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HomeMy WebLinkAbout2009/09/01 Agenda Packet 1fedw 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 REGULAR MEETING OF THE CITY COUNCIL AND THE HOUSING AUTHORITY OF THE CITY OF CHULA VISTA September 1, 2009 4:00 P.M. Council Chambers City Hall - Building 100 276 Fourth Avenue CALL TO ORDER ROLL CALL: CounciVAuthority Members: Bensoussan, Castaneda, McCann, Ramirez, and Mayor/Chair Cox PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY . OATH OF OFFICE FOR NEWLY APPOINTED POLICE CHIEF, DAVID BEJARANO, TO BE ADMINISTERED BY ESPERANZA BEJARANO . OATH OF OFFICE FOR AL SOTOA, BOARD OF ETHICS . INTRODUCTION BY DAVE HANNEMAN, FIRE CHIEF, OF EMPLOYEE OF THE MONTH, RAYMOND SALAZAR, FACILITY AJ\'D SUPPLY SPECIALIST . PRESENTATION BY MARGARET KAZMER, LIBRARY DIRECTOR, OF THE CHOLA VISTA PUBLIC LIBRARY'S SUMMER READING PROGRAM HONOREES FOR 2009 . PRESENTATION BY SAN DIEGO GAS & ELECTRIC OF $375,000 TO SUPPORT THE DEVELOPMENT OF A PARK ON THE WEST SIDE OF CHULA VISTA CONSENT CALENDAR (Items 1-11) The Council/Authority will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Councilmember, a member of the public, or staff requests that an item be removed for discussion. If you wish to speak on one of these items, pleasefill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled Fom the Consent Calendar will be discussed immediately following the Consent Calendar. 1. APPROVAL OF MINUTES of April 28, 2009, May 5, 2009, and May 12,2009. Staff recommendation: Council approve the minutes. 2. ORDlNANCE OF THE CITY OF CHULA VISTA APPROVING AMENDMENTS TO THE GATEWAY CHULA VISTA SPECIFIC PLAN (PCM 00-11) FOR 4.46 ACRES AT THE NORTHWEST CORNER OF THE INTERSECTION OF "H" STREET AND THIRD A VENUE (SECOND READING AND ADOPTION) Adoption of the ordinance amends the existing Gateway Chula Vista Specific Plan, which regulates land use for a 4.46-acre site, in order to allow educational and training uses, modify provisions for temporary and accessory uses, and make other miscellaneous amendments. The 4.46-acre site is located at the Northwest comer of Third A venue and "H" Street. This ordinance was introduced on August 11, 2009. (Deputy City Manager/Development Services Director) Staff recommendation: Council adopt the ordinance. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING THE CONTRACT FOR THE "ROBINHOOD RANCH UNIT II, SEWER PUMP STATION IMPROVEMENTS (SW256)" TO CLEAR SOLUTION ENVIRONEERING, INC., IN THE AMOUNT OF $232,626.50, AND AUTHORIZING THE EXPENDlTURE OF ALL A V AILABLE FUNDS IN THE PROJECT On July 29,2009, the Director of Public Works received sealed bids for this project. The work to be done consists of the removal and disposal of existing improvements, construction of a pump station building facility and wet-well structures. The work also includes all labor, material, equipment, transportation, protection, and restoration of existing improvements necessary for the project. (Director of Public Works) Staff recommendation: Council adopt the resolution. 4 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A GRANT DEED CORRECTORY DEED FOR EXCESS RIGHT-OF- WAY ADJOINING STATE ROUTE 125 DESIGNATED AS SAN DlEGO COUNTY ASSESSOR'S PARCEL NUMBER 595-030-25 AND CALTRANS R/W 33255 FROM THE CALIfORJ\IIA DEPARTMENT OF TRANSPORTATION (CAL TRANS) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A DIRECTOR'S DEED fOR EXCESS RIGHT-Of-WAY ADJOINING STATE ROUTE 125 PARCELS DESIGNATED AS CALTRANS PARCEL NUMBERS DK-32045-01-01, DD-32034-01-02, DD-32113-1 AND DD-32019-03-03 Page 2 - Council Agenda htto :Ilwww.chulavistaca.!:!DV September I, 2009 C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING EASEMENTS FOR ELECTRICAL PURPOSES UPON Al',m ACROSS PORTIONS OF CITY OWNED PROPERTY DESIGNATED AS SAN DIEGO COUNTY ASSESSOR'S PARCEL NUMBERS 595-410-14 (R/W 34495) AND 643- 060-23 (R/W 34494) AS PART OF THE STATE ROUTE 125 PROJECT, AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE ALL DOCUMENTS NECESSARY TO RECORD THE EASEMENT The State Route 125 Toll Road project was approved as a "Design-Build" facility. Due to the final approved geometric alignment of the toll road, off-ramps and on-ramps, and the need to protect established landscaping on local streets, there are some portions of parcels initially anticipated to be a part of State Route 125 that have been deemed by the California Department of Transportation (Caltrans) to be unnecessary for the toll road. Adoption of these resolutions will resolve the remaining right-of-way issues related to the construction of the SR- 125 Toll Road and provide easements for drainage, electrical and utility purposes. (Director of Public Works) Staff recommendation: Council adopt the resolutions. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CI-IULA VISTA AND OTAY WATER DISTRICT FOR JOINT PARTICIPATION TO PREPARE A WASTEWATER RECLAMATION FACILITY FEASIBILITY STUDY City staff has been researching various options available to meet the City of Chula Vista's long-term sewer treatment capacity needs. Constructing a sewer treatment facility in Chula Vista with the ability to treat sewage to current recycled water standards is one option being explored. As a result, the City of Chula Vista and Otay Water District would like to partner in the preparation of a feasibility study analyzing the costs associated with constructing such a plant. The proposed agreement describes the ternlS under which such a feasibility study would be completed. (Director of Public Works) Staff recommendation: Council adopt the resolution. 6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE SUBMITTAL OF APPLICATION(S) TO THE CALIFORNIA INTEGRATED WASTE MANAGEMENT BOARD FOR ALL ELIGIBLE USED OIL AND HOUSEHOLD HAZARDOUS WASTE GRANTS THROUGH JUNE 30, 2012, AND AUTHORIZING AND EMPOWERING TI-IE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO SECURE USED OIL AND HOUSEHOLD HAZARDOUS WASTE GRANT FUNDS AND IMPLEMENT THE APPROVED GRANT PROJECTS Page 3 - Council Agenda httD:/ iwww.chulavistaca.gov September I, 2009 The California Used Oil Enhancement Act (1999) requires the collection offour cents for every quart of lubricating oil sold, transferred, and imported into California from oil manufacturers. All California consumers pay four cents per quart into the fund when they purchase oil. The Act mandates that the California Integrated Waste Management Board (CIWMB) use a portion of the funds to provide block grants to local governments for used oil programs that encourage used oil and oil filter recycling. Per grant application procedures, Council must authorize the submittal of the grant application(s) and authorize and empower the City Manager or designee to execute all grant documents necessary to secure grants funds and implement approved projects. (Director of Public Works) Staff recommendation: Council adopt the resolution. 