer, storm drain, water,
park, open space, landscaping and dry utility facilities unless City provides reasonable
assurance of funding or reimbursement in accordance with State Law and/or the
City's ordinances.
5.2. Universi1;y Property Assessments. City agrees not to impose on the
University Property any special taxes, assessments, fees, charges or other exactions
prior to City acceptance of the Irrevocable Offer of Dedication of the University
Property. Owner shall be responsible for paying any taxes, liens and assessments
currently being imposed on the University Property until the City has accepted the
Offer of Dedication.
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5.3. Term. The term of this Ag1'eement and the rights, duties and obligations of the
parties under this Ag1'eement shall expire five (5) years from the Effective Date
unless extended due to Third party Litigation or Force Majeure as herein defined,
except for such provisions herein which expressly survive beyond the expiration of this
five-year term.
5.4. "As Is" Conveyance. City is relying solely upon its own inspection, investigation,
and analysis of the University Property and the Owner's Exchange Property in
entering into this Agreement. The University Property and the Owner's Exchange
Property will be conveyed to City on an "as is" basis. The parties ag1'ee that Owner
makes no representations or warranties regarding the condition of the University
Property or the Owner's Exchange Property, or the fitness of said land for City's
intended use or development thereof.
ARTICLE 6
MISCELLANEOUS PROVISIONS
6.1. Entire Agreement. This Agreement, the Processing Agreement and
Entitlements set forth and contains the entire understanding and agreement of the
parties, and there are no oral or written representations, understandings or ancillary
covenants, undertakings or ag1'eements which are not contained or expressly referred to
as an exhibit herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature
to interpret or determine the terms or conditions of this Ag1'eement.
6.2. Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, then this Ag1'eement shall terminate
in its entirety, unless the parties otherwise ag1'ee in writing.
6.3. Interpretation and Governing Law. This Agreement and any dispute
arising hereunder shall be governed and interpreted in accordance with the laws of the
State of California. This Ag1'eement shall be construed as a whole according to its fair
language and common meaning to achieve the objectives and purposes of the parties
hereto, and the rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in interpreting this Ag1'eement, all
parties having been represented by counsel in the negotiation and preparation hereof.
6.4. Paragraph Headings. All Parag1'aph heading and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this
Ag1'eement.
6.5. Singular and Plural. As used herein, the singular of any word includes the plural.
. 6.6. Time of Essence. Time is of the essence in the performance of the provisions of this
Agreement as to which time is an element.
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6.7. Waiver. Failure of a party to insist upon the strict performance of any of
the provisions of this Agreement by the other party, or the failure by a party to
exercise its rights upon the default of the other party, shall not constitute a waiver of
such party's right to insist and demand strict compliance by the other party with the
terins of this Agreement thereafter.
6.8. No Third Part;y Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit for the parties and their successors and assigns. No other
person shall have any right of action based upon any provisions of this Agreement.
6.9. Force Majeure. Neither party shall be deemed to be in default where failure or delay
in performance of any of its obligations under this Agreement is caused by earthquakes,
other Acts of God, fires, wars, tiots or similar hostilities, strikes and other labor difficulties
beyond the party's control (including the party's employment force), governmental
regulations beyond the City's reasonable control, court actions (such as restraining
orders or injunctions), or other causes beyond the party's reasonable control. If any
such event shall occur or should delays be caused by Owner failing to submit plans or
other documents in a timely manner that causes a delay in the City's processing of
the Entitlements, or requests further changes or amendments to the Project or
Entitlements, the term of this Agreement and the time for performance shall be extended
for the duration of each such event, provided that the term of this Agreement shall not
be extended under any circumstances for more than five (5) years.
6.10. Mutual Covenants. Unless expressly provided otherwise in this Agreement, the
covenants contained herein are mutual covenants and also constitute conditions to the
concurrent or subsequent performance by the party benefited thereby of the covenants
to be performed hereunder by such benefited party.
6.11. Successors In Interest. Unless expressly provided otherwise in this Agreement, 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 Reconfigured Property until released by
the mutual consent of the parties. The burden of the covenants contained in this
Agreement benefit and burdens the Reconfigured Property, its successors and assigns
and any successor in interest thereto as well as benefit the City. City is deemed the
beneficiary of such covenants for and in its own right and for the purposes of
protecting the interest of the community and other parties public or private, in whose
favor and for whose benefit of such covenants running with the land have been
provided without regard to whether City has been, remained or are owners of any
particular land or interest therein.
6.12. Counterparts. The parties may execute this Agreement in counterparts, which
counterparts shall be construed together and have the same affect as if all the parties
had executed the same instrument.
6.13 Jurisdiction and Venue. Any action or law or inequity ansfig under this
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Agreement or brought by an party hereto for the purpose of enforcing, construing or
detennining the validity of any provision of this Agreement shall be filed and tried in the
Superior Court of the County of San Diego, State of California, and the parties hereto
waive all provisions of law providing for the filing, removal or change of venue to any
other court.
6.14. Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the
conditions of this Agreement. Upon the request of either party at any time, the other
party shall prompdy execute, with acknowledgment or affidavit if reasonably requited,
and file or record such requited instruments and writings reasonably acceptable to such
party and take any actions as may be reasonably necessary under the terms of this
Agreement to carry out the intent and to fulfill the provisions of this Agreement,
including without limitation actions necessary to remove this Agreement from the chain
of tide as to all or a portion of the Reconfigured Property when authorized by this
Agreement, provided that neither party will be obligated to modify any rights or
accept any additional obligations or liabilities in connection therewith. Following
City's acceptance of the Irrevocable Offer of Dedication for the University Property,
upon the request of Owner, City will take actions reasonably necessary to remove this
Agreement from the chain of tide of that portion of the Reconfigured Property being
conveyed to a third party.
6.15. Amendments in Writing/Cooperation. This Agreement may be amended only
by written consent of both parties specifically approving the amendment.
6.16. Notices. Any notice called for in this Agreement shall be sent by hand delivery,
overnight courier service, or by registered or certified mail as follows:
To City at:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Attn: Ann Moore, City Attorney
With a copy to
JPB Development
Company, LLC
610 West Ash St, Suite
1500
San Diego, CA 92101
Attn: Rob Cameron
JPB Development, LLC
270 Newport Center Drive, Suite 200
Newport Beach, CA 92660
Attn: Ron Therrien
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or such other address as a party may inform the others of from time to time. Any
such notices sent by registered or certified mail, return receipt requested, shall be
deemed to have been duly given and received three (3) business days after the same
is so addressed and mailed with postage prepaid. Notices delivered by overnight
service shall be deemed to have been given upon delivery, charges prepaid to the
U.S, Postal Service or private courier. Any notice or other document sent by any other
matter shall be effective only upon actual receipt thereof.
6.17 Authority to Execute. Owner and the City each warrants and represents
tha t the person or persons executing this Agreement and Irrevocable Offers of
Dedication on their behalf have the authority to execute this Agreement and
Irrevocable Offers of Dedication.
6.18 Exhibits and Attachments. All Exhibits referenced within the Agreement are
incorporated herein and made a part of this Agreement.
