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Home My WebLink About2009/07/21 Agenda Packet I declare under penalty of perjury that I am employed by the City of Chula Vista in the , r, OffIce of the City Clerk and that I posted th~ 11~ . .... ment on the bulletin board IClClOIlIng ~ . Act requlrementl. L7 ~ ~ ~__ ,;',f1~ , 7ft? 0 SIGNED ee) M ~~;~; CHUlA VISTA ~.L Cheryl Cox, Mayor Rudy Ramirez, Councilmember James D. Sandoval, City Manager John McCann, Councilmember Bart Miesfeld, City Attorney Pamela Bensoussan, Council member Donna Norris, City Clerk Steve Castaneda, Councilmember il;~,... fl'- July21,2009 4:00 P.M. Council Chambers City Hall- Building 100 276 Fourth Avenue CALL TO ORDER ROLL CALL: Councilmembers: Bensoussan, Castaneda, McCann, Ramirez, and Mayor Cox PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY . OATHS OF OFFICE -':":. k Youth Action Council Members: Elvia Valeria Vera, Felipe Cardenas, Alicia Cortez, Alexander Salomon, Meagan Nolan, Kathleen Hoskins, Ashley Foz, Haley Alderete, Trey Johnson, Michael Jimenez and Maximiliano Gastelum . PRESENTATION OF A PROCLAMATION TO JOSEPH MARIANO AND JOANNE STOUT, RECREATION SUPERVISORS, PROCLAIMING JULY AS PARKS AND RECREATION MONTH IN THE CITY OF CHULA VISTA . OATH OF OFFICE TO FIRE DEPARTMENT PREVENTION STAFF, ADMINISTERED BY FIRE CHIEF DAVE HANNEMAN, RECOGNIZING STAFF'S PEACE OFFICER STATUS AND NEW MEMBERSHIP IN LOCAL 2180 IAFF LABOR UNION PRESENTATION OF A PROCLAMATION TO MARGARET SCOTT-BLAIR, OWNER OF THE FRAME GALLERY, COMMENDING THE FRAME GALLERY'S 50TH ANNIVERSARY IN THE CITY OF CHULA VISTA . CONSENT CALENDAR (Items 1-8) 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 discussioll. If you wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed immediately following the Consent Calendar. 1. APPROVAL OF MINUTES of the meetings of March 24 and April 2, 2009. Staff recommendation: Council approve the minutes. 2. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 15.04, SECTION 15.04.225, AND CHAPTER 18.16, SECTION 18.16.310, OF THE CHULA VISTA MUNICIPAL CODE (SECOND READING AND ADOPTION) Currently, the City's Municipal Code requires retention of surety bonds associated with land development projects until all work has been completed and a notice of completion is filed with the County Recorder. Adoption of the ordinance would allow the Director of Public Works to reduce grading, landscape and irrigation and faithful performance bonds up to 75% of the original bond amount if the work is deemed substantially complete. This ordinance was introduced July 14,2009. (Director of Public Works Operations) Staff recommendation: Council adopt the ordinance. 3. ORDINANCE OF THE CITY OF CHULA VISTA ADOPTING MITIGATED NEGATIVE DECLARATION AND MITIGATION MONITORING AND REPORTING PROGRAM IS-09-009, AMENDING ZONING MAP OR MAPS ESTABLISHED BY CHULA VISTA MUNICIPAL CODE SECTION 19.18.010 TO ESTABLISH THE PRECISE PLAN MODfFYING DISTRICT AND ADOPT PRECISE PLAN STANDARDS FOR EXCEPTIONS TO PARKING AL'ID SIGN STANDARDS PERMITTED IN CURRENTLY ZONED C-C, CENTRAL COMMERCIAL DESIGNATION, FOR 9.9 ACRES AT THE NORTHWEST CORNER OF NORTH FOURTH A VENUE AND "COO STREET (SECOND READING AND ADOPTION) Adoption of the ordinance rezoncs a 9.9 acre site to add a precise plan modifying district to the existing C-C zoning designation along with a precise plan to allow exceptions to the parking standards and sign provisions of the underlying zone. This will allow the site to be redeveloped with a more contemporary building and site design, thereby implementing the goals and policies of the General Plan, including enhanced "gateway" project design and sustainable development practices. The site currently contains an existing 119,403 square foot Target store and two smaller buildings. All three buildings will be razed and the site completely re-graded in order to redevelop the site for a new 138,144 square foot Target retail building and ancillary improvements. This ordinance was introduced July 14, 2009. (Deputy City Manager/Development Services Director) Staffrecommendation: Council adopt the ordinance. Page 2 - Council Agenda htto:/ /www.chulavistaca.gov July 21, 2009 4. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 20.04 OF THE CHULA VISTA MUNICIPAL CODE BY REVISING SECTIONS 20.04.010, 20.04.025 AND 20.04.030, AND ADDING SECTION 20.04.040 (FIRST READING) Adoption of the ordinance establishes the policy framework for the City's new solar pre- wiring and pre-plumbing requirements in Chula Vista Municipal Code's "Energy Conservation" section (Chapter 20) and align the policy with the technical requirements previously adopted by City Council in January 2009. The proposed code revisions also provide clarification to the Chapter's purpose and terminology. (Director of Conservation & Environmental Services) Staff recommendation: Council place the ordinance on first reading. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SUBMITTAL OF A CLIMATE SHOWCASE COMMUNITIES GRANT APPLICATION TO THE ENVIRONMENTAL PROTECTION AGENCY FOR $471,000, AND AUTHORlZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL DOCUMENTS NECESSARY TO OBTAIN AND MANAGE GRANT FUNDS In response to the Environmental Protection Agency Climate Showcase Communities grant solicitation, staff has prepared a $471,000 proposal to retrofit two neighborhood areas to serve as a living showcase for "Carbon-Light Communities." Specifically, Chula Vista will select approximately 50 existing homes to upgrade with energy efficiency, water conservation and renewable energy improvements. The "Carbon-Light" neighborhoods will serve as a social marketing tool for the City's broader Horne Upgrade, Carbon Downgrade program that is designed to provide streamlined contracting, permitting and property-secured financing for carbon-saving retrofits at over 2,000 homes over the next 3 years. (Director of Conservation & Environmental Services) Staffrecommendation: Council adopt the resolution. 6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ENTERING INTO A PROPERTY USE LICENSE AGREEMENT WITH TRUGREEN LANDCARE Due to current budget constraints, the Public Works Department is scheduled to terminate or suspend ongoing maintenance contracts for fiscal year 2009/2010. This action would result in the need to perform necessary maintenance with existing City Parks staff. A current contractor, TruGreen LandCare, has offered to continue their services to the City at no cost in exchange for a staging location from which they can service their local contract. (Director of Public Works) Staff recommendation: Council adopt the resolution. Page 3 - Council Agenda htto:/ /www.chu\avistaca.gov July 21, 2009 7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUMMARY VACATlON OF A PORTION OF A 33-FOOT WIDE ALLEY LOCATED BETWEEN BLOCKS 17 A,'ID 18 OF MAP NO. 598 AND DIRECTING THE CITY CLERK TO RECORD ALL DOCUMENTS REQUIRED WITH THE COUNTY RECORDER The owner of the property described as Blocks 17 and 18 of Map No. 598, located at 1720 Fourth Avenue and 116 Seventh Street, respectively, has requested to the City to vacate the portion of the 33-foot wide alley located between the two lots that has not been used, or maintained by the City for more than five years. (Deputy City Manager/Development Services Director) Staff recommendation: Council adopt the resolution. 8. URGENCY ORDINANCE OF THE CITY OF CHULA VISTA PLACING A MORATORIUM ON THE LEGAL ESTABLISHMENT AND OPERATlON OF MEDICAL MARIJUANA DISPENSARIES WITHIN THE CITY OF CHULA VISTA (4/5THS VOTE REQUIRED) The interim urgency ordinance bans medical marijuana dispensaries while the City studies whether the dispensaries expressly should be permitted, and if so permitted, the appropriate regulations for such uses, within a reasonable time. Given the time required to undertake the necessary study and planning, it is necessary that this interim urgency ordinance be immediately enacted to ensure that no medical marijuana dispensaries that may be in conflict with any state or federal law, or the City's general plan, zoning, and/or development policies are permitted in the interim. (City Attorney) Staff recommendation: Council adopt the urgency ordinance and direct staff to study the applicable legal and land use issues and develop appropriate zoning and licensing guidelines or regulations governing such uses, and/or prohibition of such uses if that is authorized by law and desired by the Council. ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC COMMENTS Persons speaking during Public Comments may address the Council on any subject matter within the Council'sjurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council Ji'om discussing or taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for fiilure discussion or refer the matter to staff. Comments are limited to three minutes. PUBLIC HEARINGS The following item(s) have been advertised as public hearing(s) as required hy law. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Page 4 - Council Agenda htto:/ /www.chulavistaca.gov July 21, 2009 9. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL BIDDING PROCESS Ai'lD APPROVING A THREE- PARTY AGREEMENT BETWEEN THE CITY OF CHULA VISTA, RECON (CONSULTANT), AND OTAY LAND COMPANY LLC (APPLICANT), FOR CONSULTING SERVICES RELATED TO THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT (EIR) FOR THE UNIVERSITY VILLAGES GENERAL PLAN AMENDMENT, AND OTAY RANCH GENERAL DEVELOPMENT PLAN AMENDMENT, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The applicants have filed General Plan amendment and General Development Plan amendment applications for the University Villages Project. The Environmental Review Coordinator has determined that the proposed project requires the preparation of an Environmental Impact Report (EIR). The item before the City Council is a request for the City Council to approve the proposed contract with RECON for an amount not to exceed $394,744 to provide consultant services for the preparation of the CEQA required environmental documents for the proposed project and an additional $98,686 for additional services should they be necessary. (Deputy City Manager/Development Services Director) Staff recommendation: Council continue the public hearing to the meeting of August 4, 2009. OTHER BUSINESS 10. CITY MANAGER'S REPORTS 11. MAYOR'S REPORTS A. Consideration of options of appointment for interim City Councilmember. B. Consideration of ratification of reappointments to the following boards and commISSIons: FIRST TERM RE-APPOINTMENTS: Cultural Arts Commission Board of Ethics Growth Management Oversight Commission Growth Management Oversight Commission Housing Advisory Commission Planning Commission Resource Conservation Commission Erica Fessia Anthony Jemison Eric Sutton James Doud Mauricio Torre Mitchell Thompson Sassan Rahimzadeh SECOND TERM RE-APPOINTMENTS: Commission on Aging Board of Appeals & Advisors Board of Appeals & Advisors Ann Perry Ben West Jan Buddingh, Jr. Page 5 - Council Agenda httn:/ /www.chulavistaca.gov July 21, 2009 Charter Review Commission Charter Review Commission Child Care Commission Civil Service Commission Cultural Arts Commission Design Review Board Design Review Board Housing Advisory Commission International Friendship Commission International Friendship Commission Nature Center Board of Trustees Planning Commission Resource Conservation Commission Ron Kelley Egbert Oostbcrg Jeanne Highhouse David Maruffo Ron Bolles David Bringas Yolanda Calvo Armida Martin Del Campo A ya Ibarra Rita Legaspi Barbara Main Michael Spethman Georgie Stillman EX-OFFICIO MEMBER RE-APPOINTMENTS: Mobilehome Rent Review Commission Mobilehome Rent Review Commission Edmond La Pierre Steve Epsten YOUTH ACTION COUNCIL RE-APPOINTMENTS - 2009/2010: Mariana DeSaracho, Chula Vista High Kate Googins, Our Lady of Peace Matt Hoffman, High Tech High Astrid (Rosemary) Lamprecht, Bonita Vista High Alan (Miles) Mellor, Eastlake High David Garza, Bonita High C. Ratification of appointment of Mauricio Lopez, Mater Dei High, to the Youth Action Council for the 2009/2010 school year. 12. COUNCILMEMBERS' 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. CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: 226 Garrett Avenue (568-042-1300), 286 Ash Avenue (567-052- 0600), and 110 Oaklawn Avenue (565-151-2200) Negotiating Parties: City ofChula Vista - Amanda Mills Under Negotiation: Price and terms. 14. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) Page 6 - Council Agenda htto:/ /www.chulavistaca.gov July 21,2009 1. Felix Espino y. City of Chula Vista, U.S. District Court, Case No. 03CV1884- DMS(BLM) 2. South Bay Expressway, L.P., et at Y. City of Chula Vista, San Diego Superior Court, Case No. GIC 869386. ADJOURNMENT to the Regular City Council Meeting of July 28,2009 at 4:00 P.M. in the City Council Chambers. Materials provided to the City Council related to any open-session item on this agenda are available for public review at the City Clerk's Office, located in City Hall at 276 Fourth Avenue, Building 100, during normal business hours. In compliance with the AMERICANS WITH DISABILITIES ACT The City ofChula 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) 691-5041 at least forty-eight hours in advance of the meeting. Page 7 - Council Agenda htto:llwww.chulavistaca.gov July 21, 2009 .' DRAFT , MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL AND A SPECIAL MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA March 24, 2009 6:00 P,M, A Regular Meeting of the City Council and a Special Meeting of the Redevelopment Agcncy of the City ofChula Vista was called to order at 6:01 p,m, in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California, ROLL CALL: PRESENT: CouncillAgencymembers Bensoussan (arrivcd at 6:02 p,m,), Castaneda (arrived at 6:02 p,m,), McCann, Ramircz, and Mayor Cox ABSENT: None ALSO PRESENT: City Manager/Executive Director Sandoval, City Attorney/Agency Counsel Micsfeld, City Clerk Norris, and Deputy City Clerk Bennett PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF S]LENCE SPECIAL ORDERS OF THE DAY . PRESENT A nON BY LYNETTE JONES, SMALL BUS]NESS LIAISON, ON THE CITY OF CHULA VISTA SPONSORED WOMEN ENTREPRENEURS (WE) BUSINESS FORUM, APR]L 8, 2009 FROM 3:00 P,M, TO 5:00 P,M, AT THE CHULA VISTA WOMENS CLUB; AND RECOGNITION OF THOY YEATON, OWNER, MEA KWAN THAI CUISINE; ERENDlRA ABEL, FOUNDER, A WOMENS WELLNESS CENTER: AND DIANE CLARKE, O'lVNER, CAPE COD CENTER, NAPLES CENTER, PLAZA GA TEW A Y Lynette Jones spoke about the upcoming Women Entrcpreneurs Business Forum on April 8, 2009, She then introduced and recognized Womcn Entrepreneurs Erendira Abel, Diane Clarke, and Thoy Y caton, and Couneilmember Bensoussan prcsented them with certificates of recognition, . PRESENTATION BY LEA]-] BROWDER, DEPUTY CITY MANAGER/LIBRARY DIRECTOR, OF THE BATTLE OF THE BOOKS, SEVENTH SEASON W]NNERS Deputy City Manager/Library Director Browder talked about the recent Battle of the Books event, and shc thanked the sponsors of the cvent She then introduced Senior Librarian Taylor who introduced the Battle of the Books team winners representing Kellogg Elementary, Halecrest Elementary, and Chula Vista Hills Elementary, She then introduced Helyn Sloan, representing Altrusa International, who talked about the success of the projceL Ms, Sloan then prescnted a $] 00 Barncs and Noble gift card to each school, on bchalf of AItrusa International, Chula Vista, Page I City Council/RDA Minutes March 24, 2009 l/f-! DRAFT SPECIAL ORDERS OF THE DA Y (Continued) . PRESENT A TION BY BRENDAN REED, ENVIRONMENTAL RESOURCE MANAGER, ON EARTH HOUR 2009 Environmental Resource Manager Reed announced the upcoming Earth Hour event on March 28, 2009 at 8:30 p.m., a global event to raise awareness about climate change and a call to action for climate protection. People worldwide were being asked to turn off lights for one hour. Mr. Reed also announced the opportunity for local residents and businesses for free energy assessments and a lighting exchange on April 18, 2009, from 11 :00 a.m. to 4:00 p.m. at Friendship Park. CONSENT CALENDAR (Items 1-13) Mayor Cox announced that Item 2 would be continued to the meeting of April 7, 2009. Items 3, 4, and 13 were removed from the Consent Calendar for Councilmember abstentions. and Item 5 was removed for discussion by members of the public. I. WRITTEN COMMUNICATIONS A. Letter of resignation from Sharon Harmon, member of the Nature Center Board of Trustees. B. Letter of resignation from Kerry Knowlton, member of the Cultural Arts Commission. Staff recommendation: Council accept the resignations and direct the City Clerk to post the vacancies in accordance with Maddy Act requirements. 2. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SUBMITTAL OF A GRANT APPLICATION TO THE CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION TO EXPAND THE CHULA VISTA URBAN SHADE TREE PROJECT AND AUTHORIZING THE CITY MANAGER TO EXECUTE ALL DOCUMENTS IN CONJUNCTION WITH IMPLEMENTING THE GRANT AGREEMENT Staff recommendation: Council continue the item to April 7, 2009. 3. This item was removed from the Consent Calendar. 4. This item was removed from the Consent Calendar. 5. This item was removed from the Consent Calendar. Page 2 - City CouncillRDA Minutes March 24, 2009 Ifj'~ DRAFT CONSENT CALENDAR (Continued) 6. RESOLUTION NO. 2009-058, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CI-IULA VISTA APPROVING A FIVE YEAR CONTRACTUAL AGREEMENT WITH SAN DIEGO FIRE-RESCUE DEPARTMENT FOR THE PROVISION OF FIRE AND EMERGENCY MEDICAL DISPATCH SERVICES FOR THE CITY OF CHULA VISTA On December 11, 2007, the City Council directed the City Manager to enter into negotiations and execute any letters of intent or memoranda of understanding for the purpose of acquiring fire and emergency medical dispatch services from San Diego Fire- Rescue Department. Staff has successfully concluded negotiations and is requesting approval of a five-year contractual agreement for the provision of fire and emergency medical dispatching services. (Fire Chief) Staffrecommendation: Council adopt the resolution. 7. RESOLUTION NO. 2009-059, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FOURTH AMENDMENT TO Tl-IE CONTRACT WITH ADVOCATION, INC., EXERCISING THE CITY'S OPTION TO EXTEND THE CONTRACT FOR LEGISLATIVE REPRESENTATION FOR Tl-IE . 2009 AND 2010 LEGISLATIVE SESSIONS The City of Chula Vista's contract with the firm of Advocation, Inc. for legislative representation in Sacramento has expired. The original agreement with the firm allowed for four two-year contract extensions; three of which have been exercised. Staff is recommending implementation of the final contract extension based on the firm's willingness to proceed for a fee of$1 per year. (Government Relations Liaison) Staff recommendation: Council adopt the resolution. 8. REsoLUTION NO. 2009-060, RESOLUTION OF THE CITY COUNCIL OF Tl-IE CITY OF CHULA VISTA APPROPRIATING $70,000 FROM THE AVAILABLE BALANCE OF THE TRAFFIC SAFETY FUND FOR THE PURCHASE OF TRAFFIC SAFETY EQUIPMENT (4/5THS VOTE REQUIRED) The City of Chula Vista Police Department receives funds from each tramc related ticket that is written. These funds are deposited into the Tramc Safety Fund. The Police Department is requesting to appropriate $70,000 from the Traffic Safety Fund for the purchase of equipment for the Tramc Unit to support the various traffic safety programs that are currently being conducted. (Police Chief) Staff recommendation: Council adopt the resolution. Page 3 - Council/RDA Minutes March 24. 2009 /1~3 DRAFT CONSENT CALENDAR (Continued) 9. RESOLUTION NO. 2009-061, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CI-IULA VISTA APPROVING THE SUBMITTAL OF GRANT APPLICA TIONS FOR STATE SAFE ROUTES TO SCHOOL FUNDING CYCLE 8 TO IMPROVE PEDESTRIAN FACILITIES AT VARIOUS ELIGIBLE LOCATIONS California legislated a Safe Routes to School (SR2S) program in 1999 with the enactment of AB 1475. The goals of the program are to reduce injuries and fatalities to schoolchildren and to encourage increased walking and bicycling among students. Adoption of the resolution approves the submittal of grant applications for funding Cycle 8. (Public Works Director) Staffrecommendation: Council adopt the resolution. 10. RESOLUTION NO. 2009-062, RESOLUTION OF TI-IE ClTY COUNCIL OF THE CITY OF CI-IULA VISTA AMENDING TI-IE FISCAL YEAR 200812009 BUDGET AND APPROPRIATING A TOTAL OF $14,458.07 FROM THE AVAILABLE FUND BALANCE TO REIMBURSE MANUEL CONTRERAS, BONlT A GA TEW A Y LLC., AND M & A CONSTRUCTION (4/5THS VOTE REQUIRED) Adoption of the resolution refunds certain permit fees for Building Permit Number BR07-000] to Manuel Contreras associated with his property located at 4]8 Tremont Street: a refund of sewer capacity fees due to a plan change for Building Permit Number B08-0473 to Bonita Gateway LLC for its property at 300] Bonita Road, and a refund of sewer capacity fees due to a plan change for Building Permit Number B08-] 030 to M & A Construction associated with its property at 303 Broadway. (Public Works Director) Staff recommendation: Council adopt the resolution. ] I. RESOLUTION NO. 2009-063, RESOLUTION OF THE ClTY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENTS BETWEEN THE CITY AND (A) NINYO & MOORE GEOTECHNICAL & ENVIRONMENTAL SCIENCES CONSULTANTS, (B) MACTEC ENGINEERING AND CONSULTING, INC., (C) NOVA ENGTNEERING AND ENVIRONMENTAL, LLC., AND (D) SOUTHERN CALIFORNIA SOIL & TESTING, INC. TO PROVIDE ON-CALL GEOTECHNICAL, STORM WATER MONITORING, MA TERJALS TESTING AND SPECIAL INSPECTION CONSULTING SERVICES FOR VARIOUS CAPITAL IMPROVEMENT PROJECTS (CIP) OR OTHER CITY PROJECTS The construction of public works infrastructure improvements and buildings require the use of quality materials and construction methods to assure longevity and usefulness. In an effort to ensure that the City continues to obtain quality improvements, materials testing, geotechnical engineering, storm water monitoring and special inspection services for projects built with both public and private funds, a Request for Proposals (RFP) was issued tor said services. Staff has completed the review of the proposals and selection process for the consulting services and has negotiated the proposed contracts. Adoption of the resolution finalizes the process and approves agreements for the services requested. (Public Works Director) Staffrecommendation: Council adopt the resolution. Page 4 - City Council/RDA Minutes March 24, 2009 1/1 -'I DRAFT CONSENT CALENDAR (Continued) 12. RESOLUTION NO. 2009-064, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND SPRING VALLEY SANITATION DISTRICT REGARDING SEWER FLOW GENERA TED BY THE CHURCH OF THE GOOD SHEPHERD The Church of the Good Shepherd, located within the County of San Diego at 3990 Bonita Road, Bonita, California, is seeking to expand its existing structure and use. While the County's Spring Valley Sanitation District has agreed to provide sewer service to the church, the nearest existing scwer line is a City of Chula Vista facility. Adoption of the resolution approvcs the agrecment and details the City requirements that would be implcmented if such a connection was to occur, including allowed flow volume, maintenance responsibilities, and costs associated with such a connection. (Public Works Director) Staff recolllmcndation: Council adopt the resolution. 13. This item was rcmoved from the Consent Calendar. ACTION: Mayor Cox moved to approve staffs recommcndations and offered the balance of the Consent Calendar - Items 1 and 6- ] 2, headings read, text waived. Deputy Mayor McCann'seconded the motion and it carried 5-0. ITEMS REMOVED FROM THE CONSENT CALENDAR 3. RESOLUT]ON NO. 2009-055, RESOLUT]ON OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE CERTIFIED ENVIRONMENTAL IMPACT REPORT FOR THE SAN DIEGO REGIONAL ENTERPRISE ZONE (SDREZ) AND APPROVING THE SDREZ BOUNDARY MOD]FICATlONS AS PRESENTED In ] 992 the City of San Diego received approval for the South Bay Enterprise Zone. In 2000 and again in 2004. the South Bay Enterprisc Zone was expanded to include properties along the Bayfront redevelopment areas of the cities of Chu]a Vista and Nationa] City. The South Bay Enterprise Zone expired on January 27, 2007. ]n August 2006, Council approved a resolution supporting and authorizing the submittal of a joint application to the State of California Housing and Community Development Department for a new regional Enterprise Zone designation, with the citics of San Diego and Nationa] City. This partnership was "Conditionally Approved" in October of 2006 and City staff in collaboration with the cities of San Diego and National City is engaged in the task of completing the remaining conditions. Adoption of the resolution accepts the Certified Environmental Impact Report and approves the San Diego Rcgional Enterprise Zone Boundary Modification as presented. (Deputy City Manager/Development Services Director) Staff recommendation: Council adopt the resolution. ACTION: Mayor Cox moved to approve staffs recommendation and offered Resolution No. 2009-055, heading read, text waived. Councilmember Bensoussan seconded the motion, and it carried 3-0-2, with Counci]members Castaneda and Ramirez abstaining. Page 5 - CouncillRDA Minutes March 24, 2009 /~"s- DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR (Continued) 4. RESOLUTION NO. 2009-056, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE CITY MANAGER TO EXECUTE nIE FUNDING APPROVAL AGREEMENT WITH THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND OTHER RELATED DOCUMENTS; AND AUTHORIZING APPROPRIATIONS OF $2,830,072 TO FUND THE AMENDED 2008/2009 ANNUAL ACTION PLAN FOR IMPLEMENT A TION OF THE NEIGHBORHOOD STABILIZA TION PROGRAM (4/5THS VOTE REQUIRED) In January 2009, the Department of Housing and Urban Development approved the City's Draft 2008-2009 Amended Annual Action Plan, which proposcd three activities to be funded with the Neighborhood Stabilization Program funds in the amount of $2,830,072. Adoption of this resolution will appropriate the funds to specific activities. This item was first heard at the March 3, 2009 Council meeting. (Deputy City Manager/Development Services Director) Staffrccommendation: Council adopt the resolution. ACTION: Councilmember Castaneda moved to approve staffs recommendation and offercd Rcsolution No. 2009-056, heading rcad, text waived. Councilmember Ramirez seconded the motion and it carried 4-0-1, with Deputy Mayor McCann abstaining. 