7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA V[ST A AWARDING A PURCHASE AGREEMENT IN THE AMOUNT OF $[09,174 TO ACTION TURBO REPAIR ($64,082), VALLEY POWER SYSTEMS ($15,082) AND IRONMAN ($30,010) TO INSTALL EMISSION RETROFITS ON E[GHT CITY VEHICLES By State regulation, the City must retrofit a certain number of diesel-powered trucks with exhaust emissions devices each year. The number of retrofits is determined by formula in the regulations. For fiscal year 2009/2010, eight vehicles must be retrofitted with exhaust emissions devices. Quotes were solicited by Purchasing to provide all labor and materials necessary to perform the specified work. Action Turbo Repair, Valley Power Systems and Ironman were the low bidders for certain vehicle types. (Director of Public Works) Staff recommendation: Council adopt the resolution. 8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE CLOSURE OF RANCHO DEL REY PARKWAY BETWEEN TERRA NOVA DRIVE AND DEL REY BOULEVARD FOR THE 30TH ANNUAL ORA.1"\JGE CRATE DERBY FROM 6:00 A.M. ON SA TURDA Y, SEPTEMBER 12, 2009 UNTIL 6:00 P.M. ON SUNDAY, SEPTEMBER 13,2009 AND APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND BONITA VALLEY LIONS CLUB FOR THE DERBY The Bonita Orange Crate Derby Committee of the Bonita Valley Lions Club is requesting permission for a temporary street closure on Rancho Del Rey Parkway on September 12th and 13th, 2009 to conduct its 30th Annual Orange Crate Derby. (Chief of Police) Staff recommendation: Council adopt the resolution. Page 4 - Council Agenda httu:/ I W\\'W.c h u lavi staC3. !lOY September 1, 2009 9. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A TEMPORARY STREET CLOSURE OF PARK WAY FROM THIRD TO FOURTH AVENUES FOR THE PARK VIEW LITTLE LEAGUE HOMECOMING CELEBRATION FROM 3:00 P.M. TO 8:00 P.M. ON FRIDAY, SEPTEMBER 4,2009 The City of Chula Vista is hosting a Homecoming Celebration for Park View Little League team to honor their accomplishments in the 2009 Little League World Series. The celebration will take place at Memorial Bowl, located at 373 Park Way. In order to prepare for the event, the City needs permission to temporarily close Park Way between 3rd Avenue and 4th Avenue from 3:00 p.m. to 8:00 p.m. on Friday, September 4,2009. Staff recommendation: Council adopt the resolution. 10. This item has been pulled from the agenda. Housing Authority Hem 11. RESOLUTION OF THE HOUSING AUTHORITY OF THE CITY OF CHULA VISTA APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF AMENDMENTS TO THE TRUST INDENTURE AND LOAN AND FINANCING AGREEMENT OF THE CITY OF CI-IULA VISTA MULTIFAMILY HOUSING REVENUE BONDS (THE LANDINGS APARTMENTS), SERIES 2007C, AND ANY DOCUMENTS NECESSARY TO CARRY OUT THE PURPOSES OF TI-IIS RESOLUTION On December 28, 2007, the Housing Authority of the City of Chula Vista issued Multifamily Housing Revenue Bonds to finance the development of an affordable 92-unit multifamily residential rental project, known as The Landings in Winding Walk, located at the intersection of Discovery Falls Drive and Crossroads Street in the City of Chula Vista. As a requirement of other financing obtained for The Landings through the State of California's Multifamily Housing Program, amendments to the Bonds are required at this time. (Deputy City ManagerfDevelopment Services Director) Staffrecommendation: Housing Authority adopt the resolution. ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC COMMENTS Persons speaking during Public Commenls may address the Council on any subjecI mailer within Ihe Council '0' jurisdiction that is not lisled as an item on the agenda. State law generally prohibits the Council from discussing or taking aclion on any issue nol included on the agenda, but, if appropriate, Ihe Council may schedule the topic for fi/ture discussion or refer the mailer to staff. Comments are limited to three minutes. Page 5 - Council Agenda htto:I /www.chulavistaca.gov September 1,2009 PUBLIC HEARINGS The following item(s) have been advertised as public hearing(~) as required by 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. 12. CONSIDERATION OF AMENDING THE FlSCAL YEAR 2008/2009 HOUSING AND URBAN DEVELOPMENT ANNUAL ACTION PLAN Council previously approved an amendment of the 2008/2009 Housing and Urban Development Annual Action Plan, to allocate new Neighborhood Stabilization Program (NSP) funds established by Title III of the Housing and Economic Recovery Act of 2008 on November 25, 2008, and appropriated said funds on March 24, 2009. The purpose of the public hearing is to solicit public input on the proposed amendment to the 2008/2009 Annual Action Plan to expand the approved areas of greatest need, to include additional census tracts due to changing market conditions, add a NSP eligible use for the acquisition, rehabilitation, and resale of foreclosed or abandoned properties, and authorizes staff to reallocate funds as necessary. (Deputy City Manager/Development Services Director) Staff recommendation: Council conduct the public hearing and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF TI-IE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE FISCAL YEAR 2008/2009 ANNUAL ACTION PLAN OF THE NEIGHBORHOOD STABILIZATION PROGRAM (NSP) FUNDS TO EXPAND THE AREAS OF GREATEST NEED; ADD A NSP ELIGIBLE USE TO ACQUIRE, REHABILITATE, AND RESELL FORECLOSED OR ABANDONED PROPERTIES; AND AUTHORIZE THE REALLOCATION OF NSP FUNDS AS NECESSARY 13. CONSIDERATION OF AN APPEAL OF THE DETERMINATION OF THE DEVELOPMENT SERVICES DIRECTOR THAT THE PROJECT LOCATED AT 634 SECOND AVENUE (TMP-08-08 SUBDIVISION OF A 23,381 SQUARE FOOT SITE INTO THREE LEGAL LOTS) IS CA TEGOR1CALL Y EXEMPT FROM THE PROVISlONS OF THE CALIFORNIA ENVlRONMENTAL QUALITY ACT PER SECTION 15315 OF THE STATE CEQA GUIDELINES (APPELLANT: SAVE OUR HERITAGE ORGANIZATION) The appellant, Save our Heritage Organization, is appealing the project's categorical exemption per Section 15315 (minor land divisions) of the State California Environmental Quality Act Guidelines. (Deputy City Manager/Development Services Director) Staff recommendation: Council continue the public hearing to the meeting of September 15,2009. 14. CONSIDERATION OF AN EXTENSION OF THE MORATORIUM ON THE LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARlES AND COOPERA.TIVES WITHIN THE CITY OF CHULA VISTA Page 6 - Council Agenda httnJ /www.chulavistaca.!!Qv September 1,2009 At its meeting of July 21, 2009, the Council adopted an interim urgency ordinance placing a 45-day moratorium on the legal establishment and operation of medical marijuana dispensaries in Chula Vista, which expires on September 4, 2009, unless otherwise extended by the Council. Adoption of the ordinance extends the moratorium by 10 months and 15 days, pursuant to Government Code section 65858, which is the only form of extension permitted under this provision. (City Attorney) Staff recommendation: Council conduct the public hearing, adopt the following ordinance, and/or 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: URGENCY ORDINANCE OF THE CITY OF CHULA VISTA TO EXTEND AN INTERIM URGENCY ORDINANCE OF THE CITY OF CHULA VISTA EXTENDING BY 10 MONTHS AND 15 DAYS A MORATORIUM ON THE LEGAL ESTABLISHMENT Ac"lD OPERATION OF MEDICAL MARIJUANA DISPENSARIES AND COOPERATIVES WITHIN THE CITY OF CHULA VISTA PURSUANT TO GOVERNMENT CODE SECTION 65858 (4/5THS VOTE REQUIRED) ACTION ITEMS The ItemM listed in this section of the agenda will be considered individually by the Council and are expected to elicit discussion and deliberation. If you wish 10 speak on any item. pleasefill out a "Request to Speak "'form (available in the lobby) and submit it to the City Clerk prior to the meeting. 