6.19 Termination. In the event this Agreement terminates as provided in
Paragraphs 2.6, 2,7, 2.8, 3.2, 3.3, 3.4, and 3.9 herein, the Entidements shall be
withdrawn, the Offers of Dedication shall be null and void, and of no further force
and effect (the parties shall prompdy take all actions reasonably necessary to prompdy
remove the document from the chain of tide) and the Processing Agreement also shall
terminate, Owner agrees to prompdy pay any outstanding processing fees due the City
in accordance with the Processing Agreement.
6.20 Project as A Private Undertaking. It is specifically understood by City and
Owner that ~) the Project is a private development; (ii) City has no interest and! or
responsibilities for or duty to the Owner or third parties concerning any improvements
to the Reconfigured Property; (ill) Owners shall have the full power and exclusive
control of the Reconfigured Property subject to the obligations of Owner set forth in
this Agreement, any other agreements with City and applicable law; and (iv) the Project
is not a joint venture or partnership between the City and Owner.
6.21 No Attorney fees. No attorney's fees shall be recoverable in connection
with this Agreement.
(NEXT PAGE IS SIGNATURE PAGE)
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SIGNATURE PAGE TO
LAND OFFER AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and yeal: first set forth above.
CITY OF CHULA VISTA, a political subdivision of the State of California
By:
Donna N orris, Interim City Clerk
APPROVED AS TO FORM
Ann Y. Moore, City Attorney
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MAY-16-2008 15:01 From:
To: 6194095823
P.l/l
Ha~ 16 08 04.04p
C.V.Cit~ Att~ - Lit. Dlv. 1618J476-5305
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a ,Delaware limited Liabilily Comj)llll)l.
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a Delaware limited partne:ship,
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By:
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[t's Vice P....ident
JJJ&K INVESTMENTS TWO, LLC.
. Colaw.... limited Liability CompallY
By, ./JJ&:K INVESTMENTS ONE, LLC.
A Delaware limited Liability CeInpon.y
It's Man<tsiug M1!tDber
By: JJJ&K INVI!STMENTS. U'.
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It's Managing Member
By: JJJ&:K Man._...~ Inc.,
^ Delawareo~' .
It's General P Ct (")
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It's Vicc Pre.~idt.nt
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A DeI.w","" limited l.lobility Company
Robert B. Cameron
It's Vie. Presidel11
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Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
LIST OF EXHIBITS
Legal Description of Existing Ownership
Legal Description of University Property (160 acres)
Legal Description of Reconfigured Property
Amendments to Devdopment Agreement
Land Use Plan
Irrevocable Offer of Dedication
Purchase Agreement
Owner's Exchange Property and City's Exchange Property
Parcds A, B, C, and D
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EXHIBIT A
OTAY RANCH VILLAGES 3. 4 AND 8
PARCEL I:
LOT 43 OF OTAY RANCH, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1900.
EXCEPTING THEREFROM THAT PORTION OF SAID LOT 43 LYING WITHIN THE
FOLLOWING DESCRIBED LAND:
COMMENCING AT THE SOUTHWEST CORNER OF FRACTIONAL SECTION 17,
TOWNSHIP 18 SOUTH, RANGE 1 WEST, SAN BERNARDINO MERIDIAN, IN SAID SAN
DIEGO COUNTY, ACCORDING TO LICENSED SURVEYOR'S MAP THEREOF NO. 275, A
PLAT OF WHICH IS FILED IN THE OFFICE OF THE COUNTY RECORDER NOVEMBER
5,1936; THENCE ALONG THE SOUTHERLY LINE OF SAID FRACTIONAL SECTION 17,
SOUTH 88055'00" EAST, A DISTANCE OF 2,071.03 FEET (2,074.27 PER SAID LICENSED
SURVEYOR'S MAP NO. 275) TO A POINT ON THE WESTERLY BOUNDARY OF SAID
OTAY RANCH, SAID POINT BEING ALSO THE TRUE POINT OF BEGINNING; THENCE
LEAVING SAID SOUTHERLY LINE, NORTH 19000'00" WEST, ALONG SAID WESTERLY
BOUNDARY, A DISTANCE OF 2,893.65 FEET (2,893.04 FEET PER SAID LICENSED
SURVEYOR'S MAP NO. 275) TO THE MOST NORTHERLY NORTHEAST CORNER OF
THAT LAND DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED
APRIL 16, 1962 AS DOCUMENT NO. 64315, IN THE OFFICE OF SAID COUNTY
RECORDER; THENCE CONTINUING ALONG SAID WESTERLY BOUNDARY NORTH
19000'00" WEST, A DISTANCE OF 741.41 FEET; THENCE LEAVING SAID WESTERLY
BOUNDARY, NORTH 74023'37" EAST, A DISTANCE OF 3,829.24 FEET; THENCE SOUTH
02044'38" EAST, A DISTANCE OF 2,922.46 FEET; THENCE SOUTH 59039'21" WEST, A
DISTANCE OF 3,064.30 FEET TO THE TRUE POINT OF BEGINNING.
ALSO EXCEPTING THEREFROM THAT PORTION OF SAID LOT 43 DESCRIBED AS
FOLLOWS,
COMMENCING AT THE EAST QUARTER CORNER OF FRACTIONAL SECTION 20,
TOWNSHIP 18 SOUTH, RANGE 1 WEST, SAN BERNARDINO MERIDIAN, AS SHOWN
ON OTAY INDUSTRIAL PARK, MAP NO. 8147, FILED IN THE OFFICE OF THE COUNTY
RECORDER; THENCE ALONG THE EASTERLY LINE OF SAID FRACTIONAL SECTION
20, BEING ALSO THE WESTERLY BOUNDARY LINE OF SAID OTAY RANCH, NORTH
18037'06" WEST 650.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING
SAID RANCH BOUNDARY NORTH 71022'54" EAST 55.00 FEET; THENCE LEAVING
SAID RANCH BOUNDARY NORTH 71022'54" EAST 55.00 FEET; THENCE NORTH
18037'06" WEST, PARALLEL WITH SAID RANCH BOUNDARY LINE 200.00 FEET;
THENCE SOUTH 71022'54" WEST 55.00 FEET TO SAID RANCH BOUNDARY LINE;
THENCE ALONG SAID LINE SOUTH 18037'06" EAST 200.00 FEET TO SAID POINT OF
BEGINNING.