5. RESOLUTION NO. 2009-057, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE FILING OF AN APPLICATION FOR TRANSPORTATION PLANNING GRANT FUNDS THROUGH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION FOR nIE PALOMAR GATEWAY DISTRICT SPECIFIC PLANNING PROCESS, CONFIRMING THE LOCAL NECESSARY MATCH FUNDS FOR THE PROJECT, STATING THE CITY'S ASSURANCE TO COMPLETE THE PROJECT SHOULD GRANT FUNDING BE AWARDED, AND AUTHORIZING DEPUTY CITY MANAGER, OR HIS . . . DESIGNEE, TO EXECUTE ALL DOCUMENTS NECESSARY TO SECURE THE GRANT FUNDING SHOULD THE GRANT BE AWARDED The California Department of Transportation (Caltrans) released a call-for-projects as part of the Caltrans Transportation Planning Grants program. Under this program, CaItrans providcs grants to cities and non-profit organizations to complete improvemcnt or planning projects that promotc strong and healthy communitics, economic developmcnt and environmcntal protection. Adoption of the resolution authorizes staff to file a grant application to fund the Palomar Gateway Spccific Planning Proccss. Applications are due April 1, 2009, and must be supported by a resolution or minutes ordcr ofthc City Council. (Deputy City Manager/Dcvelopment Services Director) Staffrecommcndation: Council adopt the rcsolution. Page 6 - City Councij/RDA Minutes March 24, 2009 /4~~ DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR (Continued) Planning and Building Director Halbert gave an overview of the projects proposed to be funded with the grants. Thcrcsa Acerro, Chula Vista resident, rcpresenting the Southwest Chub Vista Civic Association, spoke in opposition to the portion of the grant application that addressed community outreach and participation through the Southwest United in Action. She suggested that business owners and residents be involved in the specific planning process. Hugo Ivan Salazar, Chula Vista resident, representing Communities Taking Action, stated that it made no sense for the City to create a civic community organization for community redevelopment projects, since existing established organizations could provide the necessary comments to articulate a plan for businesses and residents. ACTION: Mayor Cox moved to approve staffs recommendation and ofTered Resolution No. 2009-057, heading read, text waived. Deputy Mayor McCann seconded the motion and it carried 4-0-1, with Councilmember Ramirez abstaining. 13. RESOLUTION NO. 2009-065, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AWARDING A THREE-YEAR CONTRACT WITH TWO OPTIONAL, CONSECUTIVE ONE-YEAR EXTENSIONS FOR ASSESSMENT DISTRICT AND COMMUNITY FACILITIES DISTRICT JUDICIAL FORECLOSURE SERVICES TO STRADLING, YOCCA, CARLSON AND RAUTH, AND AUTHORIZING THE CITY MANAGER TO NEGOTIATE THE TWO ONE-YEAR EXTENSIONS AND EXECUTE ALL RELATED DOCUMENTS The proposed agreement will retain thc services of Stradling, Y occa, Carlson and Rauth to perf0n11 judicial foreclosure serviccs on City Assessment Districts and Community Facilities Districts and coordinate the collection of all delinquent installment payments on these Districts, as requested by the City. (Finance Director/Public Works Director) Staff recommendation: Council adopt the resolution. ACTION: Mayor Cox moved to approve staffs recommcndation and offered Resolution No. 2009-065, heading read, text waived. Councilmember Bensoussan seconded the motion and it carried 4-0-1, with Deputy Mayor McCann abstaining. PUBLIC COMMENTS Hugo Ivan Salazar, ChuIa Vista resident, representing Communi tics Taking Action, stated there were community concerns with the ongoing drug war and associated crime at the U.S.lMexico border crossing. To that end, he invited the community to attend the "Chula Vista - A Border Community and The Drug War Next Door" meeting on Wednesday, April 1,2009 at 6:00 p.m., at the Chula Vista Civic Public Library, 365 F Street, Chula Vista. Page 7 - Council/RDA Minutes March 24. 2009 /1}- 7 DRAFT PUBLIC COMMENTS (Continued) Theresa Acerro, Chula Vista resident, representing Southwest ChuJa Vista Civic Association, spoke in opposition to a letter written in the City's name from an employee, to the California Energy Commission, about the proposed MMC peaker power plant. She stated there was a need for discussion about policies and procedures on these matters in an open forum. Patricia Aguilar, representing Crossroads II, spoke about the need to relocate the proposed MMC peaker power plant. and she urged the Council to direct the City Manager to work with the California Energy Commission to site the plant elsewhere. PUBLIC HEARINGS 14. CONSIDERATION OF THE PROPOSED ASSESSMENT OF CERTAIN DELINQUENT SEWER SERVICE CHARGES AS RECORDED LIENS UPON THE RESPECTIVE OWNER OCCUPIED PARCELS OF LAND AND PLACEMENT OF DELINQUENT CHARGES ON THE NEXT REGULAR TAX BILL FOR COLLECTION The Chula Vista Municipal Code Section 13.14.150 allows delinquent sewer service charges to be assessed as recorded 1 iens upon the affected owner occupied properties and ultimately placed on the property tax bills for collection. (Finance Director) Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Cox opened the public hearing. There being no members of the public who wished to speak, Mayor Cox closed the public hearing. ACT10N: Councilmember Castaneda moved to adopt the following Resolution No. 2009- 066, heading read, text waived: RESOLUTION NO. 2009-066, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ASSESSING CERTAIN DELINQUENT SEWER SERVICE CHARGES AS RECORDED LIENS UPON THE RESPECTIVE OWNER OCCUPIED PARCELS OF LAND AND APPROVING PLACEMENT OF DELINQUENT CHARGES ON THE NEXT REGULAR TAX BILL Deputy Mayor McCann seconded the motion and it carried 5-0. 15. CONSIDERATION OF THE PROPOSED ASSESSMENT OF CERTAIN DELINQUENT SOLID WASTE SERVICE CHARGES AS RECORDED LIENS UPON THE RESPECTIVE OWNER OCCUPIED PARCELS OF LAND AND PLACEMENT OF DELlNQUENT CHARGES ON THE NEXT REGULAR TAX BILL FOR COLLECTION Page 8 - City Council/RDA Minutes /#----f March 24, 2009 DRAFT PUBLIC HEARINGS (Continued) The Chula Vista Municipal Code Section 8.24 allows delinquent solid wastc service charges to bc assessed as recorded liens upon the affected properties and ultimately placed on the property tax bills for collection. (Finance Director) Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Cox opened the public hearing. There being no members of the public who wished to speak, Mayor Cox closed the public hearing. ACTION: Councilmember Ramirez moved to adopt the following Resolution No. 209-067, hcading read, text waived: RESOLUTION NO. 2009-067, RESOLUTION OF THE CITY COUNCIL OF THE ClTY OF CHULA VISTA ASSESSING CERTAIN DELINQUENT SOLID WASTE SERVICE CHARGES AS RECORDED LIENS UPON THE RESPECTIVE PARCELS OF LAND AND APPROVING PLACEMENT OF DELINQUENT CHARGES ON THE NEXT REGULAR TAX BILL Deputy Mayor McCann seconded the motion and it carried 5-0. 16. This item was considered after Item 17. Item 17 was taken out of order and heard prior to Item 16. 17. CONSlDERA TION OF WAIVING IRREGULARITIES IN THE BID RECEIVED FOR THE "PAVEMENT REHABILITATION PROGRAM (DIG-OUT) FISCAL YEAR 2007/2008 (STL-3335A)" PROJECT PER CITY CHARTER SECTION 1009 On February 25, 2009, the Director of Public Works received sealed bids for the project. The work consists of the removal/replacement of failed asphalt pavement, crack filling, weed removal and treatment with herbicide, on various pavement locations in the City. Other work includes the replacement of damaged traffic signal loops, striping, pavement markings, traffic control, other miscellaneous work, and all labor materiaL equipment, and transportation necessary for the project. As there were minor irregularities in the bid rclated to a multiplication error in the City's favor, staff is recommending waiving the irregularities in the bid and accepting and awarding the contract to Frank & Son Paving, Inc. (Public Works Director) Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and at the time specified in the notice. Mayor Cox opened thc public hearing. There being no members of the public who wished to speak, Mayor Cox closed the public hearing. Page 9 - Council/RDA Minutes March 24. 2009 /11 '7 DRAFT PUBLIC HEARINGS (Continued) ACTION: Councilmember Ramirez moved to adopt the following Resolution No. 2009-068, heading read, text waived: RESOLUTION NO. 2009-068, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING IRREGULARlTIES, ACCEPTING BIDS AND A WARDING THE CONTRACT FOR THE "PAVEMENT REHABILITATION PROGRAM (DIG-OUT) FISCAL YEAR 2007/2008, (STL- 335A)" PROJECT TO FRANK AND SON PAVING, INCORPORATED IN THE AMOUNT OF $1,903,250.49 AND AUTHORIZING THE EXPENDITURE OF ALL A V AILABLE FUNDS IN THE PROJECT Councilmember Castaneda seconded the motion and it carried 5-0. 16. CONSIDERATION FOR REVIEW OF THE CITY'S HOUSING AND URBAN DEVELOPMENT FEDERAL GRANT PROGRAMS FOR 2009/2010 (COMMUNITY DEVELOPMENT BLOCK GRANT, HOME INVESTMENT PARTNERSHIP ACT AND EMERGENCY SHELTER GRANT) The City has received and reviewed funding applications for the Community Development Block Grant (CDBG), the Home Investment Partnerships Act (HOME), and the Emergency Shelter Grant Funds (ESG). This hearing provides the public with the opportunity to give input on the community's housing and eommunity development needs. Staff will also offer CouneiI funding level reeommendations for all eligible projeets/programs for the 2009/2010 fiscal year. (Deputy City Manager/Development Services Direetor) Redevelopment and Housing Manager Mills and Project Coordinator Davis presented the 2009/2010 Federal Grant Program. Mayor Cox opened the public hearing. The following CDBG, HOME and ESG grant applicants requested Council consideration of funding for their respective organizations: Scody I-Iage, San Diego resident, representing San Diego Food Bank, requested $31,663 for the Food 4 Kids Backpack Program. Bob White, Chula Vista resident, representing the Chula Vista Veterans Home Foundation, requested $3,600 for Rehabilitation Services. John R. Clingan, Imperial Beach resident, representing Chula Vista Boys and Girls Club, requested $25,912 for Safe Kids Transportation Services. Page 10 - City Council/RDA Minutes March 24. 2009 11l---/tJ DRAFT PUBLIC HEARINGS (Continued) Margarita Holguin, Chula Vista/Bonita resident, representing Chula Vista Community Collaborative, requested $45,000 for Chula Vista Family Assessment and Referral. Mariccla Ortega, Chula Vista resident spoke about how hcr family had benefited trom assistance receivcd by the Chula Vista Community Collaborative. John Canale, San Diego resident representing Lutheran Social Services, requested $24,000 each for project Hand and Caring Neighbor programs. Jennette Lawrcnce, San Diego resident, representing Family Health Centers of San Diego, requestcd $30,000 for KidCare Express Mobile Unit Mary Scott Knoll, reprcsenting Fair Housing Council of San Diego, requested $39,000 for the Fair Housing Audit Services. Rosemarie Johnston, San Diego resident, representing Interfaith Shelter Network, requested $10,350. Staffmember Mills noted a correction on the staff report, stating that the Tier 3 applicants were recommended at 80% of prior year funding, rather than 74% as indicated in the report. Councilmember Castaneda asked staff to look at providing assistance to community members who would qualify for the Community Housing Improvement Program (CI-IIP) for energy efficiencies and weatherization home improvements. He recommended efforts by staff to help prevent businesses from victimizing homeowners facing possible home foreclosures, and he requested a report from Community Housing Works on the matter. He asked staff to schedule organizations involved with foreclosure prevention workshops, to come before the Council with information about the program. Deputy Mayor McCann ask cd staff to ensure that CDBG applicants were aware of the criteria being used to base tier designation, and to better explain the criteria to applicants for next year. He suggested for the future, to set aside a portion of undesignated CDBG funding in order to provide the Council more flexibility with its decisions for funding distribution. He further suggested Council consideration of additional funding for the Boys and Girls Club, Kids Care Express Mobile Unit, and Chula Vista Community Collaborative, should more funding become available. Councilmember Ramirez spoke about the need for additional resources for the Lauderbach Park and associated Boys and Girls Club programs, should additional funding become available. Discussion ensucd between Councilmember Ramirez and staff, with an explanation by staff; of the City's audit process for grant applicants. Page II - Couneil/RDA Minutes Mareh 24. 2009 /11---// DRAFT PUBLIC HEARINGS (Continued) There being no further members of the public who wished to speak, Mayor Cox closed the public hearing. Councilmember Castaneda requested that the Council be gIven a few days to consider the recommendations, and make a determination at a future meeting. Staffmember Mills recommended that the Council make any adjustments to the proposed funding levels at that time, but in no event later than the l1rst Council meeting in April, to allow the rcquired 30-day public comment period prior to submission to HUD (Housing and Urban Development). Councilmember Castaneda indicated that he was willing to move forward with the report as presentcd by staff. Staf1illcmber Mills suggested that if additional CDBG funds became available, staff could provide a report to the Council with additional recommendations. It was the consensus of the Council to accept the staffreport. No fornlal action was taken on this item. At 8:01 p.m., Mayor Cox recessed the Council Meeting. The meeting reconvened at 8:13 p.m. with all members present. ACTION ITEMS 18. CONSIDERA nON OF RECOMMENDING THAT A MEASURE BE PLACED ON THE JUNE 2014 BALLOT TO AMEND OR REPEAL PROPOSITION A On January 20, 2009 the City Council adopted Ordinance No. 3123 submitting a Transaction and Use Tax (commonly referred to as a "Sales Tax") to the electorate. This Sales Tax measure is on the ballot for a mailed ballot election, with mailcd ballot returns due on May 5, 2009. This Sales Tax measure has been designated by the San Diego County Registrar of Voters as Proposition A ("Prop A"). At the City Council meeting of February 17, 2009, pursuant to City Council Referral No. 392, the City Council requested that the City Attorney prcparc a resolution for City Council consideration to place a ballot measure on the June 2010 general election that would allow the electorate to determine in year 2014, should Prop A pass, whether or not to continue or repeal Prop A. City Council may adopt a resolution that requests that in the year 2014 the City Council submit to the electorate either an amcndment or repeal of Prop A. Page ]2 - City CouncillRDA Minutes March 24. 2009 //1.;/.).... DRAFT ACTION ITEMS (Continued) Deputy City Attorney Shirey gave an overview of this item. He explained that the current Council could not place an item on the ballot for 2014, but that it could recommcnd that thc Council sitting at that timc place a measurc on the ballot. Patricia Aguilar, Chula Vista resident, representing Crossroads II, stated that the languagc in the proposed rcsolution was too conditional, and she distributed for Council Consideration her suggested amendcd language for the resolution. ACTION: Councilmcmber Castaneda moved to adopt the following Rcsolution No. 2009- 069, as amended, heading read, text waived: RESOLUTION NO. 2009-069, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA RECOMMENDING THAT A MEASURE BE PLACED ON THE JUNE 2014 BALLOT TO AMEND, REPEAL. OR RATIFY OR REPEi\L PROPOSITION A Mayor Cox seconded the motion and it carried 4-0-1, with Deputy Mayor McCann abstaining. Items 21 A and 21 B were takcn out of order and addrcssed at this time. 21. COUNCILMEMBERS' COMMENTS Councilmcmber Bensoussan: A. CONSIDERATION OF GUIDING PRINCIPLES FOR A PROPOSED INDEPENDENT ADVISORY BOARD (PROP A ADVISORY COMMITTEE) Deputy Mayor McCann stated that he would be abstaining from voting on Items 2IA and B. He then left the dais. Councilmember Bensoussan gave an overview of the proposed Prop A Advisory Committce. Councilmember Ramirez stated he was hesitant to establish staggered, rotated terms and limits for the Advisory Committee members. He stated that hc would prefer an annual report, rather than a quarterly report. He also suggested having the committee make recommendations on revenues generated from Prop A, and leave General Fund responsibilities to the elected officials. Council member Bensoussan responded that the Committee would be advisory only and she clarified that the proposed quarterly reports to Council would be a review only. Theresa Acerro, Chula Vista resident, suggested fornlation of a Budget Ovcrsight Committce, fornled by ordinance, which would provide quarterly reports on the General Fund to the Council. Page 13 - Council/ROA Minutes March 24, 2009 //1..-/3 DRAFT 21 A. COUNCILMEMBERS' COMMENTS (Continued) Jose Prcciado, Chula Vista rcsident, reprcsenting South Bay Forum, spoke in support of the Guiding Principles for the Prop A Advisory Committee. He requestcd that once establishcd, the Advisory Committee would consider guidancc by rccognized organizations such as the San Diego Taxpayers Association. He suggested that the committee members bc comprised of local citizens or businesses that did not benefit dircctly from taxpayer dollars. Reiner Leal, Chula Vista rcsident, spoke in support of the Prop A Advisory Board, and questioned the process for detcnnining the terms of the Advisory Committee members. Patricia Aguilar, Chula Vista resident, representing Crossroads II, statcd that Crossroads II would not support the portion of the guidelines regarding committee make-up and appointments. She also suggested that any organization that received City funding be excluded in any decision- making for how Prop A funds would be spent. Ken Seabin Msemaji, Spring Valley residcnt. representing Labors Local 84, spokc in support of the proposed Prop A Advisory Committee with the exception of member term limits. Sandy Duncan, Chula Vista rcsident, spokc in support of the proposed Advisory Board. ACTION: Councilmcmber Bensoussan moved to approve thc guiding principles for a proposed Indcpendent Advisory Board (Prop A Advisory Committee). Councilmember Castaneda seconded the motion and it carried 4-0-1, with Deputy Mayor McCann abstaining. 21.B. CONSIDERATION OF ADOPTION OF THE FOLLOWING RESOLUTION: COUNCIL RESOLUTION NO. 2009-070 AND REDEVELOPMENT AGENCY RESOLUTION NO. 2009-2003, RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA URGING THE PORT DISTRICT TO RESUME NEGOTlA TIONS AND CONCLUDE THE EXCHANGE OF PORT LAND FOR PACIFICA COMPANIES-OWNED LAND AT THE CHULA VISTA BAY FRONT, AND URGING THE PORT TO MAKE NECESSARY REVISIONS TO COMPLETE THE CHULA VISTA BAYFRONT MASTER PLAN ENVIRONMENTAL IMPACT REPORT (EIR) AND TO THEN CERTIFY THE FINAL EIR Council/Agency Member Bensoussan gave an overview of the proposed resolution. The following members of the public spoke in support of the proposcd resolution: Tiffany Vinson, Chula Vista resident Chris Lewis, Bonita resident Bill Hall, Chula Vista residcnt Page 14 - City Council/RDA Minutes March 24, 2009 /,j~/t/ DRAFT 21 B. COUNC1LMEMBERS' COMMENTS (Continued) Cindy Gomper Graves, Poway resident, representing South County Economic Dcvelopment Council Thcresa Acerro, Chula Vista resident Laura Hunter, representing Environmental Hcalth Coalition Lisa Cohen, Chula Vista resident, representing Chula Vista Chambcr of Commcrce Dan McKirnan, San Diego resident, representing Environmental Health Coalition Allison Rolfe, San Diego resident, representing Pacifica Companies Jose Prcciado, Chula Vista residcnt, representing South Bay Forum Patricia Aguilar, Chula Vista resident, representing Crossroads II Greg Mattson, San Diego resident, representing Third Avenue Village Association Reiner Leal, Chula Vista resident Thc Council/Agency Members then discussed the need for collaborative efforts by all parties involved, full engagement with the Port District on the Bayfront planning process, and the need to move forward with the Environmentallmpaet Report. ACTION: Council/Agency Member Bensoussan moved to adopt the following Resolution No. 2009-070, heading read, text waived: COUNCIL RESOLUTION NO. 2009-070 AND REDEVELOPMENT AGENCY RESOLUTION NO. 2009-2003, RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA URGING THE PORT DISTRlCT TO RESUME NEGOTIATIONS AND CONCLUDE THE EXCHANGE OF PORT LAND FOR PACIFICA COMPANIES-OWNED LAND AT THE CHULA VISTA BAYFRONT, AND URGING THE PORT TO MAKE NECESSARY REVISIONS TO COMPLETE THE CHULA VISTA BA YFRONT MASTER PLAN ENVIRONMENTAL IMPACT REPORT (EIR) AND TO THEN CERTIFY THE FINAL EIR Council/Agency Member McCmID scconded the motion and it carned 5-0. OTHER BUSINESS 19. CITY MANAGER'S REPORTS City Managcr Sandoval reminded the Council of the April 2nd Council Workshop for a review of the City's Fiscal Health Plan. It was the consensus of thc Council to move the subject regarding the California Energy Commission to the Council Meeting of April 21,2009. 20. MA YOR'S REPORTS Mayor Cox announced her recent participation in the ribbon cutting for High Tcch High, the first building to be placed at the University Park Research Center. She announced the upcoming "Sunset Safari" fundraiser event at the Chula Vista Nature Center, Saturday, March 28, 2009. Page 15 - Council/RDA Minutes March 14. 1009 /1/,/5 DRAFT 20. MA YOR'S REPORTS (Continued) She recognized Finance Director Maria Kachadoorian, for the City's audit report regarding the Special Gas Tax Street Improvement Fund and Traffic Congestion Relief Fund that received an A+ from the State Controller. She also recognized Fire Logistics and Planning Chief Garcia and Fire Engineer Mehrer for their participation in the successful transition of Fire Dispatch services to the City of San Diego that resulted in a $740,000 savings to the City. She extended her well wishes to the 13 City employees who would be retiring from the City. She stated she would be adjourning the meeting in memory of the four Oakland Police Officers Sgts. Mark Dunakin, Erv Romans, Dan Sakai, and Officer John Hege who lost their lives in the line of duty. 21. COUNC1LMEMBERS' COMMENTS Deputy Mayor McCann spoke of his attendance at the Chula Vista Police Department's retirement event to recognize retiring police officers and personnel, and he thanked the retirees for their service. He stated that he attended the recent High Tech High grand opening and ribbon cutting event. He spoke about the Chula Vista Veteran's Park Brick Program, with all net proceeds benefiting the Friends of Chula Vista Parks and Recreation, and Chula Vista Veterans Home Support Foundation. Further information about the program may be accessed via the Citv's website. He invited all to attend the Chula Vista Nature Center "Sunset Safari" Fundraiser eve"nt on March 28th Councilmember Castaneda thanked the Building Industry Association for its $10,000 donation towards field and building improvements at the South Bay Little League baseball fields, stating that the improvements would inel ude restroom renovations, and repairs to the Little League ofJice and snack shack. He extended condolences to the Oakland Police Department for its loss of four police officers who died in the line of duty. Council member Ramirez spoke about recent changes by the Metropolitan Transit System (MTS) of bus routes in the Palomar/Bay Boulevard area, which had resulted in negative impacts to four non-profits in the area that served individuals utilizing public transport on this route. To that end, he stated that he had written a letter to MTS on the issue and was hopeful to receive support on the matter by former Councilmember Rindone, and consideration by MTS of reassessment of the affected bus routes. He extended his condolences to the families and the City of Oakland for the four Police OfJicers who lost their lives in the line of duty. Councilmember Bensoussan announced the upcoming Western Revitalization Committee meeting scheduled for April 14, 2009. She also extended condolences to the Oakland Police Department for its loss of four police officers who died in the line of duty. ADJOURNMENT At 10: 14 p.m., Mayor Cox adjourned the meeting in memory of Oakland Police Sergeants. Mark Dunakin, Erv Romans, Dan Sakai, and Officer John Hege, to a Council Workshop on April 2, 2009 at 4:00 p.m. in the Council Chambers, and thence to the Regular Meeting of April 7,2009. ~ Lorraine Bennett, CMC, Deputy City Clerk 7' Page 16 - City CouncillRDA Minutes March 24, 2009 /11-/6 " DRAFT MINUTES OF A WORKSHOP OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA April 2, 2009 4:00 P.M. A workshop of the City Council of the City ofChula Vista was called to order at 4:01 p,m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Council members Bensoussan (arrived at 4:02 p.m.), Castaneda, McCann, Ramirez, and Mayor Cox ABSENT: None ALSO PRESENT: City Manager Sandoval, City Attorney Miesfeld, City Clerk Norris, and Deputy City Clerk Bennett PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE PUBLIC COMMENTS Steve Molski, Chula Vista resident, spoke in opposition to the proposed Proposition A ballot measure, but stated he could support a one half of one percent sales tax increase for a two-year period. WORKSHOP 1. REVIEW OF CITY OF CHULA VISTA FISCAL HEALTH PLAN City Manager Sandoval introduced the item. Finance Direetor Kaehadoorian then gave an update on the current fiseal year deficit of $3.5 million, stating that staff would be eoming back to the Council with a third quarter report and suggestions on ways to mitigate the deficit. She presented an update on the status of the fiscal year 2009/2010 budget, with an anticipated $2 million deficit. City Manager Sandoval gave an overview of the Fiscal Health Plan that included expenditure reductions, revenues, economie development, and budget/fiseal reforms. Poliee Chief Emerson, Fire Chief Hanncman, and Library Director Browder then presented the impacts of the proposcd budgetary cuts on services and public safcty for police, fire and libraries. Development Services Director Halbert talked about staff rcductions in Public Works that included street sweeping, park maintenance, and the Urban Forcstry Program. Additionally, staff Icvels would also be reduced in the Advanced Planning division of the Devclopment Services Department. Page 1 - Council Meeting April 2. 2009 .//1-/ DRAFT WORKSHOP (Continued) City Manager Sandoval stated that staff would be undertaking a review of all City depm1ments to look at staf1ing efficiencies and effectiveness. To that end, Finance Director Kachadoorian stated that staff would be issuing a request for proposal in June for an operational review process. She thcn provided an overview of potential revenue, including fees for recreation programs, development processing, library services, public safety, local taxes and franchise fees, and City leases and contracts. Planning and Building Director Halbert presented the four major project areas wherc staff would bc focusing its efforts, namely, Western Chula Vista Revitalization, Chula Vista Bayfront, University Villages, and the Eastern Urban Centcr. City Manager Sandoval gave an update on the proposed budgct/fiscal reforn1 plan for the City that included citywidc budget analysts, zero-based budgct proccss, long-term financial strategy, fiscal impact analysis on items considered by the Council, reserve levels, and fiscal policies. Councilmembcr Castaneda commentcd that for thc City to live within its means, City services would be taken away, and stated that there is a necd to kcep the public inforn1ed, and to ensure that public safety was a priority. Deputy Mayor McCann suggested an analysis by staff of the City's fee structure to assist with moving forward with development. He stated that there is a need for collaborative efforts and constant staff contact bctween the City and Port on all matters concerning the bayfront. He also spoke of the importance of the research and development components for University project- related matters. Deputy Mayor McCann requested that staff return to Council with an item to mitigate the $3.5 million budget deficit. Mayor Cox asked staff to provide an overview of the impacts of projected enterprise zone designations on the budget, and a brief overview of proposed budget cuts necessary to achieve a balanced budget. City Manager Sandoval responded that enterprise zones provided financial benefits to businesses, attracted businesses to locate to thc City, thereby generating local income and sales tax. With respect to the budget deficit, he stated that a hard freeze was in place on any expenditures other than basic operations. Finance Director Kachadoorian added that in order to realize a balanced budget, staff would be looking at Redevelopment Agency loan repayments in the current fiscal year, an administrative freeze across all departments, Capital Improvement Project expenditures in the General Fund that could be held over to generate savings for the current year, approximatefy $1.9 million in the Equipment Replacement Fund budgeted for next year that could be borrowed to mitigate the current year budget shortfall, m1d potential worker's compensation savings. Councilmcmber Ramirez spoke of the need to move forward and to address sustainability issues. Page .2 - Council Meeting April 2, 2009 IS-.).. DRAFT ADJOURNMENT At 5: 16 p.m., Mayor Cox adjourned the meeting to the Regular Meeting of April 7, 2009 at 4:00 p.m. in the Council Chambers. ~~ /Lorraine Bennett, CMC, Deputy City Clerk Page 3 - Council Meeting April 2. 