15. CONSIDERATION OF MATTERS REGARDING AN INITIATIVE PETITION ENTITLED, "FAIR AND OPEN COMPETITION ORDINANCE" On July 13, 2009, the City Clerk accepted an initiative petition from the proponents of a measure that seeks an amendment to the Chula Vista Municipal Code that would mandate that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. The petition contained the number of valid signatures sufficient to place the proposed measure on the ballot. Elections Code Sections 9114 and 9211 require the City Clerk to certify the results of the examination to the City Council. Further, Elections Code section 9215 requires the City Council to take action on the initiative petition. (City Clerk) Staff recommendation: Council adopt resolutions (A) and (B) set forth below, and take action on item (C) as desired. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE CERTIFICATION OF SUFFICIENCY OF SIGNATURES FOR THE INITIATIVE PETITION ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" B. RESOLUTION OF THE CITY COUNCIL OF TI-IE CITY OF CHULA VISTA APPROPRIATING NECESSARY FUNDS FOR THE CERTIFICATION OF SUFFICIENCY OF SIGNATURES BY THE COUNTY REGISTRAR OF VOTERS ON THE INITIATIVE PETITION ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" (4/5THS VOTE REQUIRED) Page 7 - Council Agenda httn:! /www.chulavistaca.?oy September I. 2009 C. CONSIDERATION OF ACTION ON AN INITIATIVE PETITION, AS REQUIRED BY ELECTIONS CODE SECTION 92 I 5, SPECIFICALLY TAKING ONE OF THE FOLLOWING ACTIONS: (I) Adopt the following ordinance: ORDINANCE OF THE CITY OF CHULA VISTA AMENDING THE CI-fULA VISTA MUNICIPAL CODE TO ADD CHAPTER 2.59, ENTITLED "FAIR At"lD OPEN COMPETITION IN CONTRACTING," MANDATING THAT THE CITY OR REDEVELOPMENT AGENCY NOT FUND OR CONTRACT FOR PUBLIC WORKS PROJECTS WHERE THERE IS A REQUIREMENT TO USE ONL Y UNION EMPLOYEES Or: (2) Adopt the following resolutions, and consider whether a member or members of the Council will submit an argument against the measure: A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CALLING AND GIVING NOTICE OF A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, JUNE 8, 20 I 0, FOR THE PURPOSE OF ELECTING A MAYOR, TWO MEMBERS OF THE CITY COUNCIL; AND A CITY ATTORNEY, AND PLACING AN INITIATIVE MEASURE ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" ON THE BALLOT TO BE CONSIDERED BY THE ELECTORATE AT TI-fAT ELECTION; CONSOLIDATING THE ELECTION WITH THE STATEWIDE ELECTION; AND REQUESTING THE BOARD OF SUPERVISORS OF THE COUNTY OF SAN DIEGO TO PERMIT THE REGISTRAR OF VOTERS TO CONDUCT THE ELECTION B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING NECESSARY FUNDS TO PLACE THE INITIATIVE MEASURE ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" ON THE BALLOT AT THE GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, JUNE 8, 2010 (4/5THS VOTE REQUIRED) Or: (3) Refer the initiative measure to any City agency or agencies for a report pursuant to Elections Code section 92] 2, to bc returned to Council within 30 days. Page 8 - Council Agenda httn:! /www.chulavistac3.!lOV September I, 2009 OTHER BUSINESS 16. CITY MANAGER'S REPORTS San Diego City/County Managers Association Regional City Pension Standards Proposal 17. MAYOR'S REPORTS A. Discussion regarding draft ordinance implementing Proposition Q (Elected City Attorney). B. Updatcd information regarding thc Waiver for the Point Loma Wastcwater Treatmcnt Plant. C. Ratification ofappointmcnl to the following boards and commissions: James Balnis Dcrek Turbide Julio Fuentes Carol Gove Alejandro Galicia Virgil Whitehead Board of Library Trustees Resource Conservation Commission Safety Commission Safcty Commission Veterans Advisory Commission Veterans Advisory Commission 18. COUNCILMEMBERS' COMMENTS CLOSED SESSION Announcemenls of actions taken in Closed Session shall be made available by noon on Wednesday.frJllowing the Council Meeting at the City Atlol'/7ey's office in accordance with the Ralph M. Brown ACI (Govel'/7l11ent Code 54957. 7). 19. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) A. South Bay Expressway, L.P., et al. v. City of Chula Vista, San Dicgo Superior Court, Case No. GIC 869386 B. Sergio Lopez v. City of Chula Vista, et al. United States District Court, Case No. 07cvl272-WQH (BLM) 20. PUBLIC EMPLOYEE APPOINTMENT PURSUANT TO GOVERNMENT CODE SECTION 54957 Title: Library Director ADJOURNMENT to the City Council workshop on September 10, 2009, and thence to a Regular City Council mccting of September 15, 2009 at 4:00 p.m. in the Council Chambers. (The meeting of September 8, 2009 is cancelled.) Page 9 - Counci I Agenda hlli1 ://VI'WW.C h u lavisl <lea. !!.ov September 1,2009 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 AMERIC4NS WITH DISABILITIES ACT The City ofChula Vista requests individuals who require special acconunodations to access, aI/end, and/or participate in a City meeting, activity, or service, contact the City Clerk's Office at (619) 691-5041 atleastforty-eight hours in advance of the meeting. Page 10 - Council Agenda httD ://v.,'W\N.C hula vlstaca. flOY September 1,2009 DRAFT MINUTES OF AN ADJOURNED REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA April 28, 2009 4:00 P.M. A Regular Meeting of the City Council of the City of Chula Vista was called to order at 4:00 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Councilmembers Bensoussan, 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 SILEN SPECIAL ORDERS OF THE DA Y . PRESENTATION BY KELLEY BACON, HUMAN RESOURCES DIRECTOR, OF THE IMPLEMENTATION OF A NEW SUGGESTION A WARDS PROGRAM Human Resources Director Bacon presented the PRIDE STARS suggestion awards program, and explained the eligibility requirements for the awards. Councilmember Castaneda asked staff to provide an informational item with all suggestions from departments. Councilmember Ramirez encouraged staff to consider all suggestions, whether eligible for the program awards or not. Furthernlore, he suggested that there be a feedback process between the review committee and employees. Deputy Mayor McCann asked staff to offer employee's online access to the program, as well as the ability for suggestions to be submitted anonymously. . PRESENTATION ON THE "DESTINATION LlNDBERGl-I" EFFORT BY TOM SMISEK, SAN DIEGO COUNTY REGIONAL AIRPORT AUTHORITY MEMBER, MARY SESSOM, MAYOR OF LEMON GROVE; AND KEITH WILSCHEZ, SAN DIEGO COUNTY REGIONAL AIRPORT AUTHORITY PLANNING DIRECTOR Lemon Grove Mayor Sessom, representing San Diego Association of Governments (SANDAG), highlighted the transportation elements of the proposed "Destination Lindbergh" plan that focused on the incorporation of an airport transportation center to connect all modes of transport. Page 1 - Council Minutes April 28, 2009 /1} ~I DRAFT SPECIAL ORDERS OF THE DAY (Continued) Tom Smisek introduced the concept of the "Destination Lindbergh" plan, and spoke about the collaborative efforts between the various agencies working on the conceptual airport plan. Airport Authority Planning Director Keith Wilschez presented the Destination Lindberg conceptual plan, including the ad-hoc committee's recommendations for expansion of the ai rport. CONSENT CALENDAR (Items 1-9) Councilmember Castaneda stated he would be abstaining from voting on Item 2. This item was removed from the Consent Calendar. I. APPROVAL OF MINUTES of January 6, 2009. Staff recommendation: Council approve the minutes. 