8-29
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ALSO EXCEPTING THEREFROM THAT PORTION OF SAID LOT 43 DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY RANCH OTAY BOUNDARY DISTANT
SOUTH 18037'10" EAST 499.12 FEET ALONG SAID OTAY RANCH BOUNDARY FROM
THE SOUTHEAST CORNER OF LOT 17 OF MAP NO. 8147; THENCE LEAVING SAID
OTAY RANCH BOUNDARY EASTERLY ALONG A NON-TANGENT CURVE, CONCAVE
SOUTHERLY AND HAVING A RADIUS OF 157.00 FEET, A RADIAL TO SAID POINT
BEARS NORTH 34056'19" WEST; THENCE ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 49041 '39" AN ARC LENGTH OF 136.17 FEET; THENCE TANGENT
TO SAID CURVE SOUTH 75014'40" EAST 179.58 FEET; THENCE SOUTH 14045'20"
WEST 62.00 FEET; THENCE NORTH 750)4'40" WEST 45.61 FEET TO THE BEGINNING
OF A TANGENT 95.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE
WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF
107028'43" A LENGTH OF 178.21 FEET TO A POINT ON THE NORTHERLY LINE OF
SAID LOT 44 OF OTAY RANCH; THENCE DEPARTING THE ARC OF SAID CURVE
NON-RADIALLY SOUTH 71058'08" WEST 9.63 FEET ALONG THE NORTHERLY LINE
OF SAID LOT 44 TO THE EASTERLY LINE OF THAT EASEMENT FOR COUNTY
HIGHWAY RECORDED APRIL 9, 1979 AS DOCUMENT NO. 79-144675; THENCE NORTH
18037'10" WEST 78.39 FEET ALONG THE EASTERLY LINE OF SAID EASEMENT FOR
COUNTY HIGHWAY; THENCE SOUTH 71022'50" WEST 55.00 FEET ALONG THE
NORTHERLY LINE OF SAID EASEMENT FOR COUNTY HIGHWAY TO A POINT OF
INTERSECTION WITH SAID RANCH BOUNDARY; THENCE ALONG SAID RANCH
BOUNDARY NORTH 18037' 10" WEST 119.86 FEET TO THE POINT OF BEGINNING.
PARCEL I:
PARCEL 3 OF PARCEL MAP NO. 19923, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, JANUARY 18,2006.
PARCEL H:
PARCEL 4 OF PARCEL MAP NO. 20264, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, JUNE 1,2007.
PARCEL H:
PARCELS 1 AND 3 OF PARCEL MAP NO. 20264, IN THE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, JUNE 1,2007.
PARCEL H:
PARCEL 2 OF PARCEL MAP NO. 20264, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, JUNE 1,2007.
25
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PARCEL G:
LOTS 25 AND 26 IN OTAY RANCHO, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,
1900.
EXCEPTING THEREFROM THAT PORTION OF SAID LOT 25 CONVEYED TO THE
STATE OF CALIFORNIA BY DEED RECORDED JUNE 21, 2006 AS DOCUMENT NO.
2006-0437364.
PARCEL G:
LOTS 23 AND 24 OF OTAY RANCHO,IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,
1900.
EXCEPTING THEREFROM THAT PORTION OF SAID LOT 24 CONVEYED BY SAN
DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA MOUNTAIN WATER
COMPANY, BY DEED DATED APRIL 11, 1912 RECORDED JUNE 24, 1912 IN BOOK 570,
PAGE 113 OF DEEDS, RECORDS OF SAN DIEGO COUNTY; THE PARCELS OF LAND SO
CONVEYED TO SAID WATER COMPANY BEING THE SOUTH 492.5 FEET OF THE
EAST 506 FEET OF LOT 4 OF SAID OTAY RANCHO AND STRIPS OF LAND VARYING
IN WIDTH FROM 100 FEET TO 50 FEET FOLLOWING THE LINE OF THE RIGHT OF
WAY OF THE OTAY-SAN DIEGO PIPE LINE AND THE LINE OF THE RIGHT OF WAY
OF THE OTAY-CORONADO PIPE LINE, AS DESCRIBED IN SAID DEED AND SHOWN
ON THE MAPS WHICH ARE ATTACHED TO AND MADE A PART OF SAID
INSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID
INSTRUMENT FOR A MORE PARTICULAR DESCRIPTION OF SAID PARCELS.
ALSO EXCEPTING THEREFROM THAT PORTION OF SAID LOT 23 LYING WITHIN
CHULA VISTA TRACT NO. 05-07 MC MILLIN OTAY RANCH VILLAGE 7 "A" MAP,
ACCORDING TO MAP THEREOF NO. 15014, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, MAY 6, 2005.
FURTHER EXCEPTING THEREFROM THAT PORTION OF SAID LOTS 23 AND 24
CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED JUNE 21, 2006 AS
DOCUMENT NO. 2006-0437364.
PARCEL H:
THAT PORTION OF LOTS 34, 35, 36 AND 37 OF OTAY RANCHO, IN THE CITY OF
CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THEREOF NO. 862, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY, FEBRUARY 7, 1900 MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
8-31
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BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 34 WHICH LIES
1,350.00 FEET NORTHERLY ALONG SAID WESTERLY LINE FROM THE SOUTHWEST
CORNER OF SAID LOT 34; THENCE NORTHEASTERLY 1,000.00 FEET PARALLEL
WITH THE SOUTHERLY LINE OF SAID LOT 34; THENCE SOUTHEASTERLY 1,350.00
FEET MORE OR LESS PARALLEL TO SAID WESTERLY LINE TO A POINT ON SAID
SOUTHERLY LINE; THENCE SOUTHWESTERLY TO A POINT IN THE WESTERLY LINE
OF SAID LOT 35 THAT LIES 900.00 FEET SOUTHERLY ALONG SAID WESTERLY LINE
FROM THE NORTHWEST CORNER OF SAID LOT 35 AS MEASURED ALONG SAID
WESTERLY LINE; THENCE WESTERLY TO A POINT IN THE WESTERLY LINE OF
SAID LOT 37 THAT LIES 500.00 FEET NORTHERLY OF THE SOUTHWEST CORNER OF
SAID LOT 37 AS MEASURED ALONG SAID WESTERLY LINE; THENCE NORTHERLY
TO A POINT WHICH LIES 1,400.00 FEET EASTERLY OF, MEASURED AT RIGHT
ANGLES TO, THE WESTERLY LINE OF SAID LOT 37 AND 800.00 FEET SOUTHERLY
OF, MEASURED AT RIGHT ANGLES TO, THE NORTHERLY LINE OF SAID LOT 37;
THENCE EASTERLY TO THE POINT OF BEGINNING.
OTAY RANCH VILLAGES 9 AND 10
PORTIONS OF PARCELS E AND F:
LOTS 13 AND 14 OF OTA Y RANCHO, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,
1900.
EXCEPTING THEREFROM THAT PORTION OF LOT 14 OF OTAY RANCHO,
CONVEYED BY SAN DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA
MOUNTAIN WATER COMPANY, BY DEED DATED APRIL 11, 1912 AND RECORDED
JUNE 24, 1912 IN BOOK 570, PAGE 113 OF DEEDS.
PORTIONS OF PARCELS E AND F:
LOT 15 OF OT A Y RANCHO, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,1900.
27
8-32
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EXHIBIT D
WILL BE DELIVERED
UNDER
SEPARATE COVER
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EXHIBIT D
DEVELOPMENT AGREEMENT PROVISIONS
1. Tenn. The following language shall be added after the phrase "twenty (20) years" and before
the phrase "(the tenn)" in the fourth sentence of Section 3 of the existing Development Agreement:
"from , 20~ the date upon which the City may accept the
Offers of Dedication in Sections 3.3 of that certain "Land Offer Agreement" by and
between the City and OV Three Two, LLC; ]]] & K Investments Two, LLC; and
RR Quarry, LLC, approved by the City Council on ,2008."