2009 ~OP1\O~ D i\~t>\~G ~t> ORDINANCE OF TIlE CITY O~'C.~~A VISTA A.\1E"NTIlliG CHAPTER 15.04, SECTION 15.D4.225, A.1\ilJ CHAPTER 18.16, SECTION 18.16.310, OF THE CHULA VISTA MUNICIPAL CODE ORDINANCE NO. WHEREAS, the Chula Vista Mlli'1icipaI Code requires L':1at the Ciiy reiain sureiy bonds associated with land development projects until all work has been completed and a notice of completion is filed; and \VHEREAS, the recent dov.n turn in economic activiiy has created a climate where builders are trying to lower costs to remain competitive; and WHEREAS, several builders have requested that the City authorize the partial reduction in the bond amounts to correspond with t':1e estimated costs of remaining improvement work; and \VHEREAS, many of the City's major developments in the eastern territories require very large bonds securing millions of dollars of public improvements, grading and landscaping; and WHEREAS, the retention of the full bond amount costs developers additional bond premiums for work that has already been completed; and WHEREAS, the added costs of maintaining bonds at the full amount has contributed to several projects being placed on hold. NOW, THEREFORE, that the Ciiy Council of the Ciiy Of Chula Vista does, hereby, ordain as follows: SECTION 1. That Chula Vista Municipal Code Chapter 15.04, Section 15.04.225 be. amended to read as follows: 15.04.225 Release of bonds/security. A. Landscaping, Irrigation, Grading, and Drainage Bonds and other security for these purposes shall be released upon the latter of the following: 1. 35 days after filing a "notice of completion" with the couniy recorder (recorded copy to city engineer) for improvements accepted by this city. 2. The acceptance of completed Form PW-E-106 ("request forrelease of bonds") submitted by the permittee. 2-1 B. Notwithstanding the foregoing Section 15.04.225(A), the Director of Public Works may approve the partial release of the faithful performance security after the completion of all improvements per approved plans, as determined by the City Inspector, in his sole discretion, in an amOlmt not to exceed seventy-five percent of the original security required pursuantto Chapter 15, Section 15.04 of the CVMC, provided the remaining balance of the security for faithful performance equals or exceeds the estimated cost, as determined by the Director of Public Works, in his sole discretion, to complete the outstanding work. C. Prior to the release of security for faithful performance for landscaping bonds, a maintenance bond in the amount of fifteen percent of the original security shall be provided to cover the one-year maintenance period. Such bond shall not be released until the end of the maintenance period. In lieu of a providing a maintenance bond, the faithful performance security may be reduced to .fifteen percent of the original security amount An addendum to the bond in the form ofarider or equivalent document containing language requiring the maintenance of improvements as an obligation to be fulfilled under the bond shall be required and provided to the City . SECTION II. That Chula Vista Municipal Code Chapter 18.16, Section 18. ]6.310, be amended to read as follows: 18.16.310 Security arrangements - Release of surety. A. Improvement security given for faithful performance of the agreement shall be released upon the performance of the act secured or [mal completion and acceptance of the required work. Notwithstanding the foregoing, the Director of Public Works may approve the partial release of the faithful performance security after the completion of all improvements in accordance with approved plans, to the satisfaction of the City Inspector in an amount not to exceed seventy-five percent of the dollar amount of the original security for faithful performance, provided the remaining balance of such security for faithful performance equals or exceeds the estimated cost, as determined by the Director of Public Works, in his sole discretion, to complete the outstanding work required under the Subdivision Improvement Agreement and/or any Supplemental Subdivision Improvement Agreement. B. The 50 percent labor and material bond shall be retained to secure payment to the contractor, his subcontractors and to persons renting equipment or furnishing labor or SECTION III. EFFECTIVE DATE. Richard A. Hopkins Director of Public Warks This ordinance ",ill take effect and be in force thirty days after final passa e. Presented by 2-3 ",NO f>J)OP1\ON ORDINANCE NO. SECOND REf>.O\NG ORDINA.i\fCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING MITIGATED NEGATIVE DECLARUION AND MITIGATION MONITORING ANTI REPORTING PROGRAM IS-09-09, At\1ENDING ZONING MAP OR MAPS ESTABLISHED BY CHULA VISTA MUNICIPAL CODE SECTION 19.18.010 TO ESTABLISH THE PRECISE PLAN MODIFYING DISTRICT AND ADOPT PRECISE PLA.i\f STA.1\:TIARDS FOR EXCEPTIONS TO PARKING AND SIGN ST Ai'mARDS PERMITTED IN CURRENTL Y ZONED C-C, CENTRAL COMMERCIAL DESIGNATION, FOR 9.9 ACRES AT THE NORTHWEST CORL"IER OF NORTH FOURTH A VENuE AND "c' STREET I. RECITALS A. Project Site WHEREAS, the area of land that is the subject matter of this Ordinance consists of approximately 9.9 acres and is located at the northwest corner of North Fourth Avenue and "c" Street ("Project Site"). The Project Site is commonly known as Target, and it is diagrammatically represented in Exhibit "A", attached hereto and incorporated herein by this reference; and B. Project; Application for Discretionary Approval WHEREAS, a duly verified application was filed with the Development Services Department on November 12, 2008 by Target, Inc. ("Applicant"), requesting approval of a zoning modification application to establish the Precise Plan Modifying District and adopt Precise Plan Standards for the Project Site ("Project"). It is currently zoned CC, Central Commercial; and C. Prior Approvals WHEREAS, the Design Review Committee held an advertised public hearing on June I, 2009, at 4:30 p.m. in the City Council Chambers at 276 Fourth Avenue and, after hearing the staff presentation and public testimony, voted 3-0-2-0 to approve DRC 09-15 contingent.upon approval of this Ordinance and the Ordinance entering into effect; and D.. Planning Commission Record on Application WHEREAS, the Planning Commission held an advertised public hearing on the Project on June 24, 2009, and after hearing the staff presentation and public testimony, voted 5-0-0-2 to recommend that the City Council approve the Project, in accordance with the findings listed below; and 3-1 Ordinance Page 2 WHEREAS, the Development Services Department set the time and place for hearing on said Project, and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City, and its mailing to property owners within 500 ft. of the exterior boundaries of the Project, at least ten (10) days prior to the hearing; and WHEREAS, the proceedings and all evidence introduced before the Planning Commission at the public hearing on the Project held on June 24, 2009, and the minutes and Resolution resulting there from, are incorporated into the record of these proceedings; and E. City Council Record on Application WHEREAS, the City Clerk set the time and place for the hearing on the Project ~applications and notices of the hearing, together with its purposes given by its publication in a newspaper of general circulation in the City, and its mailing to property owners within 500 feet of the exterior boundaries of the Project Site at least ten (10) days prior to the hearing; and WHEREAS, the City Council held an advertised public hearing on the Project on July 14, 2009 at 6;00 p.m. in the City Council Chambers at 276 Fourth Avenue; and WHEREAS, the City Council considered Mitigated Negative Declaration IS-09-009 together with any comments received during the public re\iew process; and WHEREAS, the Mitigated Negative Declaration and other related materials are located in the Development Services Department and maintained by the custodian of said documents, who is the Director of Development Services; and WHEREAS, all hearings referred to herein, the documents, and related materials constitute the record of proceedings upon which this adoption of the Mitigated Negative Declaration is based; and WHEREAS, after hearing staffs presentation and public testimony, and receiving the recommendation of the Planning Commission, the City Council voted _-_-_ to adopt the Mitigated Negative Declaration, (18-09-009) and approve the Project, in accordance with the findings listed below. NOW, TIIEREFORE the City Council of the City of Chula Vista does hereby finds, determines and ordains as follows; A. Certification of Compliance with California Environmental Quality Act (CEQA) The Environmental Review Coordinator has reviewed the proposed Project for compliance ",,'lth the California Environmental Quality Act and has conducted an Initial Srudy, 18-09-009, in accordance with the California Environmental Quality Act. Based upon the results of the Initial Study, the Environmental Review Coordinator has determined that the project could result in significant impacts on the environment. However, revisions to the Project made by or agreed to by the applicant would avoid the effects or mitigate the effects to a point where clearly no significant effects would occur; therefore, the Environmental Review Coordinator has prepared a Mitigated Negative Declaration, IS-09-009 and associated Mitigation Monitoring and Reporting Program. 3-2. Ordinance Page 3 B. Independent Judgment of the City Council The City Council finds that on the basis of the whole record before it, including the initial study and any comments received, the Project could result in significant effects on the environment. However, revisions to the Project made by or agreed to by the applicant would avoid the effects or mitigate the effects to a point where clearly no significant effects would occur; and The City Council has exercised their independent review and judgment and concurs with the Planning Commission, and Environmental Review Coordinator's determination that Mitigated Negative Declaration (IS-09-009), in the form presented, has been prepared in accordance with requirements of the California Environmental Quality Act (CEQA), the State CEQA Guidelines and the Environmental Review Procedures of the City of Chula Vista and adopts the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program. (IS-09-009). C. The zoning modification of the Project Site is consistent with the City of Chula Vista General Plan, as approved on December 13, 2005, and public necessity, convenience, the general welfare and good zoning practice support the amendment to the Municipal Code. D. The City Of Chula Vista Zoning Map established by Section 19.18.010 of the Chula Vista Municipal Code is amended to modify the zoning of the Project Site as depicted in Exhibit "A" from the CC (Central Commercial) Zone to the CC-P, Central Commercial Zone with Precise Plan Modifying District, including Property Development Standards as represented in Exhibit B. . FINDINGS FOR APPROVAL OF REZONE AND PRECISE PLAc"J, INCLUDING PRECISE PLAN STANDARDS. Pursuant to Section 19.56.041 of the Chula Vista Municipal Code, the City Council of the City of Chula Vista finds that the following circumstances are evident, permitting the approval of and establishment of the "P" Precise Plan Modifying District on the Project Site: 1. That such use "ill not under the circumstances of the particular case be detrimental to the health, safety or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity: Establishing the Precise Plan Modifying District and Precise Plan Standards to guide the redevelopment of the project site furthers the goals and policies of the General Plan regarding "Gateway" locations by helping achieve the contemporary project design of both the building and site layout. The negligible effects of the requested reduction in parking spaces has been substantiated by a detailed Parking Analysis conducted by Target Corporation and additional on-site analysis for this specific location. Because the site is located within a "Primary Gateway" of the City, the Design Review Board (DRB) requested that the applicant provide both the City name and City logo on the northernmost monument sign, even though this will require a height above the maximum eight feet allowed per the CVMC. This monument sign will also mark a newly relocated driveway entrance aimed at reducing congestion off of Brisbane Street to the north. Thus, establishing the precise plan modifying district 3-3 Ordinance Page 4 will not be detrimental to, but help promote the health, safety or general welfare of persons residing and/or working in the vicinity. 2. That such pla.."1 satisfies the following principles for amendment of the "P" modifying district as set forth in CVMC 19.56.041: The subject property, or the neighborhood or the area in which the property is located, is unique by virtue of topography, geological characteristics, access, configuration, traffic circulation or some social or historic situation requiring special handling of the development on a precise plan basis. The site is unique in that the Chula Vista General Plan identifies the project site as one of only five existing "Primary Gateways" into northwest Chula Vista. In "Gateway" locations, the General Plan places an emphasis on enhanced features and high quality architecture design. The proposed redevelopment of the site includes upgrades and enhancements to building design, circulation, and landscaping - all of which will promote the goals and polices of the General Plan regarding Primary Gateway locations. The proposed requested reduction in parking will reduce the area devoted to asphalt and allow for additional parking lot landscaping. Specific General Plan polices which will be achieved by the proposed redevelopment include the following: . Policy LUT 8.8 "encourage the upgrading, beautification, and revitalization of existing strip commercial areas and shopping center." The existing older co=ercial center will be razed, the site re-graded, and an upgraded modem commercial center designed with principles of sustainability will be constructed; . Policy LUT 9.1 "create consistent entry features for City entry-;.,ays and gateways so people recognize that they are entering Chula Vista ". The requested precise plan allowance for an additional monument sign, which exceeds the height limit specified by the CVMC, will allow both the City name and logo to be added to the sign face, thus providing a "Gateway" entry into the City. This was required by the Design Review Board; . Policy LUT 11.2 "promote and place high priority on quality architecture, landscape, and site design to enhance the image of Chula .vista, and create a. vital and attractive environment for businesses, residents and visitors ". The project will feature a contemporary design "ith a series of features including vertical and horizontal plane articulations and variation in building materials, which result in a high- quality design. The proposed enhanced, modernized design has been described by the City's Design Review Board as. an example of "excellent design." 3-4 Ordinance Page 5 A unique circulation pattern presently exists on the site that necessitates special treatment through the establishment of a precise plan designation. The site is bordered on the north by Brisbane Street, which demarcates the border between Chula Vista and National City. This is a heavily used roadway "ith multiple vehicle conflict points that serves as a primary driveway to the exiting Target store. In order to re-direct vehicles off of Brisbane Street and improve the on-site circulation pattern, a primary driveway for the site will be constructed near Brisbane Street that will be marked by a large monument sign. Regulatory flexibility with regard to parking and signage is needed in order to establish an on-site circulation pattern that is both efficient and safe. 3. That any exceptions granted, which may deviate from the underlying zorung requirements, shall be warranted only when necessary to meet the purpose and application of the P precise plan modifying district. The requested Rezone is to add a Precise Plan Modifying District to the existing zoning designation. This, in turn, will allow a precise plan to be approved that is site specific, allov.ing for the establishment of a parking standard that is different from the existing standard of 5 spaces per 1,000 square-foot ratio required by the CVMe. The reduction of 74 spaces from the 608 spaces required pursuant to the CVMC will allow for a reduction in amount of impervious area otherwise necessary to accommodate the 608 spaces, storm water filtration, and provide for addition"l landscape area. This parking reduction will further the goals and policies of the General Plan regarding "Gateway" locations by helping achieve the contemporary project design of both the building and site layout. As designed, the project will full comply with NPDES requirements. Public transit is also available with an existing bus stop along the North Fourth Avenue street frontage. Buses generally run every 15 minutes along North F ourth Avenue v.ith an existing bus stop along the street frontage. Parking reduction is also offset by this availability of public transit. The existing Target facility contains 474 parking spaces, which, based upon the existing size of the building, results in an existing parking ratio of 4 spaces per 1,000 square-feet. Taking into account the difference in building size, this ratio is sirnilar to the applicant's proposed parking ratio of 3.87 spaces per 1,000 square-feet. Both of these ratios are less than that currently required by the Chula Vista Municipal Code (CVMC). The parking standard required by the CVMC is a generic requirement for retail/commercial establishments and is not necessarily representative of the unique characteristics of an individual retail chain. Different retailers have different shopper characteristics. The merchandising and demographics of one store may yield frequent customer visits with lower sales per visit. The same size building operated by a different retailer may see fewer total customers but have higher sales per visit. The proposed reduction in parking is supponed by a Parking Assessment study titled "Updated Parking Assessment for Target Store Chula Vista (North), California" 3-5 Ordinance Page 6 prepared for the project by KHA on January 22, 2009. This analysis provides a refinement of the generic parking ratio required by the CVMC and is based largely upon a national parking study prepared by Target. This study assessed actual parking usage for 80 Target stores at locations throughout the country, including stores in California The study concluded that the parking requirement for a prototypical Target store, like the one being proposed for Chula Vista, requires roughly 505 parking spaces, or a ratio of3.6 spaces per 1,000 square-feet. In order to further validate the proposed parking ratio, an on-site parking count was conducted by KHA on December 20, 2008, at the existing Target Store on-site. This date was selected since it was the last weekend before Christmas and typically the busiest shopping day of the year. The peak parking demand was 258 occupied parking spaces. This generates a ratio of 2.46 spaces per 1,000 square-feet. The requested reduction in parking will allow parking to be more consistent with actual demand level. The applicant proposes a total of three freestanding signs (one pylonlblade and two ground-mounted) for this "Gateway" location, which includes exceeds by one the number of signs allowed by the CYMC. All three of the proposed signs will be placed along the North Fourth Avenue frontage. The two monument signs will be located at the northern and southern edge of the frontage (at the corner of North Fourth Avenue and "C" Street), with the pylon sign to be located in-between, near the location of the existing pylon sign along North Fourth Avenue, at the main driveway. Because all three signs will be placed along a single frontage, the distance separating each sign will be less than the 500 foot distance required per the CVMC. The proposed monument signs will be placed at key locations both to incorporate "Gateway" signage as well as mark the main driveway entrances to the site. The northernmost monument sign will be located at the site's north driveway, which is one of the primary entrances into the site. This driveway has been situated to attract primary vehicular traffic and relieve congestion off of Brisbane Street. The northern sign will incorporate both the City name and 10 go onto the sign face. With the exception of the proposed northernmost monument sign, the proposed sign heights and sign areas will be within the maximum allowed by the CYMe. The northern monument sign would be 12 feet high, which exceeds the 8-foot maximum allowable. In addition, the area of the northern sign would be approximately 70 sq. ft., which exceeds the 50 sq. ft. maximum. The primary reason for this additional height and sign area is to allow the applicant the necessary space to include both the City name and City logo. It should be noted that at the DRB hearing of June 1,2009, the applicant proposed a sign containing only the City name, and a sign height of 10 feet. The DRB conditioned the project to allow additional flexibility to the sign height in order for it also to also the City logo. The request for height and sign area exceptions would facilitate implementation of General Plan Policy LUT 9.1 which is to "create consistent entry features for City entryways and gateways so people recognize that they are entering Chula Vista." 3-6 Ordinance Page 7 4. That the approval of this plan will conform to the General Plan and the adopted policies of the City Of Chula Vista. The increased flexibility inherent in the Precise Plan Standards will guide the development or redevelopment of the project site '.'.-ill provide the project designer with sufficient flexibility to create a more efficient site design, suitable for an urbanized area and enhanced storm water treatment. This is consistent with.the goals and policies of the adopted General Plan. F. The Precise Plan and Precise Standards as depicted in Exhibits B are adopted and are supported by the required findings (CVMC Section 19.56.041), as outlined above. II. APPROVAL OF ZO!\'E MODIFICATION The City Council of the City of Chula Vista does hereby approve the rezone to establish the Precise Plan Modifying District and adopts Precise Plan Standards for the Project Site as represented in Exhibit "B". III. EFFECTIVE DATE This ordinance shall take effect and be in full forcc on the thirticth day from and after its adoption. Gary Halbert, PE, A1CP Director of Development Services/ Deputy City Manager Presented by Exhibits: Exhibit A: Zone Modification Map Exhibit B: Precise Plan Standards 3-7 ~ ~\~ ~lt _ EXHIBIT A 40 N. Fourth Ave; Proposed Zone "CCP orro< mULA VlSfA 3-8 EXHBIT "B" PRECISE PLAc" GUIDELINES Parkin!! ReQuired SlBndard= 514 Compact = 20 534 Freestandin!! Si!!ll3!!e allowed Number of signs: A total of3 freestanding signs consisting of 1 pylon and 2 monument signs Maximum height of pylon sign: 30 feet Maximum height of monument signs: 8 feet (southern) 12 feet (north em) Maximum sign area of monument sims 70 square feet (nO!thern) 50 square feet (southern) Maximum distance betwee:l pylon and monument sign 265 feet 3-9 CITY COUNCIL AGENDA STATEMENT ~ 1ft.. CITY OF 1\> - CHULA VISTA JULY 21, 2009, Item~ ITEM TITLE: AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDrNG CHAPTER 20.04 OF THE CHULA VISTA MUNICIPAL CODE BY REVISING SECTIONS 20.04.010, 20.04.025 AND 20.04.030, A.ND ADDrNG SECTION 20.04.040 C~) DIRECTOR OF CONSERVATION & ENVIRONMENTAL ~ SERVICES :t!:c CITY MANAGER ASSIST A.NT CITY NAGER 5; SUBMITTED BY: REVIKWED BY: SUMMARY As part of the Climate Protection Measures' Implementation Plans, which were approved by City Council in July 2008, staff was directed to amend the municipal code to require new residential units to be pre-wired and pre-plumbed for solar photovoltaic and solar hot water panels, respectively. These requirements were designed to promote and facilitate the future, cost-effective installation of renewable energy systems to lower greenhouse gas emissions, reduce local energy demand and provide long-term cost savings in the community. The proposed amendments would establish the policy framework for these new requirements in the Chula Vista Municipal Code's "Energy Conservation" section (Chapter 20) and align the policy with the technical requirements previously adopted by City Council in January 2009 as part of Chapter 15 Buildings and Construction. The proposed code reVIsions also provide clarification to the Chapter's purpose and terminology. 4/5THS VOTE: YES D NO 0 EI'YIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the project qualifies for a Class 8 categorical exemption pursuant to Section 15308 [Actions by Regulatory Agencies for Protection of the Environment] of the State CEQA Guidelines. Thus, no further environmental review is necessary. 