2. This item was removed from the Consent Calendar. 3. RESOLUTION NO. 2009-087, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING AN IDENTITY THEFT PREVENTION PROGRAM IN COMPLIANCE WITH THE FAIR AND ACCURATE CREDIT TRANSACTION ACT The Federal Trade Commission (FTC), in accordance with the Fair and Accurate Credit Transaction (FACT) Act, has set "red flag" rules requiring the City to establish written programs that provide for the detection of and response to specific activities ("red flags") that could be related to identify theft. (Finance Director) Staff recommendation: Council adopt the resolution. 4. A. RESOLUTION NO. 2009-088, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACTING AS THE LEGISLATIVE BODY OF REASSESSMENT DISTRICT NO. 2001-1 OF THE CITY OF CHULA VISTA ORDERING JUDICIAL FORECLOSURE OF DELINQUENT SPECIAL REASSESSMENTS PURSUANT TO THE REFUNDING ACT OF 1984 FOR 1915 IMPROVEMENT ACT BONDS B. RESOLUTION NO. 2009-089, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACTING AS THE LEGISLATIVE BODY OF REASSESSMENT DISTRlCT NO. 2001-2 OF THE CITY OF CHULA VISTA ORDERlNG JUDICIAL FORECLOSURE OF DELINQUENT SPECIAL REASSESSMENTS PURSUANT TO THE REFUNDING ACT OF 1984 FOR 1915 IMPROVEMENT ACT BONDS Page 2 - Council Minutes April 28, 2009 /11 -,;2... DRAFT CONSENT CALENDAR (Continued) C. RESOLUTION NO. 2009-090, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACTING AS THE LEGISLATIVE BODY OF REASSESSMENT DISTRICT NO. 2005-2 OF THE CITY OF CllliLA VISTA ORDERING JUDICIALFORECLOSURE OF DELINQUENT SPECIAL REASSESSMENTS PURSUANT TO THE REFUNDING ACT OF 1984 FOR 1915 IMPROVEMENT ACT BONDS D. RESOLUTION NO. 2009-091, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2006-IA OF THE CITY OF CHULA VISTA ORDERING JUDICIAL FORECLOSURE OF DELINQUENT SPECIAL ASSESSMENTS PURSUA.NT TO THEMELLO-ROOS COMMUNITY FACILITIES ACT OF 1982 E. RESOLUTION NO. 2009-092, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2008-1 OF THE CITY OF CHULA VISTA ORDERING JUDICIAL FORECLOSURE OF DELINQUENT SPECIAL ASSESSMENTS PURSUANT TO THE MELLO-ROOS COMMUNITY FACILITIES ACT OF 1982 As part of the City's fiduciary role in administering assessment districts and community facilities districts, Finance staff has been working with NBS, the City's special tax administrator, to address Clelinquent payments of special assessments. Ten parcels affecting six different districts have been identified as being delinquent in paying their special assessments and now face judicial foreclosure pursuant to the Bond Indenture. (Finance Director) Staff recommendation: Council adopt the resolutions. 5. RESOLUTION NO. 2009-093, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AND APPROVING THE BORROWING OF FUNDS FOR FISCAL YEAR 2009/2010, THE ISSUANCE AND SALE OF A 2009/2010 TAX AND REVENUE ANTICIPATION NOTE THEREFOR AND PARTICIPATION IN THE CALIFOR.l\IIA COMMUNITIES CASH FLOW FINANCING PROGRAM In order to address cash shortfalls that are projected to occur in the General Fund during Fiscal Year 2009/2010 due to the cyclical nature of some of the City's major revenue sources, it is recommended that the City once again take advantage of the opportunity to borrow money on a short-terrn basis at a low cost by issuing a Tax and Revenue Anticipation Note (TRANs) through the pooled financing program sponsored by California Statewide Communities Development Authority (CSCDA). A TRANs is recommended as an alternative to borrowing from other City Funds. (Finance Director) Staff recommendation: Council adopt the resolution. Page 3 - Council Minutes April 28. 2009 /11-3 DRAFT CONSENT CALENDAR (Continued) I I I , :1 il :1 ~ . 6. RESOLUTION NO. 2009-094, RESOLUTION OF THE CITY OF COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE PERFORMING AND VISUAL ARTS TASK FORCE'S SELECTION OF THE FISCAL YEAR 2009/2010 PERFORMING AND VISUAL ARTS GRANTS RECIPIENTS AND MONETARY GRANT AWARDS TOTALING $41,450 In 1997, the City Council approved a sublease with Live Nation, Inc. (formerly Universal Concerts) that established a process whereby ticket sales proceeds at the Cricket Wireless (formerly Coors) Amphitheater would be paid to the City and utilized for a Performing and Visual Arts Fund. This fund is to be used for arts grants to the Chula Vista community for the purpose of promoting and stimulating the growth of performing and cultural arts within the City of Chula Vista. This year the Chula Vista Public Library received $42, 952.95 from Live Nation for their 2008 Concert Series, an increase of over $6,000 from the previous two years. (Deputy City Manager/Library Director) Staff recommendation: Council adopt the resolution. 7. RESOLUTION NO. 2009-095, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE CITY OF CHULA VISTA SEWER SYSTEM MANAGEMENT PLAN On May 2, 2006, the State Water Resources Control Board adopted an order requiring owners/operators of sanitary sewer systems greater than one mile in length to comply with certain regulations aimed at decreasing the likelihood of sewer overflows. These requirements are to be described by a "Sanitary Sewer Management Plan" specific to each agency. Each agency is required to obtain approval of their Sewer System Management Program from their respective governing body. (Public Works Director) Staffrecommendation: Council adopt this resolution. 8. RESOLUTION NO. 2009-096, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUBMITTAL OF A GRANT APPLICATION AND CERTIFYING MATCHING FUNDS FOR THE I STREET SIDEWALK IMPROVEMENTS AND APPROVING THE SUBMITTAL OF A GRANT APPLICATION FOR THE BIKEWAY MASTER PLAN UPDATE TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS (SA1'-,TDAG) FOR FISCAL YEAR 2009/2010 TRANSPORTATION DEVELOPMENT ACT (TDA) AND TRANSNET FUNDING FOR BICYCLE AND PEDESTRIAN PROJECTS The Transportation Development Act (TDA) and the TransNet Program provide funding support for regional bicycle and pedestrian capital improvement projects. A Council resolution approving grant applications is required by the San Diego Association of Governments (SANDAG). (Public Works Director) Staff recommendation: Council adopt the resolution. Page 4 - Council Minutes April 28, 2009 /~'~'f DRAFT CONSENT CALENDAR (Continued) 9. RESOLUTION NO. 2009-097, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CI-IULA VISTA ADOPTING A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CHULA VISTA, THE CITY OF NATIONAL CITY, AND NCSDI NO. I LLC (SUDBERRY PROPERTIES) REGARDING THE PROCESSING OF ENTITLEMENTS FOR THE CONSTRUCTION OF THE GA TEW A Y SHOPPING CENTER, LOCATED AT THE NORTHERN TERMINUS OF BROADWAY (NATIONAL CITY BOULEVARD) Sudberry Properties is planning to construct a shopping center located at the site of the former Harbor drive-in theatre. The site is comprised of multiple parcels that are located within the jurisdictions of Chula Vista and National City. The Memorandum of Understanding (MOU) clarifies the roles of each city with regard to discretionary permit processing, building and fire code compliance, environmental review, impact fees, schedule, financing of public