2. Tentative Map/Permit Duration. Section 6.2 of the existing Development Agreement,
entitled "Length of Validity of Tentative Subdivision Maps," is hereby deleted in its entirety and
replaced with the following:
"6.2 Tentative Man/Permit Duration. Pursuant to California Government Code
section 66452.6, any tentative subdivision map, parcel map or other map authorized
by the State Subdivision Map Act that is approved for the Project shall remain valid
for a period of time equal to a tenn of this Agreement. In addition, notwithstanding
any condition or provision to the contrary, every permit and approval for the Project
other than ministerial approvals shall remain valid for a period of time equal to the
term of this Agreement. II
3. Growth. The second full paragraph of Section 5.2 appeating at page 8 of the
existing Development Agreement, entitled "Development of Property," which begins
"Notwithstanding the foregoing," shall be deleted in its entirety and replaced with the following:
"Notwithstanding any provision of this Agreement to the contrary, the City's Growth
Management program, as set forth in the Growth Management Element of the City's
General Plan, applicable to the Project shall be those in effect on the date the City
approves the Land Offer Agreement referenced in Section 3 hereof."
4. Modifications to Existing Project APprovals. The following sentence shall be added
to the end of Section 5.2.3 of the existing Development Agreement:
"The parties agree that they accept the modifications to the Existing Project
Approvals approved by the City Council on ________________ ,20 ."
5. Reimbursement. At the end of the ftrst sentence of Section 7.5 of the existing
Development Agreement, entitled "Facilities Which are the Obligations of Another Party, or
are of Excessive Size, Capacity, Length or Number,J! a new sentence shall be inserted as
follows:
101071974.2
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"City shall not require such monies or improvements unless City provides
reasonable assurance of funding or reimbursement in accordance with State law
and/or the City's ordinances."
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@ COMMUNITY USE
CD TRANSIT STOP
AREA
1
2
3
TOTALS
EXHIBIT "E' LAND USE PLAN
VILLAGE 3
PARCELl
AREA 3
AREA 2
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V1UAGE 3
lAND USE! DISTRICT GROSS ACRES
MH 20
LM 121
IND 74
215
DU GROSS DU/ACRE
360 18
484 4
844
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EXHIBIT "E' LAND USE PLAN
VILLAGE 4
PARCEL H
V
AREA 2
AREA 1
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AREA
1
2
VILLAGE 4
LAND USE/DISTRICT NET ACRES DU
MH 31 620
LM 26 130
GROSS DU/ACRE
20
5
TOTALS
57
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EXHIBIT 'E" LAND USE PLAN
VILLAGE 8
PARCEL G
AREA 2
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AREA 1
Cl)@
!l) PARK
@) SCHOOL
@ COMMUNITY USE
CD TRANSIT STOP
AREA 3
[ AREA 4
AREA 5
AREA 6
VIllAGE 8
AREA
1
2
3
4
5
8
TOTALS
LAND USE! DISTRICT
MH
MH
MH
LM
LM
ACTIVE REC/COMM PARK
GROSS ACRES
45
75
25
22
51
41
259
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lOBO 24
1320 18
450 18
188 8
(1)
303B
(1) THIS AREA IS SUBJECT TO MSCP BOUNDARY ADJUSTMENT. IF OWNER IS SUCCESSFUL
IN MODIFYING THE BOUNDARY, 307 UNITS WILL BE TRANSFERRED FROM AREA 1 AND/OR AREA 2 TO AREA 5.
8-40
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V1UAGE 9/10
AREA LAND USE/ DISTRICT GROSS ACRES
1 MH 70
2 LM 40
3 LM 50
4 LM 10
5 UNIV 295
TOTALS 465 2650
(1) UP TO 360 UNITS FROM AREA 2 WILL BE TRANSFERED TO PARCELS A,B,C AND/OR D
(SEE EXHIBIT I) PURSUANT TO PARAGRAGH 4.3.2 OF THE AGREEMENT
DU GROSS DU/ACRE
2050 29
600 15
(1)
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8-41
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EXHIBIT F
Recording Requested by
and Please Return to:
City Clerk
City of Chula Vista
P.O. Box 1087
Chub Vista, California 91912
This Instrument Benefits City OnlY
No Fee Required
This Space for Recorder's Use OnlY
APN(s)
C.V. File No.
IRREVOCABLE OFFER
OF DEDICATION OF FEE INTEREST
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, OV THREE
TWO, LLC; JJJ&K INVESTMENTS TWO, LLC; RR QUARRY, LLC represent that, as the owner of
the herein-described real property, hereby makes an Irrevocable Offer of Dedication of fee interest to
THE CITY OP CHULA VISTA, A MUNICIP AL CORPORATION ("City"), the hereinafter described
real property for the following public purpose:
FOR HIGHER EDUCATION AND RELATED COMPATIBLE
USES, ACTIVE PUBLIC RECREATION, QUASI PUBLIC AND
ALL OTHER USES INCLUDING RESIDENTIAL USES,
INDUSTRIAL AND COMMERCIAL.
The property referred to above is situated in the City of Chula Vista, County of San Diego, State of
California and is more particularly described on Exhibit "A" attached hereto and incorporated herein by
this reference the ("Property").
This Offer of Dedication is made pursuant to Section 7050 of the Government Code of the State of
California and the terrns and conditions of that certain Land Offer Agreement by and between Owner
and City dated April 7, 2008, which Land Offer Agreement is incorporated herein by reference.
This Offer of Dedication may be accepted by the City Clerk of the City of Chula Vista only in
accordance with the Land Offer Agreement.
This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Owner, its heirs,
executors, administrators, successors and assigns.
- 1 -
8-42
L
EXHIBIT F
Pursuant to Article 2 of the Land Offer Agreement, following the City's acceptance of this Offer of
Dedication, Owner shall retain certain rights to repurchase all or a portion of the Property ("Repurchase
Rights") for the term specified in Section 2.1 of the Land Offer Agreement. It is the intention of the
parties that the Repurchase Rights shall be covenants running with the land pursuant to applicable law,
including, but not limited to Section 1468 of the Civil Code of the State of California. The City and
Owner agree that each of the limitations, covenants, conditions, and restrictions contained herein, and
as incorporated by reference from the Land Offer Agreement (i) is for the benefit of certain real
property described on Exhibit "B" attached hereto and incorporated herein (the "Benefited Property")
and is a burden upon the Property, (ii) attaches to and runs with the Property and the Benefited
Ptoperty, (iii) benefits each successor owner during its ownership of the Benefited Property or any
portion thereof, and (iv) is binding upon each successor owner during its ownership of the Property or
any portion thereof, and each owner having any interest therein derived in any manner through any
owner of the Property or any portion thereof, whether by operation of law or any manner whatsoever.
Notwithstanding the foregoing, Owner may elect from time to time, in accordance with the terms of the
Land Offer Agreement, by a duly recorded document to remove any portion of the Benefited Property
from the benefit of the covenants set forth herein.