4-1 JUL Y 21,2009, ItemL Page 2 of 3 RECOMME]\\'UATION Staff recommends that City Council adopt the ordinance. BOARDS/COMMISSION RECOMMEl'.'DATION The Resource Conservation Commission unanimously recommended approval of the agenda item at their July 13,2009 meeting. DISCUSSION In 2007, the City Council directed staff to convene a Climate Change Working Group (CCWG) to develop recommendations to reduce the community's greenhouse gas or "carbon" emissions. The CCWG - comprised of 14 residential, business and community- group representatives - evaluated over 90 possible carbon-reducing actions, conducted more than 30 publicly-noticed meetings, workshops and presentations, and ultimately recommended seven measures to the City Council. On July 10, 2008 the Council approved the implementation plans for the seven measures which focused on lowering energy and water consumption, installing renewable energy systems, promoting alternative fuel vehicles and designing pedestrian and transit-friendly communities. Measure #5 directs staff to update the existing standards that require all new residential units to be pre-plumbed for solar hot water systems and to develop a new standard requiring solar photovoltaic pre-wiring for new residences. The two requirements were designed to encourage the future installation of renewable energy systems in the community. For new residences that are pre-wired and pre-plumbed, property owners who choose to invest in a system would not need to perform major retrofit work as part of the installation resulting in lower labor costs, faster completion and a more streamlined process. The solar energy systems, which typically have a warranty period of 25 years and a significantly longer anticipated life span, would provide the property owners with reliable, no-cost energy and are projected to have a payback period between 8-12 years. At a community level, the expansion of renewable energy systems lowers the local demand for energy generation and transmission. Furthermore, solar and other renewable energy resources (such as wind turbines and ground-source heat pumps) contribute to reaching the City's greenhouse gas reduction targets and California's renewable energy goals. The systems also help spur demand for local "green" contractors, retailers and manufacturers in Chula Vista contributing to both economic and environmental sustainability. The proposed amendments would establish the policy framework for these new requirements in the Chula Vista Municipal Code's "Energy Conservation" section (Chapter 20). The amendment would also align the policy with the technical requirements which were previously adopted by City Council on January 13, 2009 (Ordinances #3121 and #3122) and added to CVMC Chapters 15.24.065 and 15.28.015. Staff is also proposing to provide clarification to portions of the Chapter's general purpose and terminology. The clarification assists staff and the public in interpreting the policy guidance and regulations. 4-2 JULY 21, 2009, ltem-L Page 3 of 3 DECISION MAKER CONFLICT Staff has determined that the recommendations reqUITIng Council action are not site specific and consequently the 500-foot rule found in California Code of Regulations section I 8704.2(a)(1) is not applicable to this decision. CURRENT YEAR FISCAL IMPACT There would be no new impact to the General Fund due to ordinance adoption. The City Council has previously approved the pre-plumbing and pre-wiring requirements, and the current modifications are required to align the applicable municipal code sections. ONGOING FISCAL IMPACT There would be no new, ongoing impact to the General Fund due to ordinance adoption. If there is a widespread transition to solar in the community causing significantly less grid-delivered electricity and natural gas consumption, the revenue from the City's SDG&E Franchise Fee and Utility User's Tax, which are based on energy delivery and consumption amounts respectively, will have a corresponding reduction. Staff does not anticipate this impact to be significant over the next decade due to regulatory hurdles to expanding small-scale residential and commercial solar and other distributed generation. To address potential long-term issues, the City could raise the applicable rates or work with other jurisdictions throughout the State to shift these revenue sources to the distribution and transmission side of the invoice (as opposed to the current commodity side). A TT ACHMENTS None Prepared by: Brendan Reed. Environmental Resource lvJanager, Conservation & Environmental Services 4-3 ORDINAi'\)CE NO. Ai'\) ORDINAi'\)CE OF THE CITY OF CHULA VISTA AlYlENDING CHAPTER 20.04 OF THE CHULA VISTA 1vruNICIPAL CODE BY REVISING SECTIONS 20.04.010, 20.04.025, AND 20.04.030 AND ADDING SECTION 20.04.040 The City Council of the City ofChula Vista does ordain as follows: SECTION 1. That Chapter 20.04 of the Chula Vista Municipal Code is hereby amended to read as follows: Title 20 ENERGY CONSERVATION Chapters: 20.04 Energy Conservation Regulations 20.08 Municipal Solar Utility Chapter 20.04 ENERGY CONSERVATION REGULATIONS Sections: 20.04.010 Intent and purpose of provisions. 20.04.020 Conflict with other provisions. 20.04025 Definitions. 20.04.030 Solar water heater preplumbing. 20.04.040 Solar photovoltaic pre-wiring. 20.04.050 Business energy assessments. CROSS REFERENCE: Business Licenses Generally, see Ch. 5.02 CVMe. Electrical Code and Regulations, see Ch. 15.24 CVMC. Plumbing Code, see Ch. 15.28 CVMe. 20.04.010 Intent and purpose of provisions. The conservation of energy and natural resources including water, air quality and open space has been determined to be a legitimate and worthy function of the City. The provisions of this chapter are intended to decrease dependence upon fossil fuels and other nonrenewable energy sources that contribute to the City's greenhouse gas emissions by encouraging and, in some instances, requiring best management practices including the installation of devices, structures or materials for the efficient generation, distribution and use of energy and water on certain structures within the City. (Ord. 3119 S 1, 2008; Ord. 1973 S 1, 1982). 4-4 20.04.020 Conflict with other provisions. Portions of this chapter which are in conflict with other sections of the municipal code are intended to be exceptions to those sections and shall take precedence over such sections. (Ord. 3119 S 1, 2008; Ord. 1973 S 1, 1982). 20.04.025 Definitions. The following words and phrases, when used in this chapter, shall be construed as defined in this section: A. "Assessment" means a written evaluation of a facility's energy and water use from building systems, appliances and office equipment. B. "Energy and water conservation" means reduction of energy and water use achieved by relying on changes to behavior. C. "Energy and water efficiency" means activities or programs that reduce energy and water use by upgrading to more efficient equipment or controls. D. "Greenhouse gas emission" means the direct or indirect emission of one or more of the gases identified by the Intergovernmental Panel on Climate Change and/or the State of California. E. "Nonrenewable" means an energy resource such as, but not limited to, fossil fuels that is not replaced or is replaced only very slowly by natural processes. F. "Renewable" means an energy resource such as, but not limited to, wind and solar that is replaced by natural resources. G. "Solar photovoltaic" means a method of capturing energy from sunlight and converting it to electricity. H. "Solar water heater" means a method of heating domestic water by allowing solar energy collection devices to transfer solar heat energy to water. (Ord. 3119 S 1, 2008). 20.04.030 Solar water heater preplumbing. All new residential units shall include at least the plumbing specifically designed to encourage the later installation of a system which utilizes solar energy as the primary means of heating domestic potable water. The purpose of this section is to facilitate the safe, cost-effective installation of residential solar water heating systems, while removing structural and regulatory barriers. No building permit shall be issued unless the plumbing required pursuant to this section and the Chula Vista Solar Water Heater Pre-Plumbing Installation Requirements are incorporated into the approved building plans. Exception: The provisions of this section can be modified or waived when it can be satisfactorily demonstrated in writing to the City Manager, or designee, that potential pre-existing constraints affecting the use of solar hot water heating cannot be reasonably overcome. (Ord. 3119 S 1, 2008; Ord. 1973 S 1, 1982). 20.04.040 Solar photovoltaic pre-wiring. All new residential units shall include at least the electrical conduit specifically designed to encourage the later installation of a system that utilizes solar photovoltaic or other renewable energy resource as a means of generating electricity. The purpose of this section is to facilitate the safe, cost-effective 4-5 installation of renewable energy systems as residents' primary electricity source, while removing structural and regulatory barriers. No building permit shall be issued unless the requirements of this section and the Chula Vista Photovoltaic Pre-Wiring Installation Requirements are incorporated into the approved building plans. Exception: The provisions of this section can be modified or waived when it can be satisfactorily demonstrated in writing to the City Manager, or designee, that potential pre-existing constraints affecting the use of solar photovoltaic or other renewable energy systems cannot be reasonably overcome. 20.04.050 Business energy assessments. All commercial and industrial businesses in the City of Chula Vista are encouraged to participate in a free energy assessment of their facilities to help them identify energy efficiency and conservation opportunities that potentially reduce participants' recurring energy costs and corresponding greenhouse gas emissions. Assessments are recommended when a new business license is issued or once every three years for an existing license. Participating businesses are encouraged to cooperate with City staff or their delegate(s) by providing: (1) a date and time for the assessment convenient for the business, (2) access to their facilities for the assessment during their regular business hours, (3) authorization to review their historical energy usage and (4) a signature and title of a facility manager on a completed assessment form acknowledging that the business has received a completed assessment and relevant information about voluntary energy efficiency improvement opportunities. The owner of a multi- tenant commercial building or their designee (property manager) may, at their discretion, authorize a whole building assessment replacing the need for individual tenant assessments. A. Assessment Notification Process. The City may send a notice to each business at least once every three years in conjunction with the City's annual business license renewal mailer providing information that facilitates the scheduling of an assessment at the business's convenience. A business may also receive a business assessment notice whenever a new license is required, such as the establishment of a new business or transfer of ownership for an existing business. B. Assessment Deliverables. The assessment findings, provided to the participating business on a form established by the City Manager in conjunction with the local utility and business representatives, may include a chart of their historical energy consumption, an estimate of potential energy and cost savings from identified energy conservation and efficiency opportunities and an estimate of the corresponding greenhouse gas emission reductions. The assessment may also review water conservation, alternative transportation and other practices which the business could implement and/or promote to its employees and customers and an estimate of the resulting greenhouse gas emission reductions. The City may offer participants assistance with completing the applicable rebate, incentive and/or on-bill financing forms to facilitate the adoption of the identified energy efficiency improvements and help reduce the business's time and cost of 4-6 implementing the voluntary measures. The City may also provide contact information for the local utility's program staff that may further assist the business in reducing its energy costs. C. Exclusions. Because energy efficiency is commonly related to a facility's age and design, a voluntary energy assessment is not recommended for new businesses occupying a commercial space which have completed one of the following: (1) been permitted by the City Building Division within the last three years for a remodel or new construction to meet the most current City Title 24 and above standards, (2) has been certified through a California Energy Commission-approved (or other applicable state agency) green building program, or (3) has already received an assessment within the last three years. In addition, assessments are not necessary for home offices, mobile businesses and other business entities that do not have a utility gas or electric meter on a commercial rate schedule. (Ord. 3119 ~ 1, 2008). SECTION II. This ordinance shall take effect and be in full force thirty days from its adoption. Presented by Approved as to form by Ccr/~ Bart C. Miesfeld p~I'.'" '1 City Attorney Michael Meacham Director of Conservation & Environmental Services 4-7 ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA N\1ENDING CHAPTER 20.04 OF THE CHULA VISTA MUNICIPAL CODE BY REVISING SECTIONS 20.04.010, 20.04.025, AND 20.04.030 AND ADDING SECTION 20.04.040 The City Council of the City ofChula Vista does ordain as follows: SECTION I. That Chapter 20.04 of the Chula Vista Municipal Code is hereby amended to read as follows: Title 20 ENERGY CONSERVATION Chapters: 20.04 Energy Conservation Regulations 20.08 Municipal Solar Utility Chapter 20.04 ENERGY CONSERVATION REGULATIONS Sections: 20.04.010 Intent and purpose of provisions. 20.04.020 Conflict with other provisions. 20.04.025 Definitions. 20.04.030 Solar water heater preplumbing. 20.04.040 Solar photovoltaic pre-wirinq. 20.04.050 Business energy assessments. CROSS REFERENCE: Business Licenses Generallv. see Ch. 5.02 CVMe. Electrical Code and Regulations. see Ch. 15.24 CVMe. Plumbing Code. see Ch. 15.28 CVMC. 20.04.010 Intent and purpose of provisions. The conservation of energy and natural resources includinq water, air quality and open space has been determined to be a legitimate and worthy function of the City. The provisions of this chapter are intended to decrease dependence upon fossil fuels and other nonrenewable energy sources that contribute to the Citv's qreenhouse qas emissions by encouraging and, in some instances, requiring best manaqement practices includinq the installation of devices, structures or materials for the efficient qeneration. distribution and use conccri3tion of energy and water on certain structures within the City. (Ord. 3119 S 1,2008; Ord. 1973 S 1,1982). 4-8 20.04.020 Conflict with other provisions. Portions of this chapter which are in conflict with other sections of the municipal code are intended to be exceptions to those sections and shall take precedence over such sections. (Ord. 3119 S 1, 2008; Ord. 1973 S 1, 1982). 20.04.025 Definitions. The following words and phrases, when used in this chapter, shall be construed as defined in this section: A. "Assessment" means a written evaluation of a facility's energy and water use from building systems, appliances and office equipment. B. "Energy and water conservation" means reduction of energy and water use achieved by relying on changes to behavior. C. "Energy and water efficiency" means activities or programs that reduce energy and water use by upgrading to more efficient equipment or controls. D. "Greenhouse gas emission" means the direct or indirect emission of one or more of the s*-gases identified in the Kyoto Protocol by the Interqovernmental Panel on Climate Chanqe and/or the State of California. E. "Nonrenewable" means an energy resource such as, but not limited to, fossil fuels that is not replaced or is replaced only very slowly by natural processes. F. "Renewable" means an enerqy resource such as, but not limited to, wind and solar that is replaced by natural resources. G. "Solar photovoltaic" means a method of capturinq enerqy from sunliqht and convertinG it to electricity. tLF-, "Solar water heater" means a method of heatinG dovice that hoats domestic water by allowing solar energy collectors collection devices to transfer solar heat energy to water. (Ord. 3119 S 1, 2008). 20.04.030 Solar water heater preplumbing. All new residential units shall include at least the plumbing specifically designed to encouraqe allow the later installation of a system which utilizes solar energy as the primary means of heating domestic potable water. The purpose of this section is to facilitate the safe, cost-effective installation of residential solar water heatinq systems, while removinG structural and requlatory barriers. No building permit shall be issued unless the plumbing required pursuant to this section and the Chula Vista Solar Water Heater Pre-Plumbinq Installation Requirements are incorporated is indicated on into the approved building plans. Preplumbing shall extend through the roof when the slope of the roof is lese than four inohes and 12 inohec and when the roef covering ic of clLly or conorete tile. Preplumbing pipes for domestic solLlr hot water heating shall be insulLlted. This ceotion shall apply only to those residenti::ll dwelling units for which ::l building permit was applied fnr ::lfter tho effective d::lte of the ordinance codified in this ch::lpter. Exception: The provisions of this section ch::lpter can be modified or waived when it can be satisfactorily demonstrated in writinq to the Building Officbl City Manager, or designee, that potential pre-existing constraints affecting the use of solar hot water heating cannot be reasonably overcome tho solar preplumbing is 4-9 impr3ctic31 duo to sh3ding, building oriont3tion, construction constr3intc or configur3tion of tho p3rcel. (Ord. 3119 ~ 1,2008; Ord. 1973 ~ 1, 1982). 20.04.040 Solar photovoltaic pre-wiring. All new residential units shall include at least the electrical conduit specifically desiqned to encouraqe the later installation of a system that utilizes solar photoyoltaic or other renewable enerqy resource as a means of qeneratinq electricity. The purpose of this section is to facilitate the safe, cost-effective installation of renewable enerqy systems as residents' primary electricity source, while removinq structural and requlatory barriers. No buildinq permit shall be issued unless the requirements of this section and the Chula Vista Photovoltaic Pre-Wirinq Installation Requirements are incorporated into the approved buildinq plans. Exception: The provisions of this section can be modified or waived when it can be satisfactorily demonstrated in writinq to the City Manaqer, or desiqnee, that potential pre-existinq constraints affectinq the use of solar photovoltaic or other renewable enerqy systems cannot be reasonably overcome. 20.04.050 Business energy assessments. All commercial and industrial businesses in the City of Chula Vista are encouraged to participate in a free energy assessment of their facilities to help them identify energy efficiency and conservation opportunities that potentially reduce participants' recurring energy costs and corresponding greenhouse gas emissions. Assessments are recommended when a new business license is issued or once every three years for an existing license. Participating businesses are encouraged to cooperate with City staff or their delegate(s) by providing: (1) a date and time for the assessment convenient for the business, (2) access to their facilities for the assessment during their regular business hours, (3) authorization to review their historical energy usage and (4) a signature and title of a facility manager on a completed assessment form acknowledging that the business has received a completed assessment and relevant information about voluntary energy efficiency improvement opportunities. The owner of a multi- tenant commercial building or their designee (property manager) may, at their discretion, authorize a whole building assessment replacing the need for individual tenant assessments. A. Assessment Notification Process. The City may send a notice to each business at least once every three years in conjunction with the City's annual business license renewal mailer providing information that facilitates the scheduling of an assessment at the business's convenience. A business may also receive a business assessment notice whenever a new license is required, such as the establishment of a new business or transfer of ownership for an existing business. B. Assessment Deliverables. The assessment findings, provided to the participating business on a form established by the City Manager in conjunction with the local utility and business representatives, may include a chart of their historical energy consumption, an estimate of potential energy and cost savings 4-10 from identified energy conservation and efficiency opportunities and an estimate of the corresponding greenhouse gas emission reductions. The assessment may also review water conservation, alternative transportation and other practices which the business could implement and/or promote to its employees and customers and an estimate of the resulting greenhouse gas emission reductions. The City may offer participants assistance with completing the applicable rebate, incentive and/or on-bill financing forms to facilitate the adoption of the identified energy efficiency improvements and help reduce the business's time and cost of implementing the voluntary measures. The City may also provide contact information for the local utility's program staff that may further assist the business in reducing its energy costs. C. Exclusions. Because energy efficiency is commonly related to a facility's age and design, a voluntary energy assessment is not recommended for new businesses occupying a commercial space which have completed one of the following: (1) been permitted by the City Building Division within the last three years for a remodel or new construction to meet the most current City Title 24 and above standards, (2) has been certified through a California Energy Commission-approved (or other applicable state agency) green building program, or (3) has already received an assessment within the last three years. In addition, assessments are not necessary for home offices, mobile businesses and other business entities that do not have a utility gas or electric meter on a commercial rate schedule. (Ord. 3119 S 1, 2008). SECTION II. This ordinance shall take effect and be in full force thirty days from its adoption. Presented by Approved as to form by Michael Meacham Director of Conservation & Environmental Services ~~ Bart C. Miesfeld D'if'v7''1 City Attorney 4-11 .,~ ~ 'l:' ..,:~ CITY COUNCIL AGENDA STATEMENT :s\I~ CITY OF ~. - - (HULA VI5fA ITEM TITLE: SUBMITTED BY: REVIEWED BY: mLY21,2009,Item 5 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SUBMITTAL OF A CLIMA. TE SHOWCASE COMl\1UNITIES GRANT AJ>PLICATION TO THE ENVIRONMENTAL PROTECTION AGENCY FOR $471,000 AND AUTHORIZING THE CITY MA.NAGER OR HIS DESIGNEE TO EXECUTE ALL DOCUMENTS NECESSARY TO OBTAIN AND MANAGE GRANT HJNDS DIRECTOR OF CONSERVATION & ENVIRONMEN0 SERVICES t!:: . ~ CITY MANAGER: ASSISTANT CITY, Al'lAGER c:; / 4/5THS VOTE: YES D NO I X I SUMMARY The Environmental Protection Agency's Climate Protection Partnership Division is soliciting proposals for their Climate Showcase Communities grant program which was created to establish greenhouse gas emission reduction demonstration projects. In response. City staff has prepared a $471,000 proposal to retrofit two neighborhood areas to serve as a living showcase for "Carbon-Light Communities." Specifically, Chula Vista will select approximately 50 existing homes to upgrade with energy efficiency, water conservation and renewable energy improvements. These building upgrades will be further complemented by neighborhood infrastructure improvements such as the installation of higbly efficient street lighting technologies and the planting of shade trees. The "Carbon-Light" neighborhoods will serve as a social marketing tool for the City's broader Home Upgrade, Carbon Duwngrade program which is designed to provide streamlined contracting, permitting and property-secured financing for carbon-saving retrofits at over 2,000 homes over the next 3 years. The project budget, if funded, would cover all staff, material and general implementation costs, and would leverage the City's existing Energy Efficiency & Conservation Block Grant and SDG&E Local Government Pa,:1:nership funds. The project is estimated to reduce each participating property-owner's annual utility costs by $450. 