improvements, and other related topics. Staff from both cities, as well as the developer of the site, have reviewed the attached MOU and found its terms and conditions to be mutually acceptable. (Deputy City Manager/Development Services Di rector) Staff recommendation: Council adopt the resolution. ACTION: Mayor Cox moved to approve staffs recommendations and offered the balance of the Consent Calendar (Items I, and 3-9), headings read, text waived. Councilmember Bensoussan seconded the motion, and it carried 5-0. ITEMS REMOVED FROM THE CONSENT CALENDAR 2. RESOLUTION NO. 2009-086, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE TRANSFER OF THE REMAINING UNEXPENDED PROCEEDS OF THE 2004 CERTIFICATES OF PARTICIPATION (CIVIC CENTER PROJECT - PHASE I) AND THE 2006 CERTIFICATES OF PARTICIPATION, (CIVIC CENTER PROJECT - PHASE 2) TO REIMBURSE THE PUBLIC FACILITIES DEVELOPMENT IMPACT FEE FUND, AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS IN CONNECTION THEREWITH The Public Facilities Development Impact Fee fund (PFDIF) paid for the capital expenditures of Phase 3 of the Civic Center remodel, which is now complete. Adoption of the resolution approves reimbursement of the PFDlF fund using available funds in the 2004 and 2006 Certificate of Participation bond proceeds. (Finance Director) Staff recommendation: Council adopt the resolution. ACTION: Mayor Cox moved to approve staffs recommendation, and offered Hem 2, heading read, text waived. Councilmember Bensoussan seconded the motion and it carried 4-0-1, with Councilmember Castaneda abstaining due to the proximity of his property to the project. Page 5 - Council Minutes April 28, 2009 J//"~ DRAFT PUBLIC COMMENTS Larry Breitfelder, Chula Vista resident, representing the Chula Vista Taxpayers Association, stated that there would be no local drop-off location for the Proposition A ballots, and that the ballots must be received by May 5. He then spoke in opposition to Proposition A. City Clerk Norris clarified that the City Clerk's Office would be open on May 5, 2009 from 7:00 a.m. to 8:00 p.m. to receive ballots. . Tracey Lamb, Chula Vista resident, and Chula Vista Olympic Training Center (OTC) President, invited everyone to participate in the Chula Vista Community Fun Run on June 6, 2009, at the Olympic Training Center. He stated that event proceeds would benefit the Chula Vista Nature Center, Library, Recreation, and Animal Shelter. Theresa Acerro, Chula Vista resident, representing the Southwest ChiIla Vista Civic Association, announced the upcoming "Help Our Neighbors" event on May 2, 2009, and invited volunteers to help revitalize two homes on the southwest side of the City. Guillermo Lopez, Chula Vista resident, thanked Councilmembers Ramirez, Bensoussan and Building Official EI-Khazen for assistance with granting a building permit application extension to Ms. Maria Lena Lopez. He then spoke in favor of Proposition A, and in opposition to Deputy Mayor McCann's opposition to Proposition A. ACTION ITEMS 10. CONSIDERATION OF ADOPTION OF A RESOLUTION AUTHORIZING STAFF TO PURSUE A PUBLIC-PRIVATE PARTNERSHIP WITH THE FRIENDS OF THE CHULA VISTA NATURE CENTER FOR THE OPERATION OF THE CHULA VISTA NATURE CENTER At the City Council meeting on April 7, 2009, Committee Chairs from the Mayor's Task Force for Creating a Sustainable Chula Vista Nature Center provided a presentation outlining and summarizing the work of the Task Force to date. Their preliminary recommendations were both detailed and numerous, the result of six separate committees focusing on separate and distinct issues. This report presents staff s recommendations on how the City should proceed in efforts to preserve the Nature Center, both as a valuable asset of the City, and from an operational/management point of view. (Recreation and Nature Center Director) City Manager Sandoval introduced Recreation Director Martin who presented the proposed conceptual funding plan for the Nature Center with the recommendation by staff to establish a public-private partnership and an operating agreement with a non-profit organization. He provided staffs recommendation to transition Nature Center operations to a non-profit organization, with a target date of January 1, 2010, to transition City employees to non-profit employees by December 31, 2009, and to select Friends of the Chula Vista Nature Center as a partner. Page 6 - Council Minutes April 28, 2009 /;J ..-fp DRAFT ACTION ITEMS (Continued) Ken Weimer, Chula Vista resident, representing the Friends of the Chula Vista Nature Center, spoke in support of the operating agreement, in principle, and to the concept of staffs recommendations. He stated, however, that the timeframe and funding levels cited were too optimistic for a smooth transition of the Nature Center. He stated that the Friends of the Nature Center would work diligently with staff for a successful transition. Lura Cox, ChuIa Vista resident, spoke in support of retaining the Nature Center and of staffs recommendation for a public-private partnership. Madeline Tucker, Bonita resident and student at Discovery Elementary, spoke in support of the Nature Center, stating that she recently started a school recycling program in an effort to raise funding for the Nature Center, and to-date, had raised $150. Mary Ann Saponara, ChuIa Vista resident, spoke in support of the Nature Center and also on behalf of her son who, during his school years, had benefited from the Nature Center's programs. She added that she was currently enrolled in the Nature Center docent training program, and was volunteering her time to assist with outreach efforts to keep Nature Center programs going. Manami Watanabe, La Mesa resident and Grossmont College student, spoke in support of retaining the Nature Center. She stated that her biology professor had sent his students to the Nature Center to write a report about whether or not the Nature Center should remain open, and that the report results would be presented to the Council. Bruce Bennett, Coronado resident, spoke in support of the Nature Center, stating that his family and friends were frequent visitors. He commented that the Nature Center was a regional asset that was unique and set itself apart from national nature centers. The following members of the public did not wish to speak, but submitted speaker slips In support of retaining the Nature Center: Barbara Main, Bonita resident Aline King, Lemon Grove resident and ChuIa Vista home owner Susan Fuller, Imperial Beach resident Nancy Stimebuek, Chula Vista resident C. Woodring, Chula Vista resident Mayor Cox stated that fundraising was key to keeping the Nature Center open, and that since December, 2008, a little over $580,000 was raised, of which $250,000 was part of a challenge grant, with the goal of reaching $750,000. Councilmember Bensoussan announced that the Nature Center was the recent recipient of an award for its participation in the Clapper Rail breeding program, and stated that the transition to a non-profit would lead to a better Nature Center with national recognition. Deputy Mayor McCann commented on the City's partnership with the Chula Vista Elementary School District for student field trips to the Nature Center, and he suggested that a note be