[SIGNATURES ON FOLLOWING PAGE]
- 2-
8-43
EXHIBIT F
SIGNATURE PAGE TO
IRREVOCABLE OFFER
OF DEDICATION OF FEE INTEREST
IN WITNESS WHEREOF, the parties hereto have executed this Irrevocable Offer of
Dedication of Fee Interest on the day and year first set forth above.
CITY OF CHULA VISTA, a political
subdivision of the State of California
OTAY LAND COMPANY, LLC,
a Delaware limited liability company
By:
Its:
By:
Curt Noland, Vice President
Donna Norris, Interim City Clerk
APPROVED AS TO FORM
EXECUTED BY
Ann Y. Moore, City Attorney
Cheryl Cox, Mayor
101086936.1
8-]4-4
11_
EXHIBIT F
This is the IOD with
Corrected Signature Pages
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EXHIBIT F
Recording Requested by
and Please Return to:
City Clerk
City of Chula Vista
P.O. Box 1087
Chub Vista, California 91912
This Instrument Benefits City Only
No Fee Required
This Space for Recorder's Use Only
APN(s)
C.V. File No.
IRREVOCABLE OFFER
OF DEDICATION OF FEE INTEREST
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, OV THREE
TWO, LLC; JJJ&K INVESTMENTS TWO, LLC; RR QUARRY, LLC represent that, as the owner of
the herein-described real property, hereby makes an Irrevocable Offer of Dedication of fee interest to
THE CITY OP CHULA VISTA, A MUNICIPAL CORPORATION ("City"), the hereinafter described
real property for the following public purpose:
FOR HIGHER EDUCATION AND RELATED COMPATIBLE
USES, ACTIVE PUBLIC RECREATION, QUASI PUBLIC AND
ALL OTHER USES INCLUDING RESIDENTIAL USES,
INDUSTRIAL AND COMMERCIAL.
The property referred to above is situated in the City of Chula Vista, County of San Diego, State of
California and is more particularly described on Exhibit "A" attached hereto and incorporated herein by
this reference the ("Property").
This Offer of Dedication is made pursuant to Section 7050 of the Government Code of the State of
California and the terms and conditions of that certain Land Offer Agreement by and between Owner
and City dated April 7, 2008, which Land Offer Agreement is incorporated herein by reference.
This Offer of Dedication may be accepted by the City Clerk of the City of Chula Vista only in
accordance with the Land Offer Agreement.
This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Owner, its heirs,
executors, administrators, successors and assigns.
,'-,
....,
L-r I
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- 1 - '(
~'-""'-----"-' .--." -'-'---'--'-~ ---,_._._-"..-_._-_._-_._------_._._.~~--_.._-
EXHIBIT F
Pmsuant to Article 2 of the Land Offer Agreement, following the City's acceptance of this Offer of
Dedication, Owner shall retain certain rights to repmchase all or a portion of the Property ("Repmchase
Rights") for the term specified in Section 2.1 of the Land Offer Agreement. It is the intention of the
parties that the Repmchase Rights shall be covenants running with the land pmsuant to applicable law,
including, but not lirnited to Section 1468 of the Civil Code of the State of California. The City and
Owner agree that each of the lirnitations, covenants, conditions, and restrictions contained herein, and
as incorporated by reference from the Land Offer Agreement (i) is for the benefit of certain real
property described on Exhibit "B" attached hereto and incorporated herein (the "Benefited Property")
and is a bmden upon the Property, (ii) attaches to and runs with the Property and the Benefited
Property, (ill) benefits each successor owner dming its ownership of the Benefited Property or any
portion thereof, and (iv) is binding upon each successor owner dming its ownership of the Property or
any portion thereof, and each owner having any interest therein derived in any manner through any
owner of the Property or any portion thereof, whether by operation of law or any manner whatsoever.
Notwithstanding the foregoing, Owner may elect from time to time, in accordance with the terms of the
Land Offer Agreement, by a duly recorded document to remove any portion of the Benefited Property
from the benefit of the covenants set forth herein.
[SIGNATURES ON FOLLOWING PAGE]
- 2-
EXHIBIT F
This is to certify that the interest in real property offered herein to the City of Chula Vista, a
governmental agency, is hereby acknowledged by the undersigned, City Clerk" on behalf of the Chula
Vista City Council pursuant to authority conferred by Resolution No. of the Chula Vista City
Council adopted on , 2008, and the grantees consent to the recordation thereof by its
duly authorized officer.
DONNA NORRIS
INTElUYI CITY CLERl<::
By:
Date:
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OV THRE\i; TWO, LlC
" LJelawar. Jimlled Liability Company,
By: OV TRUE ONE, LLC,
a Dd.aware iimitod Liability Company,
It', Managmg Member
By' Otoy Village Tbre. IavO$lmeot<, LP,
. Delaw"," limit"d p;a1nership,
It's Managing Momb.r
By:
obert B. ",meron
It's Vice President
JJJ&K lI'iVESTMENTS TWO, LLC.
a Delaw..., Iimi1ed l.iabiiily Con'Pany
By:
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^ oelaware limited Liability CompBJJy
It~s ManrlSII1: M<m1bet
Hy: ,/./J&K INVW..5TMENT5, (J>.
A De!awarr, !llnj~d partni;1J'5hj~
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A DC!l1wa.r~ co tiOlJj
It's G'neral r ocr M-__
b<rt B. GJrn,ron
It's Vice Pre.~ ide.nt
RR Quarry, LLC,
A. Dd4warc limilcd LI'DhiHty Corupan)l
RobertB, Cameron
It's Vi>;:~ Presidem
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EXHIBIT G
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
TO:
THIS AGREEMENT OF
and entered into
between
"SELLER"), and
"Buyer") .
PURCHASE AND SALE AND ESCROW
this day of
INSTRUCTIONS is mad",
by and
(hereinafter
(hereinafter
RECITALS
SELLER is the owner of certain real property located in the County
of San Diego, State of California, containing approximately 45
acres, as legally described on Exhibit "1" attached hereto
("Property") .
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and promises
contained herein, the parties agree as follows:
1. PURCHASE OF PROPERTY
SELLER agrees to sell the Property to Buyer and Buyer agrees
to purchase the Property, upon the terms and conditions herein
contained.
2. PURCHASE PRICE
The purchase price for the Property to be paid by Buyer SHALL
BE Dollars
($ ) .
3. TERMS OF PAYMENT OF PURCHASE PRICE
The purchase price shall be paid as follows:
4. CONDITIONS PRECEDENT TO CLOSING
8-45
L
EXHIBIT G
5 . ESCROW
This Agreement constitutes joint escrow instructions to
("Escrow Holder") instructing it to consummate this sale upon
the terms and conditions set forth herein. Escrow Holder
shall be concerned with the provisions of this paragraph and
the paragraphs and subparagraphs below.
(a) Opening. Escrow shall open within three (3) days after
execution of this Agreement by the parties.
(b) Deposit. Upon opening escrow, Buyer shall deposit:
(c) Effective Date. The effective date for all time
requirements under this Agreement shall be the opening of
escrow.