5-1 JUL Y 21, 2009. Item 5 . - Page 2 of 4 E]\;'VIRO!,;MENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed actIvIty for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines, because the proposed action involves the submittal of a grant application which would not result in a potentially significant physical impact on the environment. Therefore, pursuant to Section 15060 (c) (3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDA TION Staff recommends that City Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION The Resource Conservation Commission unanimously recommended approval of the agenda item at their July 13, 2009 meeting. DISCUSSION The Environmental Protection Agency's (EP A) Climate Protection Partnerships Division was established to reduce greenhouse gases (GHG) by creating cost-effective partnerships with various community sectors including local municipalities and public agencies. Local governments playa critical role in reducing GHG emissions, but many struggle with meeting their established reduction targets. Therefore, the EP A has allocated $10 million to its Climate Showcase Communities grant program to establish greenhouse gas emission reduction demonstration projects, build local capacity to foster broader climate action and serve as replicable models for other local governments across the nation. It is anticipated that the EP A will award 19-25 grants ranging in value from $300,000 to $500,000. In response to the grant solicitation, City staff has prepared a $471,000 proposal to retrofit two neighborhood areas to serve as a living showcase for "Carbon-Light Communities". The City, in partnership with community groups, labor organizations, education districts and water and energy utilities, will encourage residents to recruit other homeowners on their street and nominate their neighborhoods for participation in the showcase project. Neighborhoods will be selected by the Resource Conservation Commission based on their level of homeowner participation and commitment to overall environmental sustainability. Participating homes within each selected neighborhood will receive no-cost energy efficiency, water conservation and renewable energy improvements. These retrofits will result in a lower carbon footprint for each home (and the overall neighborhood) and reduce their annual utility costs by approximately $450. In rerum, the participating homeowners will agree to allow their energy savings to be tracked, to host community open houses, and to assist with general publicity of the "Carbon-Light Communities" project. These individual home upgrades will be complemented by neighborhood infrastructure improvements such as highly-efficient street tight retrofits and shade tree plantings to provide an even more comprehensive, dramatic living model. The proposed project's budget would fully fund the individual 5-2 JUL Y 21, 2009, Item~ Page 3 of 4 property improvements, neighborhood infrastructure upgrades, project management and marketing costs. Existing utility incentives and rebates would also be integrated to improve the project's cost-effectiveness and expand its positive community impact. The "Carbon-Light Communities" project will serve as a powerful social marketing tool for the City's broader Home Upgrade, Carbon Downgrade program. The program, which was part of Council-approved Climate Measure #5, is intended to facilitate widespread installation of renewable energy and energy and water efficiency upgrades by helping residents and businesses overcome common institutional barriers, upfront capital costs and time constraints. The program's five primary components include (I) assisting participants in identifying cost-effective energy and water upgrades that help reduce monthly utility costs, (2) executing a competitive bid process that identifies participating contractors and establishes maximum prices and minimum warranty/service standards, (3) aggregating participants geographically to harness their collective purchasing authority and ma'(imize the potential for installation savings, (4) establishing voluntarv assessment districts to provide property-secured financing options for participants' improvements, and (5) linking local vocational job training in energy and water conservation with focused business recruitment and retention. The publicity and heightened public interest from the "Carbon-Light Communities" project "ill help support the Home Upgrade. Carbon Downgrade program's goal of enrolling over 2,000 properties in the next 3 years and generating approximately Sl million in annual community energy savings. The program will also help fuel a new "green" economy by creating demand for carbon-saving products and trained employees, and through partnerships with local educators, retailers, the National Electrical Contractors Association (NECA) and the International Brotherhood of Electrical Workers (IBEW). DECISION MAKER CONFLICT Staff has determined that the recommendations reqUITIng Council action are not site- specific and consequently the 500-foot rule found in California Code of Regulations section I 8704.2(a)(l) is not applicable to this decision. CURRENT YEAR FISCAL IMP ACT The City's submission of its Climate Showcase Communities grant application would not have a negative impact on the City's General Fund for the current fiscal year. If awarded, the grant would cover all staff time and material costs associated with implementing the project. The 50% match requirement under the grant guidelines would be funded through the existinil Conservation & Environmental Services Department budget and the SDG&E Local Government Partnership. ONGOING FISCAL IMPACT All implementation costs over the 3-year project period would be funded through the Climate Showcase Communities grant and other existing funding sources. Tnerefore, no negative ongoing General Fund impact is anticipated. Staff has worked with local contractors and retailers to include strong local and purchasing provisions in the program, and the upgrade of 2,000 homes per year would generate an estimated S30,000,000 in 5-3 JUL Y 21, 2009, 1tem~ Page 4 of 4 goods and services per year that will have a positive impact on the general fund and the local economy. A TT ACRl\1ENTS Attachment A - "Carbon-Light Communities" Grant Proposal Sumri1ary Prepared by: Brendan Reed, Environmental Resource Manager, Conservation & Errvironmenta! Services 5-4 ~ \ ft.- ~ - - -- -:...-- -~ - - - - ATTACHMENT A CITY OF CHULA VISTA CARBON-LIGHT COMMUNITIES PROJECT EPA Climate Showcase Communities Grant Program In response to the EPA's Climate Showcase Communities grant solicitation, the City's proposed project will focus on retrofitting two neighborhood areas to serve as a living showcase for a "'Carbon-Light Community." A "Carbon-Light Community" is an area that maximizes their efficient use of energy,. water and other natural resources in order to minimize their associated greenhouse gas emissions or carbon footprint. As part of the proposed project, Chula Vista, in partnership with community groups, labor organizations, education districts and water and enetgy utilities, will select approximately 50 existing homes to upgrade with energy efficiency, water conservation and renewable energy improvements. These building upgrades will be further complemented by neighborhood infrastructure improvements such as the installation of higWy- efficient street hghting technologies and the planting of shade trees. Below are some of the project's key components and expected benefits: Community-Driven Effort Working with neighborhood associations and civic groups, City staff will encourage residents to recruit other homeowners on their street and nominate their neighborhoods for participation in the showcase project. Neighborhoods will be selected based on their level of homeowner participation, potential carbon savings and commitment to overall environmental sustainability. It is expected that 2 neighborhoods with 20-25 homes each will be selected. No and Low-Cost Efficiency Improvements Participating homes within each selected neighborhood will receive no and low-cost energy efficiency, water conservation and renewable energy improvements. These upgrades may include compact fluorescent lights, ENERGY STAR appliances (refrigerators and washing machines), programmable thermostats, tankless water heaters, water-efficient faucet aerators/showerheads and weather-based irrigation controllers. Participant Aggregation A benefit of the project's block-by-block approach is an increase in implementation cost- effectiveness. By aggregating participants geographically, the City can harness their collective purchasing power, improve installation efficiency and lower the cost per carbon saved. This allows the project to engage more homeowners and neighborhoods in the community. Carbon Savings The individual home and neighborhood infrastructure upgrades will produce tangible reductions in energy and water consumption, thus lowering the neighborhoods' associated carbon emiSSIOns. To accurately quantify these reductions, aU participating homes wiU receive professional energy audIts and HERS (Home Energy Rating System) Index ratings before and after the upgrades. Homeowners will also have access to real-time energy monitors to track the savings associated with the upgrades and their behavioral changes. Carbon-Light Communities Project - Summary 10[2 5-5 Public Awareness Participating homeowners will agree to host community open houses and to assist with general publicity of the "Carbon-Light Communities" project. Program materials such as website profiles, brochures. direct mailers, street signage and presentation slides will be produced and distributed throughout Chula Vista and the region to build public awareness and support. Finally, the "Carbon-Light" neighborhoods will serve as a powerful social marketing tool for the City's broader Home Upgrade, Carbon Downgrade program which is designed to provide streamlined contracting, permitting and property-secured financing for carbon-saving retrofits at up to 2,000 homes per year over the 3-year grant cycle and ultimately until every interested property owner has the opportUnity to participate. Chula Vista's proposed project will help fuel a new "green" economy by creating demand for carbon-saving products and trained employees and through partnerships with local educators, retailers, the National Electrical Contractors Association (NECA) and the International Brotherhood of Electrical Workers (IBEW). The project will provide a program template which can be easily replicated and scalable for other jurisdictions who wish to create substantiaL measurable carbon reductions. Proposed Project Budget - Includes project coordination, technical assistance, Project Manager $56,000 S69,000 performance tracking, reporting & invoicing - 5% staff time (FeR) . Environmental Resource Grant Manager Management - Includes reporting and invoicing assistance as well Administrative Support $15,000 $70,800 as contractor support services - 5% staff time (FCR) - Secretary - Includes design, production and distribution of Marketmg & Outreach $50,000 $15,000 marketing materials as well as travel to required annual EP A conference & other events - Includes costs for products such- as compact Energy Efficiency $202,500 $50,600 fluorescent lights, ENERGY STAR appliances (refrigerators and washing machines), programmable thermostats & tankless water heaters Carbon- Saving - Includes costs for products such as water-efficient Upgrades Water Efficiency $57,500 $14,400 faucet aerators/showerheads and weather-based irrigation controllers Neighborhood"} nfrastructu re $15.000 $3,000 - Includes costs & labor for shade trees and upgraded streetlights Contracted Work $75,000 $15,000 - Includes installation and energy audit costs TOTALS $471,000 $237,800 Carbon-Light Communities Project - Summary 20f2 5-6 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SUBMITTAL OF A CLIJ\'IATE SHOWCASE COMMUNITIES GRANT APPLICATION TO THE ENVIRONMENTAL PROTECTION AGENCY FOR $471,000 Ai'JD AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL DOCUMENTS NECESSARY TO OBTAIN AND MANAGE GRANT FUNDS WHEREAS, the Environmental Protection Agency's Climate Protection Partnership Division (EPA) is soliciting proposals for their Climate Showcase Communities grant program which was created to establish greenhouse gas emission reduction demonstration projects; and WHEREAS, in response, City staff has prepared a $471,000 proposal to retrofit two neighborhood areas to serve as a living showcase for "Carbon-Light Communities."; and WHEREAS specifically, Chula Vista will select approximately 50 existing homes to upgrade with energy efficiency, water conservation and renewable energy improvements; and WHEREAS, these building upgrades will be further complemented by neighborhood infrastructure improvements such as the installation of highly efficient street lighting technologies and the planting of shade trees; and WHEREAS, the "Carbon-Light" neighborhoods will serve as a social marketing tool for the City's broader Home Upgrade, Carbon Downgrade program which is designed to provide streamlined contracting, permitting and property-secured financing for carbon-saving retrofits at over 2,000 homes over the next 3 years; and WHEREAS, the project budget, if funded, would cover all staff, material and general implementation costs, and would leverage the City's existing Energy Efficiency & Conservation Block Grant and SDG&E Local Government Partnership funds; and WHEREAS, the project is estimated to reduce each participating property-owner's annual utility costs by $450; and WHEREAS, EPA was established to reduce greenhouse gases (GHG) by creating cost- effective partnerships with various community sectors including local municipalities and public agencies; and WHEREAS, the EPA has allocated $10 million to its Climate Showcase Communities grant program to establish greenhouse gas emission reduction demonstration projects, build local capacity to foster broader climate action and serve as replicable models for other local goverrunents across the nation; and J:\AllOrney\FINAL RESOS'\:OO9\07 21 09\C;imale Sl1owc.a'le doc 5-7 Resolution No. 2009- Page 2 WHEREAS, the City, in partnership with community groups, labor organizations, education districts and water and energy utilities, will encourage residents to recruit other homeowners on their street and nominate their neighborhoods for participation in the showcase proj ect; and WHEREAS, neighborhoods will be selected based on their level of homeowner participation and commitment to overall environmental sustainability; and WHEREAS, participating homes within each selected neighborhood will receive no-cost energy efficiency, water conservation and renewable energy improvements; and WHEREAS, in return, the participating homeowners will agree to allow their energy savings to be tracked, to host community open houses, and to assist with general publicity of the "Carbon-Light Communities" project; and WHEREAS, these individual home upgrades will be complemented by neighborhood infrastructure improvements such as highly-efficient street light retrofits and shade tree plantings to provide an even more comprehensive, dramatic living model; and WHEREAS, the proposed project's budget would fully fund the individual property improvements, neighborhood infrastructure upgrades, project management and marketing costs; and WHEREAS, existing utility incentives and rebates would also be integrated to improve the project's cost-effectiveness and expand its positive community impact. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve submittal of a Climate Showcase Communities Grant Application to the Environmental Protection Agency for $471,000. BE IT FURTHER RESOLVED, that the City Council of the City of Chula Vista does hereby authorize the City Manager or his designee to execute all documents necessary to obtain and manage grant funds. Presented by Approved as to form by Michael Meacham Director of Conservation and Environmental Services '---- J:'v\rtom~y\FlNAL RESOSU009\07 21 09\Clirnalc Showcase. doc 5-8 CITY COUNCIL AGENDA STATEMENT .' ~lft- CITYOF ~~ (HULA VISTA 7/21/09, Item~ ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ENTERING INTO A PROPERTY USE LICENSE AGREEMENT WITH TRUGREEN LANDCARE DmECTOROFP~~~ CITY MANAGER ASSIST ANT CIT ANAGER S-r 4/STHS VOTE: YES 0 NO [g) SUBMITTED BY: REVIEWED BY: SUMMARY Due to current budget constraints, the Public Works Department IS scheduled to termmate or suspend ongoing maintenance contracts for this fiscal year (FY2009/20 I 0). This action would result in the need to perfoffil necessary maintenance with existing City Parks staff A current contractor, TruGreen LandCare, has offered to continue their services to the City at no cost in exchange for a staging location from which they can service their local contract. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA).and has determined that the project qualifies for a Class 1 categorical exemption pursuant to Section 15301 [Existing Facilities] of the State CEQA Guidelines because the proposal involves negligible or no expansion of an existing facility. Thus, no further environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMNIISSION RECOMMENDATION Not applicable. DISCUSSION The Public Works Department has contracted out the maintenance of landscaped medians and parkways since 2000. The current contract for these services is scheduled to cost the department approximately $57,000. However, due to budget reductions, Park crews are scheduled to assume the maintenance of these areas in this fiscal year (FY2009/201O). The current contractor, TruGreen LandCare, is seeking a yard facility within the City to stagc their local contracts. They have approached the City about the possibility of utilizing a portion of the City's old corporation yard located at 707 F Street for this purpose. Staff has negotiated a proposed License Agreement that would allow the City to retain the services of TruGreen in exchange for use of a portion of 6-1 7/21/09, Item~ Page 2 of 2 the old yard. The City is proposing to enter into a property use license agreement with TruGreen for rent at a site at the old yard in exchange for maintenance of landscape medians and parkways. The term of the agreement is one year commencing on the effective date of the agreement. 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. CURRENT FISCAL IMP ACT There is no impact to the General Fund as the cost for services provided by TruGreen LandCare will be in lieu of use of space at the old corporation yard located at 707 F Street per the proposed Lease Agreement. The benefits offered by this arrangement also increases local business collaborative efforts and services during these difficult economic times. ONGOING FISCAL IMPACT This is a one-year lease agreement. As the Lease Agreement expires, staff will reevaluate the situation and make further recommendations at that time. There are no anticipated impacts to the General Fund. ATTACHMENTS I. Property Use License Agreement Prepared by: Rick Ryals. Real Properl)' iHtlnager. Public Works Dept. M:\EngineerlAGENDAICAS2009\07 2 J-09\TRUGREEN WCA LICENSES doc 6-2 THE ATTACHED AGREEJ\1ENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITJ COUN~.!!- {J1!I . I i Bart C. Miesfeld City Attorney O",d 76/e>> , .J ' Property Lease Agreement By and Between the City of Chula Vista and TruGreen Landcare F or the Use of City Owned Real Property Located at 707 "F" Street 6-3 PROPERTY LEASE AGREEMENT BY AND BETWEEN OF THE CITY OF CHULA VISTA AND TRUGREEN LANDCARE FOR THE USE OF CITY OWNED REAL PROPERTY LOCATED AT 707 F STREET DATED AS OF 6-4 CITY OF CHULA VISTA LEASE AGREEMENT TRUGREEN LANDCARE SECTION PARAGRAPH PAGE SECTION 1: USES 1.01 Premises 1 1.02 Uses 1 1.03 Reservation of Rights 2 SECTION 2: TERM 2.01 Term 2 2.02 Termination 2 203 Surrender of Premises 2 SECTION 3: COMPENSATION 3.01 Rent for Use of Premises 3 3.02 Utilities 3 SECTION 4: INSURANCE RISKS/SECURITY 4.01 Indemnity 3 4.02 Insurance 4 4.03 Accident Reports 6 SECTION 5: TERMS AND CONDITIONS OF OCCUPANCY 501 Form of Agreement 6 5.02 Right to Occupy 6 5.03 Taxes 7 6-5 6-6 THIS LEASE AGREEMENT, hereinafter called "Agreement", dated as of , solely for identification purposes, is executed between the City of Chula Vista, a public body corporate and politic, hereinafter called "City", and TRUGREEN LANDCARE, a , hereinafter called "Lessee", to establish terms and conditions of Lessee's use of certain real property owned by City and to provide terms and conditions of Lessee's occupancy and use of City's property. The effective date of this Agreement shall be the date this Agreement is approved by the City ("Effective Date"). RECITALS WHEREAS, City is the legal and equitable owner of that certain real property located at 707 F Street, Chula Vista, currently identified as San Diego County Assessor's Parcel No. 567- 031-27, more fully described herein below; and WHEREAS, Lessee is the owner and operator of TruGreen LandCare whose principle place of business is located at 5248 Governor Drive, San Diego, CA 92122; and WHEREAS, Lessee desires to and has requested permission to use a portion of said City real property, more particularly described herein for the storage and staging of landscaping equipment and supplies; and WHEREAS, City hereby Leases to Lessee and Lessee hereby Leases from City that certain portion of City's real property herein identified, under the terms, covenants, conditions and provisions contained herein. AGREEMENT NOW THEREFORE, THE PARTIES HERETO MUTUALLY AGREE AS FOLLOWS: SECTION 1: USES 1.01 Premises. City hereby Leases to, in accordance with the terms, covenants, conditions and provisions hereof, that certain City owned real property located at 707 F Street, Chula Vista, and currently identified as San Diego County Assessor's parcel No. 567-031-27, and more particularly shown a sketch thereof designated as Exhibit "A" attached hereto and by this reference made part of this Agreement (the "Premises"). In return for this permission, Lessee hereby agrees to act in accordance with and abide by the terms, covenants, conditions and provisions of this Agreement. 1.02 Uses. It is expressly agreed that the Premises shall be used by Lessee solely and exclusively for the purpose of storage and staging landscaping supplies and equipment and for such other related or incidental purposes as may be first approved in writing by the City's Real Property Manager ("Manager") and for no other purpose whatsoever. Lessee covenants and agrees to use the Premises only for the above specified purpose and to diligently pursue said purpose throughout the term hereof. Lessee shall not use or permit any use of the Premises in any manner which disturbs the use and quiet enjoyment by City or any surrounding tenants. In the event that Lessee fails to continuously use the Premises for said Page 1 07/15/2009 TruGreen LandCare License Agreement 6-7 ,i I I ~ I !I ~ purpose, or uses the Premises for purposes not expressly authorized herein, the Lessee shall be deemed in default under this Agreement. 1.03 Reservation of Riqhts. City shall not unreasonably or substantially interfere with Lessee use of the Premises while Lessee is in possession of the Premises. However, the City specifically retains the following rights: a. Subsurface Rights. City hereby reserves all rights, title and interest in any and all subsurface natural gas, oil, minerals and water on or within the Premises. b. Easements. City reserves the right to grant and use easements or to establish and use rights-of-way over, under, along and across the Premises for utilities, thoroughfares, or access as it deems advisable for the public good. c. Right to Enter. City has the right to enter the Premises for the purpose of performing maintenance, inspections, repairs or improvements, or developing municipal resources and services. SECTION 2: TERM 2.01 Term. The term of this Agreement shall be one year commencing on the Effective Date of this Agreement. Upon the expiration of the initial term of this Agreement, Lessee may request to extend the term of the Lease for an additional one-year term. Lessee shall request said option by written notice to City not less than 90 (ninety) calendar days prior to the expiration of the Lease term. Any extension shall be subject to the approval of City. Unless otherwise mutually agreed by the parties in writing, the terms and conditions of this Agreement shall remain in effect during the extended term. If City for any reason cannot deliver possession of the Premises to Lessee at the commencement of the term, or if during the term of this Agreement Lessee is dispossessed for any reason whatsoever, City shall not be liable to Lessee for any loss or damage resulting therefrom. 2.02 Termination. Notwithstanding any other remedies provided by this Agreement, City has the right, at its sole discretion, to terminate this Agreement upon ninety (90) days written notice to Lessee. Lessee has the right to terminate this Agreement upon ninety (90) days written notice to City. 2.03 Surrender of Premises. At the expiration or earlier termination of this Agreement, Lessee shall surrender the Premises to City free and clear of all liens and encumbrances, except those liens and encumbrances which existed on the date of the execution of this Agreement by City. The Premises, when surrendered by Lessee, shall be in a safe and sanitary condition and shall be in as good or better condition as the condition at the commencement of this Agreement, absent normal wear and tear. Page 2 07/15/2009 TruGreen LandCare License Agreement 6-8 SECTION 3: RENT 3.01 Rent for Use of Premises. Licensee does hereby acknowledge and agree that providing landscaping services for the City as set forth in Scope of Services attached hereto as Exhibit "B", together with the maintenance and upkeep of the Premises, in an attractive, good, neat, and orderly condition. Said services shall be performed in coordination with and to the satisfaction of Public Works Department Staff, by Licensee during the term of this Agreement is a material consideration of City entering into this Agreement. City agrees that the landscape services together with the maintenance and upkeep of the Premises by Licensee as set forth in Section 6 hereof, are valuable consideration received from Licensee and shall constitute all the property use payment to be paid by Licensee for its use of the Premises in accordance with the terms, covenants, conditions and provisions of this Agreement. Provided Licensee is not in breach or default under any of the terms hereof, Licensee shall not be required to pay any monetary consideration to City for its use and occupation of the Premises. For convenience only, consideration as set forth in this Section 3.01 may be referred to as rent. 3.02 Utilities. Lessee agrees that no utilities are available under this Lease and none are to be accessed without prior written approval of City. , SECTION 4: INSURANCE RISKS/SECURITY 4.01 Indemnity. a. Lessee hereby agrees to defend, indemnify, and hold the City, its directors, officers, employees, and agents, harmless from and against any and all liability or claim of liability, loss or expense, including defense costs and legal fees and claims for damages of whatever character, nature and kind, whether directly or indirectly arising from or connected with, or related to this Agreement or an act or omission of Lessee, or any employee, agent, invitee, contractor of Lessee, or other person acting by or on behalf of Lessee on or about the Premises, including, but not limited to, liability, expense, and claims for bodily injury, death, personal injury, or property damage. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees, or agents. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Lessee, its employees, agents or officers b. Costs of Defense and Award. Included in the obligations in Section a1, above, is the Lessee's obligation to defend, at Lessee's own cost, expense and risk, any and all aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers. Lessee shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, Page 3 07/1512009 TruGreen LandCare license Agreement 6-9 officials, officers, employees, agents and/or volunteers, for any and all legal expense and cost incurred by each of them in connection therewith. c. Insurance Proceeds. Lessee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. d. Declarations. Lessee's obligations under Section 4 shall not be limited by any prior or subsequent declaration by the Lessee. e. Enforcement Costs. Lessee agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Section 4. f. Survival. Lessee's obligations under Section 4 shall survive the termination of this Agreement. 