(d) Closing Date. This escrow shall close on or before
(e) Prorations. All ordinary real property taxes levied or
assessed against the Property shall be prorated between
Buyer and SELLER on the basis of the latest bills and
thirty (30) day month (360 day year) as of the close of
escrow.
(f) Payment of Costs. The expenses of escrow described
herein shall be paid in the following manner:
1. Seller shall pay the full cost of preparing,
executing and acknowledging any deeds or other
instruments required to convey title to the Property
to Buyer, any tax that may be imposed on the
conveyance of title to the Property to Buyer under
the Documentary Transfer Tax Act of California, and
one-half of the escrow fees.
2. Buyer shall pay the cost of recording the
Grant Deed or other instrument executed by
SELLER conveying title to the Property to Buyer
and one-half of the escrow fees.
(g) Possession. Possession of the Property shall be
delivered to Buyer on close of escrow.
2
8-46
L
EXHIBIT G
6. NOTICES
All notes under this Agreement shall be effective upon
personal deliver to SELLER, Buyer, or Escrow Holder, as the
case may be, or forth-eight (48) hours after deposit in the
Uni ted States mail, registered or certified mail, postage
fully prepaid, and addressed to the respective parties as
follows:
To SELLER:
To BUYER:
To Escrow Holder:
or to such other address as the parties may from time to time
designate in writing.
7. ACCESS
Buyer shall be entitled to reasonable access to the Property
at any time prior to the close of escrow for the purpose of
making such engineering, surveying, soils, geology and
environmental studies as Buyer may reasonably deem necessary,
all of which will be completed at no expense to SELLER. Buyer
agrees to indemnify and hold SELLER and the Property free and
harmless from any and all liens, costs, liabilities or
expenses incurred in connection with such engineering,
surveying, soils, geology and environmental studies.
8. ATTORNEYS' FEES
In any action between Buyer and SELLER seeking enforcement or
interpretation of any of the terms or provisions of this
Agreement, or in connection with any of the Property described
herein, the prevailing party in such action shall be awarded, in
addition to damages, injunctive or other relief, its
reasonable cost and expenses, not limited to taxable costs,
and reasonable attorneys' fees.
8-47
EXHIBIT G
9. ASSIGNMENT
Buyer shall have the right to assign tHis Agreement and the
rights and responsibilities under it ~ith the consent of
SELLER, which consent shall not be unrea40nably withheld.
10. TIME OF ESSENCE
Time is of the essence in this Agreement.
11. PERFORMANCE OF ACTS
The parties hereto agree to perform
documents as may be required to
purposes of this Agreement.
such acts and execute such
carry out the terms and
12. PROPERTY "AS IS"
Buyer is relying solely upon its own inspections,
investigations and analyses of the Property in entering
into this Agreement and is not relying in any way upon
any representations, statements, agreements, warranties,
studies, reports, descriptions, guidelines or other
information or material furnished by Seller or its
representatives, whether oral or written, express or implies
of any nature whatsoever regarding any such matters. Buyer
acknowledges that it has become familiar with the
Property and made such independent investigations
and analysis as Buyer deems necessary or appropriate
concerning Buyer's proposed use, sale and development of the
Property.
13. MISCELLANEOUS
This Agreement shall be construed in accordance with the laws
of the State of California. This Agreement may be executed in
counterparts. This Agreement shall be binding upon and shall
inure to the benefit of all the parties hereto, their
beneficiaries, successors and assigns.
Headings at the beginning of each numbered section of the
Agreement are solely for the convenience of the parties and
are not a part of this Agreement. This Agreement contains all
of the agreements of the parties hereto with respect to the
matters contained herein and no prior agreement or
understanding pertaining to any such matter shall be effective
for any purpose. No provision of this Agreement may be
amended or added to except by an agreement in writing signed
by the parties hereto or their respective successors in
interest.
(NEXT PAGE IS SIGNATURE PAGE)
4
8-48
L
EXHIBIT G
SIGNATURE PAGE TO
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
IN WITNESS WHEREOF, Buyer and SELLER have executed this Agreement
the day and year first above written.
"BUYER"
By
"SELLER"
By
Receipt of executed copy of this Agreement is hereby acknowledged
this day of
By
8-49
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II \\
III '\
III
III
I 1\
III
III
III
III
III
\ \
~..~
~ CITY'S EXCHANGE PROPERTY
\
\
8-50
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EXHIBIT "H'
OWNER'S EXCHANGE PROPERTY
\Y:
\
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II \
III
III
III
II I
III
II \
III
II \
III
\ \
_ OWNER'S EXCHANGE PROPERTY
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8-51
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8-52
VILLAGE 9/10
PARCEL LAND USE! DISTRICT GROSS ACRES
A MH 35
B LM 25
C LM 10
D LM 50
TOTALS 120
. PARCELS A AND B WILL BE INCLUDED IN THE ENTITLEMENTS ONLY IF PARCELS C AND D
ARE DEDICATED BY OWNER TO PRESERVE PURSUANT TO PARAGRAPH 4.3.2
c
8-53
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L
CITY COUNCIL
AGENDA STATEMENT
"'"-$,..,.;;; ,.
~lff:.. CITY OF
p:'~
- - - -- (HULA ViSTA
May 20, 2008
Item 9
ITEM TITLE:
AN ORDINANCE OF THE CITY OF CHULA VISTA
AM:ENDING TITLE 9 OF THE CHULA VISTA MUNICIPAL
CODE BY ADDING CHAPTER 9.23, SECTIONS 9.23.010
THROUGH 9.23.060 TO PROHIBIT THE SALE AND/OR
D[STRIBUTION OF NOVELTY LIGHTERS
FIRE CHIEV~ ''IN
CITY MA~GER tllJ\~ \
I
4/5THS VOTE: YES NO X
SUBMITTED BY:
REVIEWED BY:
SUMMARY
We must continue to address our nation's fire problem. A ban on the sale of novelty
lighters will produce an immediate measurable effect in the reduction of property loss
caused by fires, and deaths and injuries--especially to children. A "Nation-wide Call to
Action" began years ago and must carryon today. In 2006, the National Fire Protection
Association (NFP A) published that 1,642,500 fires were reported in the United States-up
3% from 2005; that equated to 3,245 civilian fire deaths, 16,400 civilian fire injuries,
$11.3 billion in property damage, and 89 firefighter deaths. These catastrophic numbers
must be acknowledged and discussed in a public forum.
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) (5) 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 Council adopt the Ordinance amending the Municipal Code by adding provisions
prohibiting the sale and/or distribution of novelty lighters within the City.
9-1
May 20. 2008, Item~
Page 2 of4
BOARDS/COMMISSIONS RECOMi\1ENDA nON
Not Applicable.
DISCUSSION
The Nationwide Call to Action, which began two years ago by the Oregon State Fire
Marshal's office, is gaining momentum as municipalities in a growing number of states
are banning or considering banning the sale of the novelty lighters. Locally, San Diego,
El Cajon, National City, Solana Beach and Vista all currently have ordinances banning
the toy like novelty lighters. Several other local cities are currently considering moving
forward with the adoption of such an ordinance.