4.02 Insurance. Lessee shall take out and maintain at all times during the term of this Agreement the following insurance at its sole expense: a. Lessee shall maintain the following minimum limits: General Liabilitv Insurance Commercial General Liability Insurance covering liability of the Lessee with respect to all operations to be performed and all obligations assumed by the Lessee under the terms of this Agreement. Coverage for commercial general liability shall be at least as broad as Insurance Services Office Commercial General Liability Coverage (Occurrence Form CG 0001). Limits shall be no less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply to the Premises (with the ISO CG 2503, or ISO CG 2504, or insurer's equivalent endorsement provided to City) or the general aggregate limit shall be twice the required occurrence limit. Automobile Liabilitv Insurance Automotive Liability Insurance covering the liability of Lessee arising out of the use of all owned, non-owned, and hired vehicles which bear, or are required to bear, license plates according to the laws of California and which are not covered under the Lessee Commercial General Liability insurance. Coverage under this policy shall have limits of liability of not less than one million dollars ($1,000,000) per occurrence, combined single limit, for bodily injury and property damage (including loss of use) liability. Coverage shall be at least as broad as Insurance Services Office Automobile Liability Coverage (Form CA 0001), covering Symbol 1 (any auto). Workers' Compensation and Emplover's Liabilitv Insurance Page 4 07/15/2009 TruGreen LandCare License Agreement 6-10 Page 5 Workers' Compensation and Employer's Liability Insurance complying with the requirements of all applicable laws relating to workers' compensation insurance, covering or insuring all of the Lessee employees working on or about the Premises. Limits shall be no less than statutory limits per accident for bodily injury and disease. By his/her signature hereunder, Lessee certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it will comply with such provisions in connection with any work performed on or about the Premises. Any persons providing services with or on behalf of Lessee shall be covered by workers' compensation (or qualified self-insurance) b. All insurance companies affording coverage to the Lessee shall be required to add the City of Chula Vista, its officials, officers, employees, and agents as "additional insured(s)" under the insurance policy(s) required in accordance with this Agreement. Lessee shall furnish (or cause to be furnished) a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form of the insurance carrier setting forth the general provisions of the insurance coverage. This countersigned certificate (and endorsement) shall name the City and the City, their officers, agents, employees, and authorized volunteers as additional insured under the policy. Coverage provided hereunder to the City and City as additional insured by Lessee shall be primary insurance and other insurance maintained by the City, its officials, officers, agents and/or employees, shall be excess only and not contributing with insurance provided pursuant this Section 4.02, and shall contain such provision in the pOlicy(ies), certificate(s) and/or endorsement(s). The insurance policy or the certificate of insurance shall contain a waiver of subrogation for the benefit of the City, its officials, officers, employees, and agents. C. All insurance companies affording coverage to the Lessee shall be insurance organizations acceptable to the City, and authorized by the Insurance Commissioner of the State Department of Insurance to transact business of insurance in the State of California. Insurance is to be placed with insurers having a current A.M. Best rating of no less than A-, VII or equivalent or as otherwise approved by City. d. All insurance companies affording coverage shall provide thirty (30) days written notice to the City should the policy be cancelled before the expiration date. For the purposes of this notice requirement, any material change in the policy prior to the expiration shall be considered a cancellation. e. Lessee shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance, in a form satisfactory to the General Counsel (City Attorney), concurrently with the submittal of this Agreement. f. Lessee shall provide a substitute certificate of insurance no later than thirty (30) days prior to the policy expiration date. Failure by the Lessee to provide such a 07/15/2009 TruGreen LandCare License Agreement 6-11 substitution and extend the policy expiration date shall be considered a default by Lessee and may subject the Lessee to a termination of this Agreement. g. Maintenance of insurance by the Lessee as specified in this Agreement shall in no way be interpreted as relieving the Lessee of any responsibility whatever and the Lessee may carry, at its own expense, such additional insurance as it deems necessary. h. If Lessee fails or refuses to take out and maintain the required insurance, or fails to provide the proof of coverage, City has the right to obtain the insurance. Lessee shall reimburse City for the premiums paid with interest at the maximum allowable legal rate then in effect in California. City shall give notice of the payment of premiums within thirty (30) days of payment stating the amount paid, names of the insurer(s), and rate of interest. Said reimbursement and interest shall be paid by Lessee on the first (1 st) day of the month following the notice of payment by City. i. City, at its discretion, may require the reVISion of amounts and coverage at anytime during the term of this Agreement by giving Lessee sixty (60) days prior written notice. City's requirements shall be designed to assure protection from and against the kind and extent of risk existing on the Premises. Lessee also agrees to obtain any additional insurance required by City for new improvements, in order to meet the requirements of this Agreement. j. Notwithstanding the preceding provisions of this Section 4.02, any failure or refusal by Lessee to take out or maintain insurance as required in this Agreement, or failure to provide the proof of insurance, shall be deemed a default under this Agreement and in such event, City may terminate this Agreement upon three (3) days written notice to Lessee. For the purposes of this Agreement, the condition to provide the insurance coverage required under this Section 4.02 shall be in addition to rent. 4.03 Accident Reports. Lessee shall promptly report to City any accident causing any property damage or any serious injury to persons on or about the Premises. This report shall contain the names and addresses of the parties involved, a statement of the circumstances, the date and hour, the names and addresses of any witnesses and other pertinent information. SECTION 5: TERMS AND CONDITIONS OF OCCUPANCY 5.01 Form of Aqreement. This Agreement is a limited lease for the use of the Premises for those particular purposes identified in Section 1.2. Nothing in this Agreement shall be interpreted to grant any interest in the Premises other than that specified in this Agreement. At no time shall the Lessee's limited interest in the Premises ripen into a leasehold or fee interest with a claim or right to exclusive possession thereof. 5.02 Riqht to Occupy. Lessee right to occupy the Premises may be terminated by City at any time if Lessee fails to satisfactorily perform the improvement, maintenance, and Page 6 07/15/2009 TruGreen LandCare License Agreement 6-12 upkeep duties or responsibilities of Lessee set forth hereunder. City reserves the right to terminate this Agreement as may be provided for elsewhere herein. 5.03 Taxes. Lessee shall pay, before delinquency, all taxes, assessments, and fees assessed or levied upon Lessee or the Premises, including the land, any buildings, structures, machines, equipment, appliances, or other improvements or property of any nature whatsoever erected, installed, or maintained by Lessee or levied by reason of the business or other Lessee activities related to the Premises, including any licenses or permits. Lessee recognizes and agrees that this Agreement may create a possessory interest subject to property taxation, and that Lessee may be subject to the payment of taxes levied on such interest, and that Lessee shall pay all such possessory interest taxes prior to their delinquency. SECTION 6: IMPROVEMENTS/AL TERATIONS/REPAIRS 6.01 Acceptance of Premises. The Premises is being offered to Less'ee in an As-Is and Where-Is condition without any warranty, expressed or implied. Lessee represents and warrants that it has independently inspected the Premises and made all tests, investigations, and observations necessary to satisfy itself of the condition of the Premises and all improvement appurtenant thereto. Lessee acknowledges it is relying solely on such independent inspection, tests, investigations, and observations in making this Agreement. Lessee further acknowledges that the Premises are in the condition called for by this Agreement, and that Lessee does not hold City responsible for any defects in the Premises. 6.02 Waste, Damaqe, or Destruction. Lessee shall give notice to City of any fire or other damage that occurs on the Premises within forty-eight (48) hours of such fire or damage. Lessee shall not commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the Premises, adjoining sidewalks, and other public areas, clean and clear of refuse and obstructions, and to dispose of all garbage, trash, and rubbish in a manner satisfactory to City. If the Premises shall be damaged by any cause which puts the Premises into a condition which is not decent, safe, healthy and sanitary, Lessee agrees to make or cause to be made full repair of said damage and to restore the Premises to the condition which existed prior to said damage; or, at City's option, and upon receipt of written demand thereof, Lessee agrees to clear and remove from the Premises all debris resulting from said damage and repair the Premises in accordance with plans and specifications previously submitted to City and approved in writing in order to replace in kind and scope the improvements which existed prior to such damage. Lessee shall be responsible for all costs incurred in the repair and restoration, or rebuilding of the Premises. Lessee shall not cause or permit any hazardous material to be used, stored, transported, generated, or disposed in or about the Premises by Lessee, Lessee's agents, employees, contractors, Lessees, or invitees. "Hazardous Material" means any hazardous, toxic, or infectious substance, material, or waste, which is or becomes regulated by any local governmental entity, the State of California, or the United States government under any law, regulation or ordinance. 6.03 Maintenance. Lessee agrees to assume full responsibility and cost for the operation and maintenance of the Premises throughout the term of this Agreement. Lessee will Page 7 07/15/2009 TruGreen LandCare License Agreement 6-13 make customary and usual maintenance necessary to maintain and preserve the Premises, all improvements, including fencing, adjoining sidewalks, and other public areas, in a decent, safe, healthy, and sanitary condition satisfactory to City and in compliance with all applicable laws. Lessee shall remove and lawfully and properly dispose of all garbage, litter, trash, debris, and rubbish from or about the Premises, adjoining sidewalks, and other public areas, on a daily basis. All components of the fencing, including but not limited to posts and rails, shall be mended/replaced on an as-needed, when-needed basis, using material of similar type and style. Lessee shall maintain surface on the Premises in a good, neat and orderly manner. Weeds, tree or shrub branches, leaves, twigs, and other similar debris shall be removed from the Premises as needed to maintain a neat appearance at all times. Lessee shall provide access control to the Premises to prevent access and parking of unauthorized vehicles. All maintenance and other Lessee duties set forth herein shall, during the term hereof, be done at Lessee sole cost and expense and City shall not be called upon for any outlay or expense related thereto. If at any time during the term of this Agreement, City reasonably determines that the Premises are not in a decent, safe, healthy, and sanitary condition, City may, at its sole discretion and option, terminate this Agreement upon written notice to Lessee and regain possession of the Premises from Lessee. In the event of such termination, or if City elects not to terminate, City may, upon written notice to Lessee, have any necessary maintenance work done in order to place the Premises back to a decent, safe, healthy, and sanitary condition at the expense of Lessee. In such event, City shall provide Lessee written notice and itemized billing showing the work performed and Lessee shall make payment to City no later than thirty (30) days after receipt of said notice and billing. The rights reserved in this Section 6.03 shall not create any obligations on City or increase obligations elsewhere in this Agreement imposed on City. The provisions of this Section 6.03 shall survive the expiration or earlier termination of this Agreement. 6.04 Improvements/Alterations. No improvements, structures, or installations shall be constructed on the Premises, and the Premises may not be altered by Lessee without prior written approval by the City. This provision shall not relieve Lessee of any obligation under this Agreement to maintain the Premises in a decent, safe, healthy, and sanitary condition, including structural repair and restoration of damaged or worn improvements. City shall not be called upon to, or be obligated by this Agreement to make or assume any expense for any exi~ting improvements or alterations. 6.05 Liens. Lessee shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance, or claim on or with respect to all or any portion of the Premises without the prior written consent of the City's Property Manager. Lessee shall promptly, at its own expense, take such action as may be necessary to duly discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim on or with respect to all or any portion of the Premises for which Lessee does not have the prior written consent of the City's Property Manager. 6.06 Siqns. Lessee shall not erect or display any banners, pennants, fiags, posters, signs, decorations, marquees, awnings, or similar devices or advertising on or about the Premises without the prior written consent of City. If any such unauthorized item is found on the Premises, Lessee shall remove the item at its expense within twenty-four (24) hours of written notice thereof by City, or City may thereupon remove the item at Lessee's cost. Page 8 07/1512009 TruGreen LandCare Lice~se Agreement 6-14 6.07 Ownership of Improvements. Any and all improvements, structures, and installations or additions to the Premises now existing or constructed on the Premises by Lessee shall at Agreement expiration or termination be deemed to be part of the Premises and shall become, at City's option, City's property, free of all liens and claims except as otherwise provided in this Agreement. If the City chooses not to accept improvements made by Lessee, during the term of this Lease, and prefers to have such improvements removed, Lessee shall do so at its sole cost and expense. 6.08 Breach by Lessee. Lessee's refusal or failure to meet its obligations under this Section 6 shall be deemed a breach of this Agreement, and in such event, City may terminate this Agreement pursuant to the provision of Section 7.10 or elsewhere herein. SECTION 7: GENERAL PROVISIONS 7.01 Notices. All notices, demands, requests, consents or other communications which this Agreement contemplates or authorizes, or requires or permits either party to give to the other, shall be in writing and shall be personally delivered or mailed, postage prepaid, to the respective party as follows: To City: To Lessee: Rick Ryals Real Property Manager City of Chula Vista Department of Public Works 276 Fourth Avenue Chula Vista, CA 91910 TruGreen LandCare PO Box 22207 San Diego, CA 92192-2207 Attention: Jared Rice With Copy to: City of Chula Vista City Attorney 276 Fourth Avenue Chula Vista, CA 91910 Either party may change its address by notice to the other party as provided herein. Communications shall be deemed to have been given and received on the first to occur of: (i) actual receipt at the offices of the party to whom the communication is to be sent, as designated above; or (ii) three working days following the deposit in the United States Mail of certified mail, postage prepaid, return receipt requested, addressed to the offices of the party to whom the communication is to be sent, as designated above, or (iii) actual receipt if made by recognized reliable currier service who maintains a receipt of delivery. Page 9 07/15/2009 TruGreen LandCare License Agreement 6-15 7.02 City Approval. The City's Property Manager shall be the City's authorized representative in the interpretation and enforcement of all work performed in connection with this Agreement. The City's Property Manager may delegate authority in connection with this Agreement to the City's Property Manager's designee(s). For the purposes of directing Lessee in accordance with this Agreement, which does not result in a change to this Agreement, the City's Property Manager delegates authority to the Real Estate Manager and/or the Redevelopment Manager of the Economic and Community Development Department. For the purposes of interpretation of and/or changes to this agreement, the City's Property Manager delegates authority to the Real Estate Manager. 7.03 Nondiscrimination. Lessee agrees not to discriminate in any manner against or segregation of any person or persons, on account of race, color, religion, sex, familiar status, national origin, ancestry, age, disability or sexual orientation in the use, occupancy, tenure or enjoyment of the Premises, nor shall Lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of the Premises. 7.04 Equal Opportunity. Lessee shall assure applicants are employed and that employees are treated during employment without regard to race, familial status, color, religion, sex or national origin. Lessee hereby certify to City that Lessee is in compliance and throughout the term of this Agreement will comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, and any other applicable Federal, State and Local law, regulation and policy (including without limitation those adopted by City) related to equal employment opportunity and affirmative action programs, including any such law, regulation, and policy hereinafter enacted. a. Compliance and performance by Lessee of the equal employment opportunity and affirmative action program provision of this Agreement is an express condition hereof and any failure by Lessee to so comply and perform shall be a default of this Agreement and City may exercise any right as provided herein and as otherwise provided by law. 7.05 Entire Aqreement. This Agreement comprises the entire integrated understanding between City and Lessee concerning the use and occupation of the Premises and supersedes all prior negotiations, representations, or agreements. Each party has relied on its own examination of the Premises, advice from its own attorneys, and the warranties, representations, and covenants of the Agreement itself. 7.06 Interpretation of the Aqreement. The interpretation, validity and enforcement of the Agreement shall be governed by and construed under the laws of the State of California. The Agreement does not limit any other rights or remedies available to City. a. The Lessee shall be responsible for complying with all Local, State, and Federal laws whether or not said laws are expressly stated or referred to herein. b. Should any provision herein be found or deemed to be invalid, the Agreement shall be construed as not containing such provision, and all other provisions which are otherwise lawful shall remain in full force and effect, and to this end the provisions of this Agreement are severable. Page 10 07/15/2009 TruGreen LandCare License Agreement 6-16 c. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 7.07 Aqreement Modification. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by the parties hereto. 7.08 Attorney's Fees. In the event a suit is commenced by City against Lessee to enforce payment of amounts due, or to enforce any of the terms and conditions hereof, or in case City shall commence summary action under the laws of the State of California relating to the unlawful detention of Premises, for forfeit of this Agreement, and the possession of the Premises, provided City effects a recovery, Lessee shall pay City all reasonable costs expended in any action, together with a reasonable attorney's fee to be fixed by the court. Venue for any such suit or action shall be California Superior Court, San Diego County, North County Branch. 7.09 Assiqnment and Sublettinq-No Encumbrance. This Agreement and any portion thereof shall not be assigned, transferred, or sublet, nor shall any of the Lessee's duties be delegated, without the express written consent of City. Any attempt to assign or delegate this Agreement without the express written consent of City shall be void and of no force or effect. A consent by City to one assignment, transfer, sublease, or delegation shall not be deemed to be a consent to any subsequent assignment, transfer, sublease, or delegation. 7.10 Defaults and Termination. If City has a good faith belief that Lessee is not complying with the terrns of this Agreement, City shall give written notice of the default (with reasonable specificity) to Lessee and demand the default to be cured within fifteen (15) days of the notice. If Lessee is actually in default of this Agreement and fails to cure the default within fifteen (15) days of the notice, or, if more than fifteen (15) days are reasonably required to cure the default and Lessee fails to give adequate assurance of due performance within ten (10) days of the notice, City may terminate this Agreement upon written notice to Lessee. City may also terminate this Agreement upon written notice to Lessee in the event that: a. Lessee has previously been notified by City of Lessee's default under this Agreement and Lessee, after beginning to cure the default, fails to diligently pursue the cure of the default to completion; or b. Lessee shall voluntarily file or have involuntarily filed against it any petition under any bankruptcy or insolvency act or law; or c. Lessee shall be adjudicated a bankruptcy; or d. Lessee shall make a general assignment for the benefit of creditors. Upon termination, City may immediately enter and take possession of the Premises. 7.11 No Waiver. The failure to require the remedy of a breach or enforce the terms and conditions of this Agreement in one instance or several instances sha[1 not be interpreted to be a waiver of the right to enforce the terms and conditions of this Agreement for any subsequent breach. Page 11 07/15/2009 TruGreen LandCare License Agreement 6-17 7.12 Other Requlations. All use of the Premises by Lessee under this Agreement shall be in accordance with the laws of the United States of America, the State of Califomia, the County of San Diego, and in accordance with all applicative rules and regulations and ordinances of the City of Chula Vista now in force, or hereinafter prescribed or promulgated by resolution or ordinance or by Local, State or Federal law. 7.13 Time is of Essence; Provisions Bindinq on' Successors. Time is of the essence of all of the terms, covenants and conditions of this Agreement and, except as otherwise provided herein, all of the terms, covenants and conditions of this Agreement shall apply to, benefit and bind the successors and assigns of the respective parties, jointly and individually. 7.14 Section Headinqs. The Table of Contents and the section headings contained herein are for convenience only and are not intended to define or limit the scope of any provision thereof. 7.15 GenderlSinqular/Plural. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the masculine and neuter, and each includes corporation, partnership, or other legal entity when the context so requires. The singular number includes the plural whenever the context so requires. 7.16 Non-Iiabilitv of Officials. No member, official or employee of the City shall be personally liable to Lessee, its assigns or successors in interest, in the event of any default or breach by the City, for any amount which may become due to Lessee its assigns or successors, or for any obligations under the terms of this Agreement. 7.17 Relationship between City and Lessee. It is hereby acknowledged that the relationship between City and Lessee is that of landowner and tenant at will and not that of a partnership or joint venture and that City and Lessee shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein, the City shall have no duties or obligations with respect to the improvement, maintenance or upkeep of the Premises. 7.18 Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. REMAINDER OF PAGE LEFT BLANK INTENTlONALL Y [Signatures on Following Page] Page 12 07/15/2009 TruGreen LandCare License Agreement 6-18 SECTION 8: SIGNATURES 8.01 Siqnatories. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Lessee and the City. IN WITNESS WHEREOF the parties hereto for themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Property Use Permit to be executed as of, but not necessarily on, the Effective Date by setting hereunto their signatures herein below. CITY: City of Chula Vista By: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: LESSEE: TruGreen Landcare By: Dated: NOTARY ACKNOWLEDGMENTS OF LESSEE'S SIGNATURE(S) MUST BE ATTACHED Page 13 07/15/2009 TruGreen LandCare License Agreement 6-19 Exhibit "A" TrueGreen LandCare Lease Area 6-20 Exhibit "8" Scope of Services Tru-Green Landcare shall furnish all labor, equipment, materials, tools, services, incidentals, and special skills required to continue the landscape maintenance of the following areas, as part of extending their original 2005 contract per Council Resolution 2005-266 DTD 7/26/2005. Terms and Conditions ,/ Orange Ave Turf Islands from Connally Ave. to Melrose ,/ Broadway Islands from Main s1. to "L" s1. ,/ Palomar s1. Island between Broadway and Industrial ,/ South Main street park'way and islands from Oleander to Maxwell ave. ,/ Parkway Islands in front of the Parkway Gymnasium between 3rd and 4th avenue ,/ Third ave. turf Islands from Madrona to F s1. ,/ Est Island at Hwy 805 ,/ H st corridor between Hwy 5 and Broadway ,/ West J st Islands between Hwy 5 and Broadway ,/ Islands in front ofBoruta High School south to Southwestern College on Otay Lakes Road ,/ East H street turfIslands between Auburn ave. and Otay Lakes road ,/ East J st islands between Gilbert Place and Cassia Place ,/ Palomar St MTDB Trolley Station 6-21 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ENTERING INTO A PROPERTY USE LICENSE AGREEMENT WITH TRUGREEN LANDCARE WHEREAS, the City has been approached by an existing contractor, TruGreen Landcare (TruGreen), about leasing a portion of City-owned property to store equipment and stage operations to service their local contracts, including services to the City; and WHEREAS, City Staff has identified an area at the old Corporation Yard located at 707 F Street that is suitable and currently not being utilized by the City; and WHEREAS, TruGreen has offered to lease the site for one year with an additional one- year option in exchange for servicing their City Contract at no charge to the City, while insuring and indemnifying the City from liability arising from their operations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chub Vista does hereby approve the lease with TruGreen LandCare over a portion of City owned property under the terms set forth in the attached Property Lease Agreement. Richard A. Hopkins Director of Public Works Presented by \ \ 6-22 CITY COUNCIL AGENDA STATEMENT -"-If'" ::$ ~ CITY OF .~~ (HULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: 07/21/09, Iteml RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUMMARY VACATION OF A PORTION OF A 33-FT WIDE ALLEY LOCATED BETWEEN BLOCKS 17 AND 18 OF NIAP NO. 598 At'ID DIRECTING THE CITY CLERK TO RECORD ALL DOCUMENTS REQUIRED WITH THE COUNTY RECORDER DEVELOPMENT SERVICES DIRECTOR / DEPUTY CITY MANAGER&{- ~ . CITY MANAGER r 4/STHS VOTE: YES 0 NO [g) SUMMARY The owner of the property described as Blocks 17 and 18 of Map No. 598, located at 1720 Fourth Avenue and 116 Seventh Street, respectively, has requested to the City to vacate the portion of the 33-ft wide alley located between the two lots that has not been used, nor maintained by the City for more than five years. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed action for compliance with the California Environmental Quality Act (CEQA) and has determined that these actions qualify for a Class 5 categorical exemption pursuant to Section 15305 (a) [Minor Alterations in Land Use Limitations] of the State CEQA Guidelines. Thus, no further environmental review is . necessary. RECOMMENDATION That Council adopt resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION The owner of Blocks 17 and 18 in Brimhall's Addition to Otay, Map No. 598, located at 1720 Fourth Avenue and 116 Seventh Street, requested the vacation of approximately 646 ft of an 7-1 Date, Item 07/21/09 Page 2 of 3 alley bounded by his two lots (see Exhibit A for the legal description and Exhibit B for the location of the site). Section 8331 of the California Streets and Highways Code states that City Council may summarily vacate a street or highway if both of the following conditions exist: (a) For a period of five consecutive years, the street or highway has been impassable for vehicular travel; and (b) No public money was expended for maintenance of the street or highway during such period. The alley was created in May 4, 1889, with the same map that created the nearby lots. The proposed vacation of the 33-ft wide alley depicted in Map No. 598 begins at Seventh Street and ends approximately 646 feet to the east. For a period of more than 5 years, the 33-ft wide alley has been impassable for vehicular travel, and is being used as one lot for agricultural purposes. The alley has not been maintained by City crews. Although there is no record that any utility company has ever used the easterly end of the alley, City staff notified the utility companies about the request to vacate portion of the alley. Staff received no objections. In accordance with Section 8335 of the California Streets and Highways Code, Council may summary vacate portion of the alley by adopting a resolution of vacation that shall state all of the following: 1. That the vacation is made under Chapter 4 of the California Streets and Highways Code; 2. The name or other designation of the easement and a precise description of the portion vacated (see Exhibits A and B); 3. The facts under which the summary vacation is made; and, 4. That from and after the date the resolution is recorded, the portion of the alley vacated no longer constitutes a street, highway, or public service easement. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City council and has found no property holdings withm 500 feet of the boundaries ofthe property that is subject of this action. CURRENT FISCAL IMP ACT Staff time costs related to the processing of the summary vacation of portion of the alley will be borne by the Applicant (owner of 1720 Fourth Avenue and 116 Seventh Street). ONGOING FISCAL IMPACT None. ATTACHMENTS Exhibit A: Legal Description of Portion of the Alley to be Summarily Vacated 7-2 Exhibit B: Site Map Prepared bY' Sandra Hernandez, Associate Engineer. Development Services Department J:\Engineer\PERMITS\PV\PV-099_1720 4TH Ave\A 11 J_ Vacation ofAUey.doc 7-3 Date, Item 07/21/09 Page 3 of 3 EXHIBIT "A" THAT CERTAIN 33.00 FOOT WIDE ALLEY ADJACENT TO BLOCKS 17 AND 18 OF BRIMHALL'S ADDITION TO OTAY, IN TIffi CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 598, FILED IN THE RECORDER'S OFFICE OF SAID COUNTY ON MAY 4, 1889, BOUNDED IN TIffi EAST BY A LINE CONNECTING THE SOUTHEAST CORNER OF BLOCK 17 WITH THE NORTIffiAST CORNER OF BLOCK 18 AND BOUNDED IN THE WEST BY A LINE CONNECTING TIffi SOUTHWEST CORNER OF BLOCK 17 WITH THE NORTHWEST CORNER OF BLOCK 18. AREA IS APPROXIMATELY 0.49 ACRES THIS DESCRIPTION WAS PREPARED BY.ME OR UNDER MY DIRECTION a&J~ DENNIS W. GOOD, LS 8084 7-4 EXHIBIT "B" SHEET 1 OF 2 SUMMARY VACATION OF PORTION OF ALLEY BOUNDED BY BLOCKS 17 AND 18 OF MAP NO. 598 MAIN STREET 8lK 1 8LK 16 NE 1/4 OF SE 1/4 OF NE 1/4 OF SECTION 22 ~lK 2 8lK 15 I I /--iJlK-is-- ,TI8S, R2W III !~_E_~~kl_~~.?_+- ---11--- 8LK 3 III ~ \ ~ 8LK 14 It;) 8LK 19 I SE 1/4 OF ~ ~o Ifgl SE 1/4 Of -...... 7- - - -I~ - - - NE1/40F ';P ~ 181 I SECTION 22 ...... "?- 8LK 13 8 8LK 20 T16S, RZW V" '7 IdI ~LK~~ ~ - -:rt- -- 8LK 5 ~ ~ lK 12 I I ~ ~ 8LK 6 0 BlK 11111 ~ .111 o FOURTH AVENUE w Z ::J Z o '" u w '" '" "'30 z'" 0'" i= uf u'" w_ "',.. BLK 21 BLK ZZ _~K~ aLK 27 I o 500 1000 ~ L..L.I I SCALE:: '" = 500' LEGEND: 'f":"",?;;?: ALLEY TO BE VACATED. APPROXIMATELY 21341 SQUARE FEET (0.49 ACRES) NELSON PROPERTY BOUNDARY BRIMHALL'S ADOITION TO OTAY 8LOCK LINES SUBSECTION UNES NOTE: BEARINGS AND OISTANCE SHOWN HEREON ARE RECORD INfORMAll0N PER RECORD Of SURVEY MAP NO. 16369 7-5 EXlITBIT "B" SHEET 2 OF 2 SUMMARY VACATION OF PORTION OF ALLEY BOUNDED BY BLOCKS 17 AND 18 OF MAP NO. 598 NO'08'09"W 33.00' f-- W 1 w a: 1 I 1 I tn 11213141 I I I I I !:: I I I 1 I I I I I I I I 1'720 FOURTH AVENUE I I I 629-030-04 I I I IBLKI17 t I I I I I 51 6 1 7 1 8 I 9 110 I I' I 12113 1 I 1 I I I 1 I I NJ9'5'!51"EI646~07' 1 I 1 I NO'08'05"W 33.00' ':'~::~'::~-~~,:~~,--:'~~.:'~:-',"""~:::'::"~~~::::::~f.!r,,,_~';:.,':..-':::~_-',~:~~~: \0 in ~ ~ N89'51'51"E 646.10' BLK 18 629-030-05 7TH AVENUE. NO ADDRESS '0 o ,..; .., VACATED BY BOARD OF SUPER\1S0RS RESOLU1l0N DATED MAY 13, 1981, AS VAC. 80-39 RECOROED MAY 19, 1981, AS INSlRUMENT NO. 81-154859, O.R. o 200 400 O-t::~ I SCALE: ," = 200' LEGEND: ::.s':::j%-:1~bff~f AllEY TO BE VACAlED, APPROXIMATELY 21341 SQUARE FEET (0.49 ACRES) NELSON PROPERTY BOUNDARY BRIMHAIJ.'S AOD1l10N TO OT A Y BLOCK UNES SUBSEC1l0N UNES NOTE: BEARINGS AND OISTANCE SHOWN HEREON ARE RECORD INFORMA1l0N PER RECORD OF SURVEY MAP NO. '8369 7-6 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUMMARY V ACA TION OF A PORTION OF A 33-FT WIDE ALLEY LOCATED BETWEEN BLOCKS 17 AND 18 OF MAP NO. 598 Ai'lD DIRECTING THE CITY CLERK TO RECORD ALL DOCUMENTS REQUIRED WITH THE COUNTY RECORDER WHEREAS, the owner of Blocks 17 and 18 in Brimhall's Addition to Otay, Map No. 598, located at 1720 Fourth Avenue and 116 Seventh Street, requested the vacation of approximately 646 ft of an alley bounded by his two lots (see Exhibit A for the legal description and Exhibit B for the location of the site); and WHEREAS, the alley was created in May 4, 1889, with the same map that created the nearby lots; and WHEREAS, the proposed vacation of the 33-ft wide alley depicted in Map No. 598 begins at Seventh Street and ends approximately 646 feet to the east; and WHEREAS, for a period of more than 5 years, the 33-ft wide alley has been impassable for vehicular travel, and is being used as one lot for agricultural purposes; and WHEREAS, the alley has not been maintained by City crews; and WHEREAS, Section 8331 of the California Streets and Highways Code states that City Council may summarily vacate a street or highway if both of the following conditions exist: (a) For a period of five consecutive years, the street or highway has been impassable for vehicular travel; and (b) No public money was expended for maintenance of the street or highway during such period NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Chula Vista, under its authority pursuant to Chapter 4, and more specifically Section 8331, of the California Streets and Highways Code, does hereby order the summary vacation of the portion of the 33-ft wide alley bounded by Block 17 and Block 18 in Brimhall's Addition to Otay, Map No. 598, more precisely described in Exhibit A and Exhibit B, attached hereto and incorporated herein by reference as if set forth in full. BE IT FURTHER RESOLVED, that the City Clerk shall cause a certified copy of the resolution of vacat{on, attested by the clerk under seal, to be recorded without acknowledgment, certificate of acknowledgment, or further proof in the office of the recorder of the San Diego County. From and after the date this resolution is recorded, the portion of the alley no longer constitutes street, highway, or public service easement. 7-7 Presented by: Gary Halbert, PE, AICP Development Services Director Approved as to form by: ~/~ Bart Miesfeld p f P67'-( City Attorney 7-8 EXHIBIT "A" THAT CERTAIN 33.00 FOOT WIDE ALLEY ADJACENT TO BLOCKS 17 AND 18 OF BRIMHALL'S ADDITION TO OTAY, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 598, FILED IN THE RECORDER'S OFFICE OF sAiD COUNTY ON MAY 4, 1889, BOUNDED IN THE EAST BY A LINE CONNECTING THE SOUTHEAST CORNER OF BLOCK 17 WITH THE NORTHEAST CORNER OF BLOCK 18 AND BOUNDED IN THE WEST BY A LINE CONNECTING THE SOUTHWEST CORNER OF BLOCK 17 WITH THE NORTHWEST CORNER OF BLOCK 18. AREA IS APPROXIMATELY 0,49 ACRES THIS DESCRIPTION WAS PREPARED BY.ME OR UNDER MY DIRECTION >>~ DENNIS W. GOOD, LS 8084 7-9 EXIllBIT "B" SHEET 1 OF 2 SUMMARY VACATION OF PORTION OF ALLEY BOUNDED BY BLOCKS 17 AND 18 OF MAP NO. 598 MAIN STREET 8LK 1 8L1< 16 NE 1/4 Of SE 1/4 Of NE 1/4 Of SECTION 22 ~LK 2 8L1< 15 I I " BLI< 15 "Tl8S, R2W Ij I /?J~.S?!i_S~.?_+- ---H--- 8LK 3 I I I "(5) \ ~ 8LK 14 It;;I 8LK 19 I SE 1/4 OF ~ ~o I~I SE 1/4 OF -"" """l?: -- - -1"'1 - - -- NE1/40F \~ <::> 8 I SECTION 22 ,... ;z. 8LK 13 I~I BLI< 20 115S, R2W I'j) Idl ~K~~ 7.L _ _ILL _ _ ?: I'j) II i 8LK 5 ~ ~ LI< 12 I I ~ ~- I1T1 BLK 6 0 """l?:8LK 11 III ~ FOURTH AVENUE w Z ::J Z o '" u w ~ .., N'" ZN 0'" i=vi u'" w_ ~~ 8LK 21 _~K~ 8LK 27 I BLK 22 o 500 1000 ~ I SCALE: ," = 500' LEGEND: ""2"%'""1 ALLEY TO 8E VACATED. APPROXIMATELY 21341 SQUARE fEET (0,49 ACRES) NELSON PROPERTY 80UNDARY 8R1MHALL'S ADDITION TO OlAY 8LOCK UNES SUBSECTION UNES NOTE: BEARINGS ANO DISTANCE . SHOWN HEREON ARE RECORD INfORMATION PER RECORD OF SURVEY MAP NO. 18369 7-10 EXHIBIT "B" SHEET 2 OF 2 SUMMARY VACATION OF PORTION OF ALLEY BOUNDED BY BLOCKS 17 AND 18 OF MAP NO. 598 . NO'OS'09"W 33,00' f- I I I I I I I I ill I 11720 FOURTIi AVENUE I I I ill 629-030-04 I I 0:: 1 I 1 I I I BLKI17 I I 1 I I I tn 1 I 2 I 3 I 4 I sl 6 1 7 I 81 9 110 111 1 12113 :r: I I I I I I I I I I I I I l::: I I I I NJ9'srlsnI646:0r! I I I NO'08'OS"W 33,00' ___~_'_" ;c,-~.""""~ in 1n 2 ~ N89,s,'S1"E 646.10' BLK IB 629-030-0S 7TIi AVENUE. NO ADDRESS b o ,.; '" VACATED BY BOARD OF SUPER;tSORS RESOLUllON OATED MAY 13, 1981, AS VAC. BO-39 RECORDED MAY 19, 1981, AS INSTRUMENT NO. 81-1S48S9, O.R. o 200 400 ~~O- I SCALE: ,. = 200' LEGEND: "i'k;;;'",," ALLEY TO BE VACAlID, APPROXIMATELY 21341 SOUARE FEET (0.49 ACRES) NELSON PROPERTY BOUNDARY BRIMHAlL'S ADDIllON TO OT A Y BLOCK UNES SUBSECllON UNES NOTE: BEARINGS AND DISTANCE SHOI\N HEREON ARE RECORD INFORM AlleN PER RECORD OF SURVEY MAP NO. 18369 7-11 CITY COUNCIL AGENDA STATEMENT '\11-- :$: <::: CITY OF '-~ (HULA VISTA JUL Y 21, 2009, Item~_ ITEM TITLE: ADOPTION OF AN INTERIM URGENCY ORDINANCE PLACING A MORATORIUM ON THE LEGAL EST ABUSHMENT AND OPERA nON OF MEDICAL MARIJUANA DrSPENSARlES WITHIN THE CITY OF CHULA VISTA CITY ATTORNEY'S OFF1CESc.V"- CITY ATTORNEY'S OFFICE 7,5'0-/ SUBMITTED BY: REVIEWED BY: 4/5THS VOTE: YES I X I NO D SUMMARY Califomia Government Code California Government Code Section 65858 permits a city to adopt an intenm urgency ordinance to protect the public safety, health, and welfare, and prohibiting any uses that may be in conf1lct with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering or studying or Intends to study withm a reasonable time. Adoption of tbe interim ordinance does not require a public hearing; however, it requires a four-fifths vote by the City Council. It' adopted, the moratorium becomes effective immediately and lasts for 45 days. Existing City codes, including the Zoning Code, imphcitly prohibits the establishment of medical marijuana dispensaries. California case law provides for the position that if a use is not specifically addressed by a zoning ordinance it is prohibited. Moreover, because marijuana use and possession is illegal under federal law, the dispensing nf manjuana, medical or not. is an "unlawful trade" prohibited by CYMC 5.02.200. The opcl'ation of medical marijuana dispensaries and the lack of express regulation concernmg location,' establlshlllCllI or operatioli may lead to a proliferation of dispensaries and the inability of the City to l'egulate these establishments In a manner that will protect the general public, homes, and businesses adjacent to and near such buslllesses, and the patients or clients of such establishments. In additIOn, based on the adverse secondary Illlpacts experienced by other cities and the lack of an express regulatory program in the City regarding the operation of medical marijuana dispensaries, it is reasonable to conclude that negative effects on the public 8-1 JULY 21, 2009, Item~ Page20f5 health, safety, and welfare may occur in the City as a result of the proliferation of medical marijuana dispensaries. The establishment of medical marijuana dispensaries before appropriate procedures and regulations are enacted has the potential to cause adverse impacts to surrounding development and risks to the public health, safety, and welfare of the City's residents and the general public and it is, therefore, urgent that the City have the opportunity to consider whether such facilities should be allowed in the City and, if so allowed, to develop regulations goveming the location and operation of medical marijuana dIspensaries to prevent adverse impacts to the publiC health, safety and welfare. The intel'im urgency Ordinance bans medical marijuana dispensaries whlle the City studies whether medical mal'ijuana dispensaries expressly should be pellllitted and if so permitted, the appropriate regulations for such uses, within a reasonable time. Given the time required to undertake the necessary study and planning, it is necessary that this interim urgency Ordll1ance be ll11mediately enacted to ensure that no medical marijuana dispensaries that may be in conflict with any state or tederal law, or the City's general plan, zoning, and/or development policies are penllitted in the interim. ENVIRONMENTAL REVIEW This proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEA W) and it has been detenllined that the activity is not a "Project" as defined under Section 15378 of the state CEAQ Guidelines because it will not result in a physical chance in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to the CEQA, Thus, no environmental review is necessary. RECOMMENDATION AdoptIon of an interim urgency ordinance placing a moratorium on the legal establishment and operation ofmedica\ marijuana dispensaries. 2. Direct the staff to study the applIcable legal and land use issues and develop appropriate zoning and licensing guidelines or regulations goveming such uses, and/or prohibitIon of such uses if that IS authorized by law and desired by the Council. BOARDS/COMMISSION RECOMMENDATION N/A DISCUSSION Compassionate Use Act and the Medical Mariluana Program in 19%, Colifol11ia voters approved the Compassionate Use Act ("CUA"), which allows a patient or a patIent's primary caregiver to possess or cultivate marijuana for personal medical purposes. The intent of the CUA is to allow seriously ill persons to cultivate and possess a sufficient amount of marijuana for their own approved 8-2 JULY 21, 2009, !tem~ Page 3 of5 medlc"l purposes. and to allow primary caregivers the same authonty to act on behalf of those patients too ill to do so. In January 2004, the Legislature of the State of Califomia enacted Senate Bill 420 (the "Medical Marijuana Program"). coditied as California Health and Safety Code S 11362.7 et seq., which requires the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification Girds to qualified patients and primary caregivers, and prohibIts the arrest of a qualified patient or a primary caregiver with a valid identification card for the possession, transportation, delivery, or cultivation of medical marijuan". One purpose of the CUA and the Medical Marijuana Program is "to encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of manjuana to all patients in medical need of marijuana." Neither the federal nor the state government has implemented a specitic plan "to provide tar the safe and affordable distribution of manjuana to all patients in medical need of marijuana," leaving cities with a lack of direction about how the CUA is intended to be implemented, paliicularly 1\1 regard to distribution of medical marijuana through dispensaries. Medical Maniuana under Federal Law Medical Imrijuana is not recognized under federal law, whIch prohibits the manufacture, sale, and distribution ofmarijuancl. In addition, possession of marijuana is illegal, and there is no medical necessity defense to federal criminal violations. The main goveming federal statute is the Controlled Substances Act ("CSA"). The goal of enacting the CSA was to combat the recreational dmg abuse and curb drug trafficking. The CSA categorizes all controlled substances into five schedules based on their accepted medical uses, the potential for abuse, and the psychological effects on the body. Marijuana is classified as a "Schedule I" dmg, which means it has a high potential for abuse. As a result the manufacture, distribution, or possession of marijuana is a criminal offense c1l1d the ClIA and Medical Manjuana Program do not exempt marijuana manufacture, sale, possession, and distnbution from prosecution under federal law. Oualified Patiellls AssociatIOn v. Citv of Anaheim As indicated above, a conflict exists between federal and state law as to the legality of marijuana tar medical puq.Joses and the interpretation of state law concerning whether cities may prohibit the establishment of medical marijuana dispensaries. This contlict is demonstrated in the pending case of Qualified Patients Association v City 01' Anaheim. In thiS case, a medical manjuana group consisting of approximately 50 members has challenged the City of Anaheim's ban against medical marijuana dispensaries on the basis that the ban contravenes the ClIA, the Medical Marijuana Program, and violates Civil Code Section 51 ("Unruh Civil Rights Act"). The medical marijuana group's argument is that they are a "primary caregiver" under the ClIA and are allowed to operate medicalmanjuana dispensanes. The City of Anaheim argues that the sale of maruuana is illegal under federal law, states do not have the authority to override federal law, and a dispensary is not a "primary caregiver" under the state law; therefore, the medical marijuana group is prohibited under federal and state law from dispensing an illegal drug and Anaheim's ordinance should be upheld. The City of Anaheim prevailed in the Orange County Superior Court, and Qualified Patients Association appealed The case is now pending in the Calitarnia 4th District Court of Appeals, with oral argument set tar September. It is expected that the Courts will settle this cont1ict in late 2009, or at least shed some guidance on the Issue of banning marijuana dispensanes so cities will better understand how to proceed and enact plannil1g regulations. 8-3 mLY 21, 2009, Item~ Page40f5 Medical tvbl'iiuana Dispensaries and Secondary Effects Medical marijuana dispensaries have been established in numerous locations in California, and as a consequence, local agencies have reported negative secondary effects on the community, including, illegal drug acti vity and drug sales 111 the vicinity of dispensaries; robbery of persons leaving dispensaries; driving under the influence of a controlled substance by persons who have obtained marijuana from a dispensary; persons acqUiring manjuana from a dispensary and then selling it to a non-qualified person; burglaries and robberies; and an increase in vacancies in the commercial areas in the vicinity of such businesses. The California Police Chiefs Association has compiled an extensive repol1 detailing the negative secondary effects associated with medical marijuana dispensaries. Other Cllles Local govel11ments have approached the issue of medical marijuana dispensaries in several ways. Some jurisdictions have adopted ordinances that set forth regulations governing the number, location, or operating standards for these businesses. The City of Oakland permits the establishment of medical marijuana dispensaries, but limits the total number. In addition, 111 Oakland there will be a special election on July 21, 2009, in which one of the four proposed measures is to institute a new tax on medical marijuana dispensaries ($ I S for every $1,000 of business sales). The City of Martinez has an ordll1ance that pe1111its and regulates medical mariJuana dispensaries within identified commercial distncts, In contrast, while the City of San Diego has an ordinance that allows adult marijuana patients with the approval of a San Diego County doctor to keep up to 1 pound of marijuana and grow up to 24 plants, and permits primary caregivers to keep up to 2 pounds of marijuana and grow up to 48 plants for as many as four patients, it has not adopted an ordinance conceming medical marijuana dispensaries. There are other cities that have prohibited the establishment of medical marijuana dispensanes. These cities Include, but are not limited to, Anaheim, Manhattan Beach, Temecula, Santa Ana, Mlmieta, Redondo Bench, Costa Ivlesa, and Corona. Roughly 100 California cities have adopted temporary or pennanent bans. In addition, the County of San Diego has recently voted to draft an ordll1ance making for-profit, medical marijuana dispensaries illegal in the unincorporated areas of the county. Several cities have adopted zoning moratoriums that prevent establishment of medical marijuana dispensaries pending further study in determination of whether and how they will regulate these facilities. Examples of some of these cities with moratoriums are: City of Monterey Park, Hemet, Santa Cmz, Laguna Beach, and Oceanside. Lastly, other jurisdictions, such as Vista and Fresno, have relied on theIr existing Development Code and/or Municipal Code to prohibit marijuana related land uses without passing additional regulations. Current Inquines and Business License Applications Staff has received Inquiries from medical marijuana providers interested in establishing medical marijuana dispensaries Currently, the Chula Vista Zoning Code does not expressly authorize such uses. Furthermore, selling medical marijuana is an "unlawful trade" under federal law, and therefore medical marijuana dispensaries are implicitly prohibited. 8-4 JULY 21, 2009, Item~ Page 5 of5 DECISION MAKER CONFLICT StarT has reviewed the declsion contemplated by this action and has detennined that it is not site specific and conseqllently the 500 foot rule found in Califol11ia Code of Regulations section IS704.2(a)( 1) is not appltcable to this decision. CURRENT YEAR FISCAL IMPACT The temporary ban results in no fiscal impact cUlTently. ONGOING FISCAL IMPACT The temporary han results in no fiscal impact clllTently ATTACHMENTS None rreporr.:cI hI'" ChuJ7I.:1:! C HU1I'!{/!1S, Depllfy Cify rlttorney. City Attorney's Office 8-5 ORDfNANCE NO 2009- AN ORDrNANCE ADOPTED AS AN URGENCY MEASURE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, TO PLACE A MORATORIUM ON THE LEGAL EST ABLISHMENT Ai'.'D OPERATION OF MEDICAL MARIJUANA orSPENSARIES WITHrN THE CITY OF CHULA VISTA WHEREAS, in 1996, California voters approved the Compassionate Use Act ("CUA"), which allows a patient or a patient's pnmary care giver to possess or cultivate marijuana for personal medical purposes; and WHEREAS, the intent of the CUA is to allow seriously ill persons to cultivate and possess a sufficient amount of mariJllQna for their own approved medical purposes, and to allow pri mary care givers the same authonty to act on behalf of those patients too ill to do so; and WHEREAS, thereafter, the Legislature of the State of Califomia enacted Senate Bill 420 (the "Medical Marijuana Program"), coditied as Caltfornia Health and Safety Code S 11362.7 et seq., which requires the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and primary care givers, and prohibits the arrest of a qualitied patient or a pnmary caregiver with a valid Identification card for the possession, transportation, delivery, or cultivation of medical Illarij Llana; and WHEREAS, one purpose of the CUA and the Medical Marijuana Program is "[tJo encourage the federal and state governments to implement a plan to provide for the safe and aFrordable distnbution of marijuana to all patients in medical need of marijuana;" and WHEREAS, neither the federal nor the state government has implemented a specific plan "to provide tor the safe and affordable distribution of man juan a to all patients in medical need of marijuana," leaving cities with a lack of direction about how the CUA is intended to be Imp lcmented, particularly in regard to distribution of medical marijuana through dispensalies; anel WHEREAS, medical marijuana dispensaries have been established in some locations in Call rornia, and as a consequence, local agencies have reported negative secondary effects on the commul1lty, including, illegal dntg activity and drug sales in the vicinity of dispensaries; robbery of persons leaving dispensaries; driving under the influence of a controlled substance by persons who bave obtained marijuana from a dispensary; persons acquiring marijuana from a dispensary and then selling It to a non-qualified person; burglaries and robberies; and an increase in vacancies in the commercial areas in the Vicinity of such businesses; and 8-6 O,-dlllance 2009- Page 2 WHEREAS, the California Police Chiefs Association has comp,led an extensive report detailing with the negative secondary effects associated with medical marijuana dispensaries; and WHEREAS, a conflict exists between federal and state law as to the legality of marijuana for medical putvoses and the interpretation of state law concerning whether cities may prohibit the establishment of med,cal marijuana dispensaries; and WHEREAS, this conflict is demonstrated in the pending case of Qualified Pat,enls !