The Consumer Product Safety Commission (CPSC) defines novelty lighters as the
following, "lighters that depict or resemble articles commonly recognized as appealing to
or intended for use by children under five years of age." The CPSC has recalled
thousands of novelty lighters since 1996 due to their danger to public safety. In 2006, the
San Diego Bum Institute reported the following facts:
. Nationally, children who play with fire cause nearly 80,000 structure fires
per year, which result in approximately 760 deaths and more than 3,500
injuries.
. Juvenile fire setting does an estimated $1.2 billion in damage annually.
It only takes about two minutes for an open flame to set an entire room on fire, and less
than five minutes for that fire to overtake an entire house.
During President Harry S. Truman's address to the President's Conference on Fire
Prevention, he exclaimed the following:
The serious losses in life and property resulting annually from fires cause me
deep concern. I am sure that such unnecessary waste can be reduced. The
substantial progress made in the science of fire prevention and fire protection in
this country during the past forty years convinces me that the means are
available for limiting this unnecessary destruction
In the year of this address-I 947-the national fire loss was approximately $750 million.
Sixty years later-fire loss in 2006 was $11.3 billion.
Many public safety agencies support the prohibition of the sale and distribution of
novelty lighters, including the Burn Institute, San Diego County Fire Chiefs Association,
the Chula Vista Chamber of Commerce Educational Committee, and the Greater San
Diego Regional Chamber of Commerce.
Novelty lighters are designed and marketed with a purpose-they have features that are
attractive to children. Lighters in the form of cartoon characters, toys, guns, watches,
musical instruments, vehicles, toy animals, and food are just a few examples. Some
9-2
May 20, 2008, Item 2
Page 3 of 4
novelty lighters also inchide visual features or sound effects that are entertmmng to
children, such as flashing lights or music. A novelty lighter may operate on any fuel,
inciuding butane or liquid fuel.
Photos I - 4 depict what novelty 'lighters look like.
Photo # I
Photo #2
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Chamber of Commerce: Economic Development & Education Committees
Chula Vista Fire Department staff met with the Economic Development Committee
[EDC] from the Chula Vista Chamber of Commerce on January 29, 2008. The Chula
Vista Chamber of Commerce works hand in hand with businesses, the City and members
of the community, all committed to making Chula Vista one of the nation's premier
places to live, work and play. Staff met with this committee, as they "promote economic
growth in Chula Vista by supporting and encouraging local business expansion and
relocation efforts for all categories of commerce. The committee also monitors the city's
economic development efforts within South County..." The meeting concluded with a
request to bring this presentation forward to the Chamber's Education Committee. In
accordance with this request, Chula Vista Fire Department staff met with the Education
Committee on February 28, 2008, The ban was well received by the committee members;
9-3
May 20, 2008, Item2
Page 4 of4
they agreed that in order for such an ordinance to be successful that education must be a
part of the process.
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is
not site specitic 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
Adopting this ordinance would not have a fiscal impact to the Fire Department or the
City of Chula Vista.
ATTACHMENTS
Greater San Diego Regional Chamber of Commerce Support Letter (A TT ACHMENT 1)
San Diego County Fire Chiefs Association Support Letter (ATTACHMENT 2)
San Diego Burn Institute: Novelty Lighter Ban Fact Sheet (ATTACHMENT 3)
Prepared by: Justin Gipson, Fire Marshal, Fire Department
9-4
ATTACHMENT 1
SAN DIEGO
REGIONAL
CHAMBER Of
COMMERCE
March 3, 2008
James A. Floros
Executi ve Director
Bum Institute
8825 Aero Drive; Ste. 200
San Diego, CA 92123
Dear tvlr. Floros:
On behalf of the San Diego Regional Chamber of Commerce, and our 400,000 members,
please accept this lener as our endorsement of the Bum Institute's efforts to ban the sale of
novelty lighters in San Diego County, as well as throughout California.
The Chamber is proud to support the efforts of the Institute, San Diego COlmty Fire Chiefs'
Association as well as numerous fIre departments and municipalities throughout the area to
prevent the sale ofthese dangerous items. Considering the dangers of children playing with
novelty lighters, a ban is a logical approach for decreasing preventable accidents that pose a
threat to life, property and the safety of fIrefIghters in our community.
The Chamber applauds the Burn Institute for its 35-year history of safeguarding our
community and your commitment to our brave heroes in the fIre service. We are indeed
fortunate to have such a valuable community partner.
If the Chamber can be of any future assistance to you in your efforts, please do not hesitate to
call on us. Good luck to you in your important work. .
Sincerely,
Scott D. Alevy
Vice President, Public Policy and Communications
San Diego Regional Chamber of Commerce
402 West Broadway, Suite 1000
San Diego, CA 92101-3585
9-5
FROM
~oo1-2006
Exeoutive BOArd
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PC-DelE NO.
ATTACHMENT 2
March 12,2009
To Whom It May Concern:
The San Diego County Fitc Chiefs A>5ocialion fully supports a ball on novelty
cigarette lighters.
If you have any questions, please feel free to contact me at 619.667.1467.
Sincerely,
!JWb~k-
David Burk
President
~
cln Bum Instirotc, gB25 A~ro Drive; #200, SI:iI1 Diego, CA 9212J.~26~
9-6
llA . Burn
("institute. NOVEL TY LIGHTER BAN FACT SHEET
ATTACHMENT
3
BACKGROUND
In 2007, Oregon State Fire Marshall, Nancy OrT, issued a call to action to help raise concerns about
novelty lighters to the Consumer Product Safety Commission. Portland Fire Marshall's Office juvenile
fire setter intervention unit is working closely with Oregon SAFE KIDS in making the community aware
of the dangers associated with these lighters.
Death and serious injury to children have resulted from playing with what appear to be harmless toys. As
a result there has been strong opposition to the sale of novelty lighters nationwide. Novelty cigarette
lighters are defined by the Consumer Product Safety Commission as "lighters that depict or resemble
articles commonly recognized as appealing to or intended for use by children under 5 years of age".. .such
as small cars, cell phones, small animals and other toy like items. Currently, sales of these products are in
liquor stores, convenience stores and small discount stores throughout San Diego County. The danger is
obvious. While easily drawn to their colorful appearance and cartoon-like features, young children are
unable to recognize the inherent dangers of these lethal lighters. In small hands the lighters can prove to
be a deadly combination'
BAN DESCRIPTION
Novelty Lighter ban would prohibit sale of lighters that look like toys.
LIGHTER RELATED DEATHS AL'li1> PROPERTY DALWAGE
o An estimated $339 million in property damage has resulted from fires started by children playing with
lighters.
. Roughly two out of every three child-playing fires -- and three out of four associated deaths and
injuries -- involve matches or lighters (NFPA's Children Playing with Fire, by John R. Hall, Jr., March
2005).