/sSIJcwliol/ v. Cilv of AI/aheim: and marijuana dispensaries on the basis that the ban contravenes the CUA, the Med,cal Marijuana Program, and violates Civil Code Section 51 ("Unruh Civil Rights Act"), and WHEREAS, the medical marijuana group's argument is that they are a "primary care gIver" under the Compassionate Use Act and are allowed to operate medical marijuana dispensaries. whereas the City of Anaheim argues that the sale of marijuana is illegal under federal law and states do not have the autho,-ity to ovelTide federal law, and a dispensary is not a "primary caregiver" under the state law; therefore, the medical marijuana group is prohibited Linder federal and state law from dispensing an illegal drug and Anaheim's Ordinance should be upheld; and WHEREAS, the City of Anahell11 prevailed in the Orange County Superior Court, and Qualified Patients Association appealed; the case is now pending in the California 4'h DIstrict COLIn of Appeals; and WHEREAS, California cities expect that, with the currently pending appeal of Qualified Palicl/ts Associatiol/ v. Cilv of Anaheim, the COl1l1s will settle this conflict in late 2009, or at least shed some guidance on the issue of banning marijuana dispensaries so cities will better L1nderstand how to proceed and enact planning regulations; and WHEREAS, the City of Chula Vista has not adopted mles and regulations specifically applicable to the establishment and operatIon of rnedicalmarijuana dispensaries and the lack of sLlch controls may lead to a proliferation of dispensaries and the inability of the City to regulate these establIshments in a manner that will protect the general public, homes, and businesses adjacent to and near sLlch businesses, and the patients or chents of such establishments, and WHEREAS, the establishment of medIcal marijuana dispensaries before appropriate procedures and regulatiol1s are enacted has the potential to cause adverse impacts to slJn'ollndmg development and risks to the public health, safety, and welfare of the City's residents and the general publIC and it is, therefore, urgent that the City have the opporhmity to consider whether sllch faciltties should be allowed ot' prohibited in the City and, if so allowed, to develop regulations governIng the location and operatlOn of medical marijuana dispensaries to prevent 8-7 Ordinance 2009- Page] adverse Impacts to the public health, safety and welfare that may result from unregulated pldccment and operation of such uses; and WHEREAS, the City intends to undertake a study of whether medical marijuana dispellsaries should be pernlitted, and if so pel1TIltted, the appropriate regulations for such uses, within a reasonable time; and, WHEREAS, given the time required to undertake the necessary study and planning, it is necessary that this ll1tenm Ordinance be Immediately enacted to ensure that no medical marijuana dispensaries that may be In conflict with any state or federal law, or the City's general plan, zoning, and/or development policies are permitted in the interim; and WHEREAS, based on the adverse secondary impacts experienced by other cities and the lack of any regulatory program in the City regardll1g the establishment and operation of medical manjuana dispensaries, it is reasonable to conclude that negative effects on the public health, salety, dnd welfare may occur in the City as a result of the proliferation of medical marijuana dispensaries and the lack of appropl'iate regulations governing the establishment and operation of sllch facilities; and WHEREAS, the City Council now desires to adopt this interim Ordinance as an urgency orclinance, effective immediately, and prohIbit the establishment of medical manjuana dispensaries, as defined hereafter, In any zone of the City of Chula Vista pursuant to the dllthonty set forth in Califomia Govemment Code Section 65858, The City COLll1cil of the City of Chula Vista, California, DOES HEREBY ORDAIN as follows. SECTION I. The City COllncil finds that the facts set,forth in the Recitals of tl1\S Ord Illance are trlle and con'ect. SECTION 2. For purposes of this Ordinance, "medical marijuana dispensary" or "dispensary" means any facility or location, whether fixed or mobile, where medical marijuana is made available to or distributed by or distributed to one (1) or more of the following: a primary caregiver, a qualified patient, or a patient with an identification card, All three of these teons are identified in stnct accordance with Cali fomia Health and Safety Code Section 11362.5 et seq. A "medical mariJuana dispensary" shall not include the following uses, as long as the location of such uses is otherwise regulated by this code or applicable .law, a clinic licensed pursuant to Chapter I DiviSIOn' 2 of the Health and Safety Code, a healthcare facility licensed pursuant to Chapter 2 Division 2 of the Health and Safety Code, a facility licensed pmsuant to Chapter 2 Dlvision2 of the Health and Safety Code, a residential care facility for persons with chronic life- threatening illnesses licensed pursuant to Chapter 3,01 of DiviSIOn 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of DIvision 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to 8-8 Ordinance 2009-_ Page 4 Chapter Sot' Division 2 of the Health and Safety Code, as long as such use complies strictly with applicable law, including but not limited to, Health and Safety Code Section 11362.5 et seq. SECTION 3. There is a current and immediate threat to the health, safety and welfare of the citizens of the City of Chula Vista if a medical marijuana dispensary locates in the City prior to the completion of the comprehensive report addressing appropriate rules and regulations of same. For the period of this Ordinance a medical marijuana dispensary shall be considered a prohibited use in any zoning district of the City, even if located within an otherwise pell11itted use No pemlits or authorizations for a medical marijuana dispensary shall continue to be issued while this Ordinance is in effect. SECTION 4. The City Council finds that this Ordinance is not subject to environmental reView under the California Environmental Quality Act pursuant to Title 14 of the Caltfornia Code ot' Regulations (CEQA Guidelines) Section 15060(c)(2) (the activity will not result in a direct or reasonable foreseeable indirect physical change in the environment) and Section 15060(c)(3) (the activity IS not a project as defined in Section 1537S) because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 5. City staff is directed to study the applicable legal and land regulations gC1l't'ming such uses, and/or prohibition of such uses if that is use issues and develop appropriate Wiling and licensing guidelines or authorized by law and desired by the City COLmci!. SECTION 6 The City Council declares this Ordinance is necessary as an urgency measme to preserve and address existing and immediate threats to the public health, safety, and welfare. This interim urgency Ordll1ance is adopted pursuant to Section 65858 of the California Govemment Code. SECTION 7. Effective Date. This Ordll1ance is hereby declared to be an urgency measure pursuant to Government Code Section 36937, and shall take effect immediately upon its adoption. The City Clerk shall certify passage and adoption of the Ordinance by not less than a four-tifths (4/5) vote of the City Council, and shall make a minute of the passage and adoption in the records of the proceedings of the City Council at which thIS Ordinance is passed and adopted. SECTION 8. Expiration. TI115 Ordinance shall be of no further force or effect upon the expiration of forty-five (45) days from the date of adoption, unless extended in accordance With Government Code Section 65858. SECTION 9. Severability. If any section, sentence, clause, or phrase of this Ordinance is for ,lilY reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordll1ance. The City Council hereby declares that it would have passed this Ordinance and adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the 8-9 Ordinance 2009-_ Page 5 bct that anyone of more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 10. Celiification. That the City Clerk is hereby directed to certify to the passage of this Ordinance and to cause the same or a summary to be prepared in accordance with Go\el"l1ll1ent Code Section 36933, to be published one time within 15 days of its passage in a ne\vspaper of general circulation, printed and published in the City of Chula Vista. Presented by Approved as to fotTn by ~C<:~ '/ Deputy City Attorney Bart C. Miesfeld City Attorney 8-10 CITY COUNCIL AGENDA STATEMENT ~ \ 'f:.. CITY OF .J_ (HULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: BACKGROUND "Item No.: 9 Meeting Date: 7/21109 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WANING THE FORMAL BIDDING PROCESS AND APPROVING A THREE-PARTY AGREEMENT BETWEEN THE CITY OF CHULA VISTA, RECON (CONSULTAt'\lT), At'\ID OTAY LAND COMPANY LLC (APPLICANT), FOR CONSULTING SERVICES RELATED TO THE PREPARATION OF AN ENVIRONMENTAL IMPACT REPORT (EIR) FOR THE UNfYERSITY VILLAGES GENERAL PLAN AMENDMENT, AND OTAY RANCH GENERAL DEVELOPMENT PLAN AtYfENDMENT, . AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT / -Hf-" DEPUTY CITY MANAGE~ECTOR OF DEVELOPMENT SERVICES crrYMANAGER~ 4/5 TH VOTE REQUIRED YES NO X Staff recommends that this public hearing be continued to the August 4,2009 City Cotmcil meeting at4p.m. 9-1 /fiJDi1?o;t!/l-L INFO /T&1? 1//1- ~ \ ft... Mayor and City Council ~ City Of Chula Vista ~ 276 Fourth Avenue -------- Chula Vista, Ca 91910 CHOIA ~'STA 619.691.5044 - 619 476.5379 Fax M ~ M 0 ~~~W~*lf,.!li~~~qr~iV~~'i!rd\l:J'I!:~~;;~iJJl11iil~'~\;f,1flf~~~~~4FiR'.[@l~nJ.ijl Tuesday, ,July 21, 200g ~U~t'~~~~~ ~ The Honorable Mayor & City COlll1dl City Manager, City Clerl{\ counCilmember.JOhn~l1~dt/az C./. . . Status of Councll Alde ~/nng COl~cllmen~Jl1.c.Q~ployment to Jraq / "cc..,'ll!. i .!},..".~y; ,I '" ,,[;&?~l;;;;'1Ji~(5.f\~~' ; TO: CC: FROM: SUBJECT: Coul1cilmember ,John McCann has requested that, during his absence due to military deployment to Jraq, supervisory authority for his Council Aides, Brian Pepin Rnd Jess McDevitt, be transferred to the City Manager. For example, the City Manager shall have the authority to sign off on the Council Aide's hours worked for each pay period Rnd shall have the authority to sign off on orders for letterhead and other oHice supplies, as recommended by the Council Aide. /}-f)P 1T10AJ/l-L (NR>14J/f7?() tU I~ 11/1 OFFICE OF THE CITY ATTORNEY CITY OF CHULA VISTA MEMORANDUM DATE: July 21, 2009 SUBJECT: Legal Memorandum Concerning Issues Relating To A Councilmember's Military Service Questions Councilmember McCann officially reported to the Council and City Attorney that he has been ordered to deploy to Iraq. Council member McCann will start his military leave on July 21,2009 and although he has no return date as yet, it is beleived the military may have him serving in Iraq for as long as 350 days. Councilmember McCann has indicated that it is his intent to resume his Council position upon his return from Iraq. . The military leave of Council member McCann raises several legal issues. This memorandum will address three of the most pertinent issues as noted below. 1. During his leave from the City in order to enter active duty with the armed services of the United States, will Councilmember McCann's council seat be considered a "vacancy", an "excused absence", or something else such as a prolonged military absence? 2. Upon his discharge or release from active duty will Council member McCann be entitled to be reinstated and returned to office? 3. During Councilmember McCann's absence, may the City Council fill his seat, and, ifs~, what is the process for doing so? City Attornev's Summary The complicated analysis of issues surrounding Councilmember McCann's military leave involves federal, state and local law. In this matter, controlling state law provides that Councilmember McCann's seat may not be considered "vacant" during his leave and under the 1 City of Chula Vista Charter his leave is not classified as a temporary "excused absence" as in the case of a transitory illness. His prolonged military absence entitles Councilmember McCann to complete any remaining time left of his current elected Council seat upon his return from service. The City Charter is silent as to appointment of an interim replacement as a result of a military prolonged absence. The California Military and Veteran's Code addresses the issue and allows for a replacement for the remainder of the Councilmember'sterrn, or until the Councilmember returns, whichever occurs first. The City Council may choose to leave the seat unfilled during Councilmember McCann's military duty. Background In a March 2002 primary, the people of the City of Chula Vista elected John McCann to serve as one of five members of the Chula Vista City Council. His term began in December 2002, when he was officially sworn into office. Following his first term, Councilmember McCann ran for a second term in office. Successful in his bid for election, he began his second and current term, in December 2006. This current term extends until December 2010, at which time, he may not run for a third term in the City Council. Councilmember McCann is also a lieutenant in the Navy Reserves. During a time of war, members of reserve units are frequently called for duty. As has occurred with other reserve members, Councilmember McCann recently received orders to deploy to Iraq for active duty. He is expected to deploy beginning on July 21, 2009 and his tour of duty is anticipated to last approximately one year. Depending on the date of his release or discharge from active duty, it is anticipated there may be several months remaining in his current term. Analvsis I. "Vacancy" The City Charter of the City Of Chula Vista ("Charter") generally controls on questions related to the absence of a Councilmember from City Council meetings. Except in the case of absences that are expressly permitted by Council, a councilmember's office "shall become vacant" following four (4) or more consecutive absences from regularly scheduled meetings. (Charter Section 303, emphasis added.) As the word "shall" is a word that mandates an outcome rather than one that grants discretion (i.e. "may"), unless other federal or state law controls, the office would be per se "vacant" pursuant to the Charter upon the 4a` such absence. The Charter, however, does not control if the state has preempted local action. (Sherwin- Williams Co. v. City of Los Angeles, (1993), 4 Ca1.4th 893.) Preemption occurs when the local legislation conflicts with state law. (Id.) California Military and Veterans Code ("Military and Veterans Code") Section 395.8 specifically addresses the absence of city officers leaving employment to enter active service with the armed forces. The Military and Veteran's Code applies to "any officer, elective or otherwise, who leaves or shall have left the service of any city in order to enter upon active service with the armed forces of the United States." 2 Military and Veterans Code provides in pertinent part at section 395.8: "The office from which such officer absents himself to enter upon active service with the armed forces shall not be considered to be vacant..." (Id., emphasis added.) Here, local legislation conflicts with state law: the local law considers the seat "vacant", while state law prohibits the seat from being declared "vacant." As a conflict exist, state law will in this instance preempt local law. Thus, regardless of how long a councilmember is deployed, provided his/her current term does not expire during the absence, the seat shall not be declared "vacant". As a result, any language in the Charter describing the process for appointment or election related to vacant seats, or as a result of a "vacancy", simply do not apply in this limited situation. Additionally, City Council has the ability to excuse a councilmember's absence from meetings. (Charter Section 303.) An excused absence is not a vacancy. Where absences have been excused, four or more absences would not result in vacancy. In order to excuse absences, Council must express, either prior to or contemporaneously with the absence, its permission for the councilmember to be absent. (Id) The Charter speaks only to the Council being required to grant permission for any "temporary illness of the requesting councilmember disabling him or her from attendance at such meeting." (Id., at section 303.) Where absences are for illness that disable a councilmember from attending a hearing the Council "must" grant permission. (Id.) The Charter provides no language for filling a seat under an excused absence. In the current situation, councilmember McCann will absent himself to enter upon active service with the armed forces. Pursuant to the Military and Veterans Code, his office shall not be declared "vacant." Also, the Council may excuse his absences by expressing in the minutes their intent to do so. Either method would result in the same outcome: the seat will not be considered "vacant." It appears to simply be a prolonged military absence. II. Reinstatement to Office The issue of whether a deployed councilmember is entitled to be reinstated to office upon return is also explicitly addressed in the Military and Veterans Code. Section 395.8 in relevant part states: "Any officer, elective or otherwise, who leaves or shall have left the service of any city... shall be reinstated and restored to his office upon his discharge or release from such active service with the armed forces; provided, such discharge or release is prior to the expiration of the term for which he has been elected or appointed." (Emphasis added.) As earlier stated, councilmember McCann has indicated a deployment of approximately one year. When he returns from active duty, if the time estimate is correct, approximately five (5) months will remain in his term as a councilmember. Provided his release from service occurs prior to the end of his term, the Military and Veterans Code requires that, if he so desires, he be reinstated to office and allowed to serve the remainder of his term. III. Temporary Council Appointment A. Charter Control over Appointment. The issue remains whether the Council has authority, and a process, for the appointment of a temporary or interim replacement while Councilmember McCann is serving a prolonged military absence. The provisions of California Constitution article XI, section 5 establishes a charter city's sovereignty over its "municipal affairs". Therefore, the City Charter acts as a local constitution for the City of Chula Vista. Article XI, section 3, subdivision (a) of the State Constitution provides that, "upon the voters' ratification and the Legislature's approval of a city ... charter, the charter shall become effective and `supersede ... all laws inconsistent therewith. "' (Quoting Harman v. City and County of San Francisco (1972), 7 Cal.3d 150, 161.) Charter cities have plenary authority to deal with its municipal officers and to conduct elections. (Cal. Const. Art XI, section 5(b).) The Charter generally is the supreme law of the City. However, as noted above, there are situations where the Charter is subject to conflicting provisions in the United States and California Constitutions, and to preemptive state or federal law. (Id.) The Chula Vista City Charter has no provisions discussing temporary replacements for a Council seat not considered vacant. In certain states, charters are considered a grant of authority. (See City of Shreveport v. Chanse Gas Corp. (2001), 794 So. 2d 962.) There is an argument that where there is no grant of authority in an area, the city may not act in that regard. Chula Vista's Charter section 303, entitled "Vacancies" discusses anticipated vacancies as well as unanticipated vacancies. In this section, depending on the timing of a vacancy, possible methods of filling a vacated seat range from holding a special election to appointing a replacement or leaving the seat vacant for the remainder of the term. (Id.) However, as already indicated, the Charter of the City of Chula Vista has no provision related to an interim replacement for a seat not considered "vacant." (See Charter Section 303.) The absence of such a provision some could argue may indicate that the City would have no authority to appoint an interim councilmember. In other words, here, the argument would follow that since the Chula Vista Charter is silent on the issue of an interim replacement, the Council lacks any grant of authority to make such an appointment. However, in other states, courts have established that charters are not grants of authority, but are only limitations on authority. (City of Glendale a Trondsen (1957), 48 Ca1.2d 93; Lawrence v. Cleveland (1970), 13 Cal.App.3d 127.) Where a charter acts as only a limitation of authority, it permits a municipality to exercise any and all powers consistent with the governance of the city without a specific grant of authority from the state. 4 In California, there is supporting case law and other legal authority that charters in this state act as instruments of limitation on the broad powers of charter cities over municipal affairs, rather than grants of authority. (City of Glendale v. Trondsen (1957), 48 Ca1.2d 93; Lawrence v. Cleveland (1970) 13 Ca1.App.3d 127.) A municipality in the state of California can, therefore, employ any and all powers connected with the government of the municipality. The Charter of the City of Chula Vista under section 200 addresses City powers and appears to reinforce the legal doctrine that our Charter is one of restrictions and limitations to grants of authority, as follows: "The City shall have the power to make and enforce all laws and regulations in respect to municipal affairs, subject only to such restrictions and limitations as may be provided in this Charter..." (Charter Section 200, emphasis added.) As there are no restrictions or limitations related to the appointment of an interim councilmember for a seat not considered "vacant", the nature of the Charter, one of limitation, and the language therein, provides that the City has the authority to take such action. B. State Law. Military and Veterans Code section 395.8 also permits a legislative body, such as the City Council, to appoint an officer to temporarily replace the absent councilmember, as follows: [T]he legislative body or other appointing authority, as the case may be, may appoint an officer to temporarily replace any such officer so absenting himself to enter upon active service with the armed forces. Such temporary officers shall have all of the powers and duties of the office to which he may be temporarily appointed and shall hold said office until the expiration of the term thereof or until the officer returns from service with the armed forces, whichever event first occurs. Though the state code permits the appointment of a temporary councilmember, it does not dictate any particular process by which an appointment should occur. Under the Chula Vista Charter there is no Charter provision spelling out a specific process for appointing a temporary replacement for a seat that is not "vacant." Additionally, there are no local ordinances or policies creating such a process. In situations like this where no state law, Charter provision, local ordinance, or policy provides any guidance or restrictions relating to a process by which a temporary councilmember may be appointed, the issue becomes whether the City Council has any legal authority to create such a process. It appears that the City Charter does generally provide the Council with such authority. (See Charter Sections 200 and 201.) Council has the authority to exercise the power to perform all acts that a municipal corporation "might or could exercise." (Charter Sections 200 and 201.) Creating a process to appoint a councilmember is an act that a municipal corporation "might or could exercise." Thus, it is up to the Council to establish a procedure for the temporary appointment to the seat of a councilmember who has been called to active duty in the armed services. Furthermore, though Military and Veterans Code section 395.8 provides Council authority to appoint a temporary replacement, such an appointment is not mandatory. The language of the statute specifically uses the word "may." (Military and Veterans Code section 395.8.) "May" is permissive. It is not a word of mandate. Additionally, the City has no obligation to appoint a temporary replacement. No Charter section, ordinance, or policy, exists, which addresses temporary appointments of councilmembers. The absence of such a requirement is in direct contrast with the existence of the several mandates to fill a "vacant" seat. (Charter Sections 303(B) and (C).) Charter Section 303(B) requires the filling of a "vacant" seat by special election - "[i]t shall be filled." Charter Section 303(C) provides two methods for filing vacant seats depending on the number of days left in the term. Both are mandates.' Like vacancies, the Charter anticipates extended absences, situations in which Council can excuse a councilmember for an undetermined length of time. (Charter Section 303(A).) In such a situation, language mandating that Council fill the seat is noticeably absent. This contrast between the presence of language requiring that Council fill a seat in the case of vacancy and the absence of similar language when addressing extended, permitted absences is of import. When legislators use specific language to accomplish an act or require an action, the legislators demonstrate their knowledge of how to use such language and also give meaning to the absence of such language. Where such language is excluded from legislation, the presumption is that the legislature intended to exclude it. In the current case, as no mandate is present, the Council is not required to replace the councilmember away on extended leave. Conclusion State law mandates that councilmember McCann's seat shall not be declared "vacant" during his active duty with the armed forces. The law also entitles him to reinstatement to his position as a councilmember, provided he returns prior to the end of his current term. With respect to his absent seat, it is clear the Council may leave the seat empty during councilmember McCann's military leave. Indeed there are some that may argue this Council must leave McCann's seat unfilled because our Charter is silent on the issue of replacement in this situation. There is acounter-argument that state law specifically provides for discretionary replacement and our Charter authorizes a broad grant of power without limitation on the Council to make such an interim replacement. Without any guidance to follow outlined in state law, our Charter, and local laws or policies it would be incumbent on this Council to establish a policy or 6 procedure td adhere to in appointing such an interim replacement. The City Attorney's office is prepared to assist the Council in such a process. T MIESF D SQ. City Attorne City of Chula Vista ~(~ ~ .--. - - - -- """"'---.::.... ~ - - Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO CITY OF CHUlA VISTA ~~~,W>1~~~1'l1'1",,,~~,~_,~~_~_,-,jr.1~ July 16, 2009 TO: FROM: Donna Norris, City Clerk Lorraine Bennett, Deputy City Clerk Sheree Kansas, Records Specialist . Mayor Cheryl COX G..V Jennifer Quijano, Constituent Services Manage(f& Youth Action Council VIA: RE: ~l~~~~Jll.,"&mr~j~~,w~~~~~1l:~"~<fil~~ Mayor Cox would like to recommend Mauricio Lopez for appointment to the Youth Action Council for the 2009 / 2010 year. Please place this item on the July 21, 2009 Council agenda for ratification and schedule the oath of office for the August 4, 2009 Council agenda. Thank you. /lc-- ~(~ ~ .--. - - - -- """"'---.::.... ~ - - Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO CITY OF CHUlA VISTA ~~~,W>1~~~1'l1'1",,,~~,~_,~~_~_,-,jr.1~ July 16, 2009 TO: FROM: Donna Norris, City Clerk Lorraine Bennett, Deputy City Clerk Sheree Kansas, Records Specialist . Mayor Cheryl COX G..V Jennifer Quijano, Constituent Services Manage(f& Youth Action Council VIA: RE: ~l~~~~Jll.,"&mr~j~~,w~~~~~1l:~"~<fil~~ Mayor Cox would like to recommend Mauricio Lopez for appointment to the Youth Action Council for the 2009 / 2010 year. Please place this item on the July 21, 2009 Council agenda for ratification and schedule the oath of office for the August 4, 2009 Council agenda. Thank you. /lc--