CURRENT BAN ON NOVELTY LIGHTERS
San Diego County has joined the movement to ban novelty lighters, which are now being called "toy like"
lighters' in states such as Oregon, California, and Colorado. Nationwide there has been a call to action and
San Diego County has clearly answered that call. With more than five cities now impo;;ing a ban on toy
like lighters, San Diego County is leading the way for other cities nationwide.
o European communities imposed a ban on all sales and importation of novelty lighters in early 2007.
o National City, CA
. Solana Beach, CA
o Vista, CA
o EI Cajon, CA
. North Little Rock imposing ban after fire completely destroys apartment; fire set by two-year-old
playing with a lighter.
. In California, the Bum Institute is a strong supporter and crusader of a ban on all novelty lighters. San
Diego Mayor, Jerry Sanders, has requested that the City Council ban.the sale of all novelty lighters.
Similar state legislature is expected in 2008.
NOVELTY LIGHTER SALES
. An estimated 300 million units of lighters in Europe come from China.
. Over 500 production companies in Wenzhou, China (Major Production Center).
. Production of 5,000 different types, totaling 500 million lighters each year.
. 80 percent are exported abroad.
. Lighters from Wenzhou make up 80 percent of the European market.
Endorsed.by San Diego City Fire Department; Greater San Diego Regional Chamber a/Commerce
9-7
(Jnn 2008_vs.2)
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF CHULA VISTA
AMENDING TITLE 9 OF THE CHULA VISTA
MUNICIPAL CODE BY ADDING CHAPTER 9.23,
SECTIONS 9.23.010 THROUGH 9.23.060 TO
PROHIBIT THE SALE AJ'm/OR DISTRIBUTION OF
NOVELTY LIGHTERS
WHEREAS, novelty lighters have features which are attractive to children, including visual
effects, t1ashing lights, musical sounds, or toy like designs; and
WHEREAS, these toy like designs may not be immediately recognized by children as
dangerous cigarette lighters; and
WHEREAS, such novelty lighters resembling harmless toys are highly attractive to children
and pose an unreasonable risk of injury or death in the possession of inquisitive children; and
WHEREAS, the Consumer Product Safety Commission has recalled thousands of novelty
lighters since 1996 due to their danger to public safety; and
WHEREAS,juvenile fire setting has been identified as the fastest growing fire threat in the
United States; and
WHEREAS, in 2002 the National Fire Protection Association reported that children playing
with fire started an estimated 13,900 structure fires that were reported to U.S. fire departments,
causing an estimated 210 civilian deaths, 1,250 civilian injuries and $339 million in direct property
damage; and
WHEREAS, the Chula Vista Fire Department responded to a multi-family structure fire on
October 03, 2007, which started as a result of children playing with a lighter causing $40,000 in
property damage; and
WHEREAS, more than half of the people killed by fires started by children playing were
under five years of age; and
WHEREAS, many public and private agencies support the prohibition of the sale and
distribution of novelty lighters, including the Burn Institute and several County Fire Chiefs'
Associations, Cities, and the Greater San Diego Regional Chamber of Commerce; and
WHEREAS, the function of a novelty lighter can be achieved without posing a danger of
public health and safety; and
WHEREAS, the United States Fire Administration has added a new code to the National Fire
Incident Reporting System, effective January 1, 2008, to address issues of concern to the fire service:
9-8
Ordinance No.
no.velty lighters will no.w be captured in the Fire Module under a new code for Equipment Involved
in Ignition, code 877.
NOW, THEREFORE, the City Council of the City ofChula Vista do.es hereby o.rdain as
follows:
SECTION 1: That the Chula Vista Municipal Code be amended to. add Chapter 9.23,
Sections 9.23.010 thro.ugh 9.23.060 to read as follows:
Chapter 9.23
RETAIL SALE Ai'ID DISTRIBUTION OF NOVELTY LiGHTERS
Sections:
9.23.010
9.23.020
9.23.030
9.23.040
9.23.050
9.23.060
Purpose and intent.
Definition.
Prohibition.
Exceptions.
Enfo.rcement.
Violatio.ns and penalties.
9.23.010
Purpose and intent.
The City Council finds and declares that:
A. Novelty lighters have features, which are attractive to children, including visual effects,
flashing lights, musical sounds, o.r toy-like designs.
B. As a result o.f this attraction o.f novelty lighters to children, children have used novelty
lighters to' start fires, causing injury, death, and destructio.n of property.
C. Despite the Co.nsumer Product Safety Co.mmissio.n's recall o.f thousands o.f novelty
lighters since 1996 due to their danger to public safety, fires caused by children playing
with no.velty lighters co.ntinue to occur at an increasing rate.
D. Juvenile fire setting has been identified as the fastest growing fire threat in the United
States.
E. The co.ntinued sale, offer for sale, gift, distributio.n, or display of novelty lighters
represents a serious threat to. public safety within the city ofChula Vi~a.
F. The functio.ns of novelty lighters can be achieved thro.ugh the sale, gift, distributio.n, or
display o.f other pro.ducts that do not pose the danger to public health and safety that
novelty lighters present.
9.23.020 Definition. For purposes of this Chapter, "no.velty lighter" means a lighter that has
audio or visu~l effects, or that depicts or resembles in physical form o.r function, through the use of
Page 2 of3
9-9
Ordinance No.
logos, decals, art work, or other features, articles commonly recognized as appealing to or intended
for use by children under eighteen years of age. This includes, but is not limited to, lighters that
depict .or .resemble cartoon characters, toys, guns, watches, musical instruments, vehicles, toy
animals, tood or beverages; that play musical notes; that have flashing lights; that offer other
entertaining features; or that have the physical appearance of other specific objects in form or
function. A novelty lighter may operate on any fuel, including butane or liquid fuel. The term
"novelty lighter" excludes: (1) any lighter manufactured prior to 1980; and (2) any lighter which
lacks fuel or a device necessary to produce combustion or a flame.
9.23.030 Prohibition. It is unlawful for any person, business, corporation, or organization to
sell, offer for sale, give, distribute, or display with intent to sell, give, or distribute any novelty lighter
in the city ofChula Vista.
9.23.040 Exceptions. The prohibition of this Chapter is inapplicable to: (1) novelty
lighters that are solely being actively transported through the city for sale, gift, or distribution
outside of the city, with written documentation of such transportation; or (2) novelty lighters
located in a distribution center closed to the public for purposes of retail sales or distribution
outside the city of Chula Vista. The provisions ofthis Chapter shall not apply where prohibited
or preempted by state or federal law.
9.23.050 Enforcement. The provisions of this Chapter shall be enforced by the fire marshal
and his or her designees, any police officer, any code enforcement officer, and any other city official
authorized to enforce any provision of this Code.
9.23.060 Violation and penalties. Violations of this Chapter may be prosecuted as
misdemeanors as provided by this Code. The City may also seek any administrative remedy and/or
injunctive relief and civil penalties in the Superior Court as provided by this Code and California
state law.
SECTION II: Effective Date. This Ordinance shall take effect and be in force thirty days
after its final passage.
Presented by
Approved as to form by
James S. Geering
Interim Fire Chief
f:Igt(Jiaf!Li~
:<\nn Moore
, City Attorney
Page3of3
9-10