included with the student field trip permission slips, encouraging donations of a dollar or more for the Nature Center. Page 7 - Council Minutes April 28, 2009 /11-7 DRAFT ACTION ITEMS (Continued) Mayor Cox encouraged interested members of the public to get involved with board membership for the Nature Center. She stated that she would remain committed to raising $10,000 in the next 30 days. She thanked Councilmember Bensoussan for her work on the Task Force, and also thanked staff and volunteers for their work. ACTION: Mayor Cox moved to adopt the following Resolution No. 2009-098, heading read, text waived: RESOLUTION NO. 2009-098, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING STAFF TO PURSUE A PUBLIC-PRIVATE PARTNERSHIP AND OPERATING AGREEMENT WITH THE FRIENDS OF THE CHULA VISTA NATURE CENTER FOR OPERATION AND MANAGEMENT OF THE NATURE CENTER, AND APPROVING TWO CONCEPTUAL FUNDING PLANS AS A BASIS OF INITIAL NEGOTIATIONS WITH THE FRIENDS OF THE CHULA VISTA NATURE CENTER (4/5THS VOTE REQUIRED) Councilmember Bensoussan seconded the motion and it carried 5-0. OTHER BUSINESS I I. CITY MANAGER'S REPORTS City Manager Sandoval commented on the status of the current 2009/20 I 0 budget deficit, stating that staff had made great strides in closing the deficit, and would be bringing a full report to Council at its meeting of May 12, 2009. He stated that Finance Director Kachadoorian would provide a brief overview of the upcoming report. 12. MAYOR'S REPORTS Mayor Cox announced the Third Avenue Village Association's Cinco de Mayo event on May 2, 2009. She also invited everyone to participate in the Chula Vista Community 5K Fun Run on June 6, 2009 with all event proceeds benefiting local Chula Vista charities. 13. COUNCILMEMBERS' COMMENTS Deputy Mayor McCann commented that this year was the Chula Vista Veterans Home Support Foundation's 10th anniversary. To that end, he suggested that the Foundation be recognized with a proclamation. Mayor Cox responded that the proclamation would be delivered to the Veterans Home. Deputy Mayor McCann spoke about his attendance at the recent Day of the Child event, and was honored to give the kick-off speech at the opening reception. He also attended the April Pools Day event at Lorna Verde pool, showcasing child swim safety awareness. He then addressed earlier public comments by Mr. Lopez regarding Proposition A, stating his opposition to the one percent sales tax increase. City Attorney Miesfeld advised the Council to keep comments related to the proposition limited to the facts of the measure. Page 8 - Council Minutes April 28, 2009 ,-) II) ~b DRAFT OTHER BUSINESS (Continued) 'Councilmember Castaneda deferred to Finance Director Kachadoorian for the overview of the budget report. Finance Director Kachadoorian then gave a brief update on current trends regarding the City's budget deficit, projected at $3.5 million. She also provided information on ongoing efforts to reduce the deficit, including continuation of the administrative freeze, additional layoffs and cuts that would occur if new revenues were not identified, continuation of the early retirement program until June 26, 2009. She stated additional information would be provided with the third quarter fiscal update and budget presentation scheduled for May 12,2009. ACTION: Deputy Mayor McCann moved to convene a Council Workshop on May 7,2009 at 6:00 p.m. to address the current fiscal year budget deficit. The motion died for lack of a second. Councilmember Castaneda spoke about the recent Earth Day event at Balboa Park, and his participation as a panel member in a forum for high school students about climate change. He commented on how well informed the students were on the issue. He talked about the recent Public Safety Subcommittee meeting that addressed future plans for the' Fire Department in terms of providing greater and more efficient advanced life support to the community. He thanked Fire Chief Hanneman and City Manager Sandoval for moving forward to ensure public safety. He reminded the community about the upcoming Cinco de Mayo event on May 2, 2009. Deputy Mayor McCann added to the comments by Councilmembcr Castaneda regarding the Public Safety Subcommittee meeting, and thanked Fire Chief Hanneman, Fire Department personnel, and City staff who participated, commending them on plans to move forward with providing advanced life support on City fire trucks, without using general fund money. Councilmember Ramirez announced his next Public Office Hours, scheduled for May 4, 2009 at 6:00 p.m. in Council Chambers, to discuss the reorganization of the Development Services , Department. Councilmember Bensoussan spoke about the City's recent participation and her attendance at the National Conference on Climate Change meeting at the public library, to discuss the effects of global warming on the region. She stated that attendees were provided water-saving kits, and that members of the public could contact the City's Conservation and Environmental Services Department to obtain remaining water kits. She announced the upcoming Western Revitalization Council Subcommittee Meeting on May I 1,2009 at 5:30 p.m., at Ciao Restaurant, 4360 Main Street, to hear a presentation by the South County Economic Development Council on recession proofing for businesses. Mayor Cox addressed comments about information posted on the City's website regarding Proposition A as being anything other than legitimate and lawful. To that end, she asked City Manager Sandoval and City Attorney Miesfeld to provide information on the process used to place the information on the websire. Page 9 - Council M ioutes April 28, 2009 111-9 DRAFT OTHER BUSINESS (Continued) City Manager Sandoval stated that prior to publishing the information on the City's website regarding Proposition A, staff had provided the City Attorney with proposed content, and had published the information that had been approved by the City Attorney. City Attorney Miesfeld stated that his office had reviewed the information proposed to be placed on the City's website, and had also consulted with special counsel specializing in election law. He stated that the City Attorney's office then provided the approved content to the City Manager for publishing. Mayor Cox recessed the meeting at 6:16 p.m., and announced that the Council would reconvene in Closed Session at 6:30 p.m. CLOSED SESSION 14. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a): A. OJ Allen v. City of Chula Vista, San Diego Superior Court, Case No. 37-2007- 00069534-CU-PO-SC There was no reportable action taken on this item. B. City of Chula Vista v. Maria E. Gutierrez., San Diego Superior Court, Case No. 37- 2008-00074648-CU-PT -SC There was no reportable action taken on this item. ADJOURNMENT At 6:55 p.m., Mayor Cox adjourned the meeting to the Regular Meeting of May 5, 2009 at 4:00 p.m., in the Council Chambers. ~ Lorraine Bennett, CMC, Deputy City Clerk ~ /- Page 10 - Council Minutes April 28, 2009 ///-/0 DRAFT MINUTES OF A REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA May 5, 2009 4:00 P.M. A Regular Meeting of the City Council of the City of Ch\lla Vista was called to order at 4:04 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Councilmembers Bensoussan, 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 SPECIAL ORDERS OF THE DAY RECOGNITION OF EMPLOYEE OF THE MONTH, IN MEMORY OF JAY HARRIS, PROCUREMENT SPECIALIST, BY MARIA KACHADOORIAN, FINANCE DIRECTOR Finance Director Kachadoorian offered the Employee of the Month tribute in memory of Jay Harris. Mayor Cox read the proclamation and Councilmember Castaneda presented it to Mrs. Harris. . PRESENTATION BY MARK WATTON, GENERAL MANAGER OF OTAY WATER DISTRICT, AND JAMES SMYTH, OPERATIONS MANAGER OF SWEETWATER AUTHORITY, ON LOCAL WATER SUPPLY AND RATES Director of Conservation and Environmental Services Meacham introduced Mark Watton, General Manager, Otay Water District, who spoke about pumping restrictions affecting the reliability oflocal water supply, drought impacts on water levels and resulting higher water costs, and the advantages of diversification of water supplies. He stated that both Otay Water District and Sweetwater Authority offered conservation outreach and education programs. James Smyth, Operations Manager, Sweetwater Authority, presented an overview of the current drought levels and local water sources. He spoke about possible water expansion projects for the South San Diego County, and about possible future consideration of installing a brine discharge line. He commented on ongoing efforts by Sweetwater Authority and Otay Water District for water conservation outreach and education programs for the community. Page I - Council Minutes May 5, 2009 1/3 ~/ DRAFT SPECIAL ORDERS OF THE DAY (Continued) Director of Conservation and Environmental Services Meacham, reported that in the last year, staff had distributed over 3,000 water conservation kits to households in Chula Vista, and 515 spray rinse valves to restaurants, which had resulted in the reduction of II million gallons of water consumption in the greater south bay area. Mayor Cox asked whether or not water restrictions were being considered. Mr. Watton responded that the staff would not be recommending restrictions, based upon the current performance by residents. Public Works Director Hopkins responded to comments by Councilmember Bensoussan regarding the proposed installation of groundwater wells, stating that the wells were proposed to be installed at Hyde Park and Eucalyptus Park in the City, and that City and Sweetwater Authority staff would be working together to discuss any sensitivity issues with the proposed wells, and that members of Crossroads II had been invited to provide input on the matter. . PRESENTATION OF A PROCLAMATION TO POLICE CHIEF RICHARD P. EMERSON, BY MAYOR COX PROCLAIMING MAY 6, 2009 AS LAW ENFORCEMENT OFFICERS' MEMORIAL DAY IN THE CITY OF CHULA VISTA Mayor Cox read the proclamation and Councilmember Bensoussan presented it to Police Chief Emerson. Chief Emerson announced that the memorial ceremony was on May 6, 2009, at the San Diego County Administration Center, to recognize San Diego County police officers killed in the line of duty, and he invited everyone to attend. Mayor Cox then commented on local crime statistics, accessible on SANDAG's web site, that indicated a reduction in overall crime in Chula Vista. PRESENTATION OF A PROCLAMATION TO BUCK MARTIN, RECREATION DIRECTOR DECLARING MAY 2009 AS DROWNING PREVENTION MONTH Recreation Director Martin recognized and introduced Diane Strum, representing Kaiser Permanente's Operation Swim, the City's partner in its swim program, stating that Kaiser had donated $50,000 for the swim program. He also introduced Aquatics Supervisor Manuel Gonzales, who managed the City's aquatic programs. Mayor Cox then read the proclamation and Deputy Mayor McCann presented it to Recreation Director Martin. Staff member Gonzales then gave tips on sun safety. . PRESENTATION OF A PROCLAMATION TO STEVE FIALKO, EXALTED RULER, AND GARRY HUMMEL, TRUSTEE, CHULA VISTA ELKS LODGE #2011, BY MAYOR COX PROCLAIMING THE WEEK OF MAY I THROUGH MAY 7, 2009, AS YOUTH WEEK IN CHULA VISTA Mayor Cox read the proclamation and Councilmember Ramirez presented it to Exalted Ruler, Steve Fialko and Trustee, Garry Hummel. Page 2 - Council Minutes May 5, 2009 /'6 - .).. DRAFT CONSENT CALENDAR (Items 1-4) I. APPROV AL OF MINUTES of January 8, 2009. Staff recommendation: Council approve the minutes. 2. RESOLUTION NO. 2009-099, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CllliLA VISTA APPROVING THE LEASE WITH MMV GRAVEL OVER A PORTION OF CITY OWNED PROPERTY LOCATED AT 707 F STREET The City has been approached by MMV Gravel Company, a local firm, about leasing a portion of City-owned property to store and mix gravel and sand as a part of their concrete aggregate business. This small area of an unused City asset offers an opportunity to both generate revenue and eliminate a storm water issue. (Public Works Director) Staff recommendation: Council adopt the resolution. 3. RESOLUTION NO. 2009-100, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING AND ADOPTING A CERTIFIED LIST OF APPROVED DESIGN- BUILD FIRMS TO PROVIDE DESIGN/BUILD SERVICES FOR THE DESIGN AND CONSTRUCTION OF CAPITAL IMPROVEMENT PROJECTS CITYWIDE In October 2002, the Council approved a certified list of design-build firms for the construction of fire facilities, and in June 2003, the Council approved a certified list of design-build firms for the construction ofpublic facilities (excluding fire facilities). Both lists were for duration of five years and have since expired. As infrastructure facilities are continuously needed, proposals were sought from qualified firms to establish a new certified list of design-build firms. (Public Works Director) Staff recommendation: Council adopt the resolution. 4. RESOLUTION NO. 2009-101, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FISCAL YEAR 2009/2010 ANNUAL ACTION PLAN FOR COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG), HOME INVESTMENT PARTNERSHIP ACT (HOME), AND THE EMERGENCY SHELTER GRANT (ESG) PROGRAMS; AUTHORIZING THE CITY MANAGER OR HIS. DESIGNEE TO EXECUTE AN AGREEMENT FOR MANAGEMENT A.ND IMPLEMENTATION WITH EACH SUB-RECIPIENT, AND AUTHOIUZING THE CITY MANAGER TO EXECUTE ANY AND ALL RELATED DOCUMENTS NECESSARY TO OBTAIN THE HUD GRANT Page 3 - Council Minutes May 5, 2009 1~-3' DRAFT CONSENT CALENDAR (Continued) As a Housing and Urban Development (HUD) entitlement community, the City receives grant funds under the Community Development Block Grant (CDBG), Emergency Shelter Grant (ESG) and the Home Investment Partnerships Act Program (HOME). The funds are distributed among local non-profits, housing developers and City departments to provide decent housing, economic opportunities and a suitable living environment for low and moderate income persons. On March 24, 2009, the City Council held a Public Hearing on 2009-2010 CDBG, HOME and ESG funding recommendations. This item will approve the final Action Plan which contains the spending plan. (Deputy City Manager/Development Services Director) Staff recommendation: Council adopt the resolution. ACTION: Mayor Cox moved to approve staffs recommendations and offered the Consent Calendar (Items 1-4), headings read, text waived. Deputy Mayor McCann seconded the motion and it carried 5-0. Mayor Cox commented on Item 4, commending staff on its formula to provide fair funding allocations, and she requested that staff use the existing formula for next year's funding allocations, stating that the use of discretionary allocations would be a mistake. ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS Howard Mendis, Bonita resident, representing Club Blue, Bonita Vista High School Band, requested that the City consider issuing a permit for the sale and conduct of fireworks to TNT Fireworks as part of fundraising efforts for the band. Toni Romo, National City resident, representing Bonita Vista High School Music Machine Boosters, spoke in favor of the City allowing TNT fireworks in order to raise funds for the Bonita Vista Music Machine. Theresa Acerro, Chula Vista resident, representing Southwest Chula Vista Civic Association, spoke about the Broderick Acres community and stated there were poor conditions in the area, citing problems associated with drainage and sewer, and the lack of sidewalks. She questioned why the tax increment collected from the area residents was not being expended on improvements for the area. She requested that Council investigate the matter and to re-direct funding for the area. Mayor Cox asked Fire Chief Hanneman and Police Captain Wedge to address safety concerns associated with speaker requests for the sale of fireworks in the City. Chief Hanneman responded that wildfires were of great concern, particularly in the months of June and July, and stated that consideration needed to be given to neighboring jurisdictions that may be affected by the potential onset of wildfires resulting from fireworks. Captain Wedge concurred with the comments by Chief Hanneman, adding that any calls for service for fireworks-related issues would also include the Police Department. It was the consensus of the Council to refer. to staff to place an item on a future agenda on the sale of fireworks in the City. Page 4 - Council Minutes May 5, 2009 /6 - t/ DRAFT PUBLIC HEARlNGS 5. CONSIDERATION OF REZONING A PARCEL LOCATED AT 440 FOURTH A VENUE The applicant proposes to change the property from a Multi-Family 'Residential (R3) to a Commercial Office (CO) zone. (Development Services Department) 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. Assistant Planner Young presented the proposed re-zone of a parcel at 440 Fourth A venue. 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 place the following ordinance on first reading, heading read, text waived: ORDINANCE OF THE CITY OF CHULA VISTA AMENDING THE ZONING MAP ESTABLISHED BY SECTION 19.18.010 TO REZONE ONE .17 ACRE PARCEL LOCATED AT 440 FOURTH AVENUE FROM R3 (MULTI-FAMILY RESIDENTIAL) TO CO (COMMERCIAL OFFICE) (FIRST READING) Councilmember Castaneda seconded the motion and it carried 4-0, with Deputy Mayor McCann absent from the dais. Deputy Mayor McCann returned to the dais and requested a re-vote on Item 5. The motion then carried 5-0. 6. CONSIDERATION OF AMENDING THE FISCAL YEAR 2008/2009 ANNUAL ACTION PLAN Adoption of the resolution amends the 2008/2009 Annual Action Plan to include American Recovery and Reinvestment Act (ARRA) of2009 funds received by the City of Chula Vista for Homeless Prevention and Rapid Re-housing, and authorizes the submittal of the City's amendment to 2008/2009 Action Plan to the Department of Housing and Urban Dcvelopment to include the ARRA Homeless Prevention and Rapid Re-I-Iousing program funds. (Deputy City Manager/Development Services 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. Redevelopment and Housing Manager Mills presented the 2008/2009 proposed Action Plan amendment for homeless prevention and rapid re-housing, and Project Coordinator Dorado presented the program's budget. Page 5 - Council Minutes May 5, 2009 /16-5 DRAFT PUBLIC HEARINGS (Continued) 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 Castaneda moved to adopt the following Resolution No. 2009- 102, heading read, text waived: RESOLUTION NO. 2009-102, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AMENDMENT TO THE FISCAL YEAR 2008/2009 ANNUAL ACTION PLAN TO ALLOCATE $819,738 OF HOMELESS PREVENTION FUNDS, AND AUTHORIZING THE CITY MANAGER TO EXECUTE ANY DOCUMENTS NECESSARY TO OBTAIN THE HOUSING AND URBAN DEVELOPMENT GRANT FUNDS Councilmember Bensoussan seconded the motion and it carried 5-0. OTHER BUSINESS 7. CITY MANAGER'S REPORTS City Manager Sandoval stated that a brief overview of the 2009/2010 City budget would be presented to the Council at the meeting of May 12, 2009. He also stated that a progress report and update to the Council on Port District activities would be forthcoming, and he informed the Council of his absence from the City on May 7 and 8' to attend meetings with other City Managers on regional and statewide matters. 8, MA YOR'S REPORTS Ratification of the appointment of Cynthia Berndt to the Cultural Arts Commission. ACTION: Mayor Cox moved to appoint Cynthia Berndt to the Cultural Arts Commission. Deputy Mayor McCann seconded the motion and it carried 5-0. Mayor Cox announced the upcoming Olympic Training Center community Fun Run on June 6, 2009, and the Red Bull races the weekend of May 9th. She also stated that Nico's Steak and Chop House restaurant in the Otay Ranch Town Center was nominated Best New Restaurant in San Diego County by the California Restaurant Association, and the third ranked restaurant on open table. She then stated that up-to-date information about the HlNl virus could be found by calling 2-1-1, by going online to w\vw.211.0n!, or by accessing the San Diego County website. 9. COUNCILMEMBERS' COMMENTS Deputy Mayor McCann congratulated the Chula Vista Veterans Home Foundation on its successful golf tournament; thanked the Third Avenue Village Association on the success of the Cinco de Mayo festival that attracted 30,000 visitors, and; he hoped that the longer daylight hours offered the community more time to spend with family. Page 6 - Council Minutes May 5, 2009 /B d' t:. DRAFT OTHER BUSINESS (Continued) Councilmember Castaneda invited the community to attend the Western Chula Vista Revitalization Subcommittee meeting on May 11,2009, at Ciao Italian Restaurant. Councilmember Ramirez invited the community to attend the International Friendship Games on May 9th, from 8:00 a.m. to 8:00 p.m., at Mater Dei Catholic High School. He commented that Nico's Steak and Chop House restaurant was deserving of its recent recognition. Councilmember Bensoussan commented on the successful Chula Vista Yacht Club open house event. She announced the Energy Subcommittee Meeting on May 6, 2009 at 3:00 p.m. in Council Chambers, and; the next Western Revitalization Meeting was scheduled for May 11, 2009, at 5 :30 p.m., at Ciao Italian Restaurant, with a presentation by Dan Biggs, President, South County Economic Development Commission, who would be speaking on recession-proofing for businesses. ADJOURNMENT Mayor Cox adjourned the meeting at 5:36 p.m., in recognition of Mother's Day, to the Regular Meeting of May 12, 2009 at 6:00 p.m. in the Council Chambers. . ~ ~tYCitYClerk Page 7 - Council Minutes May 5, 2009 /.6 - 7 DRAFT MINUTES OF REGULAR MEETINGS OF THE CITY COUNCIL AND THE I-lOUSING AUTHORITY AND A SPECIAL MEETING OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA May 12, 2009 6:00 P.M. Regular Meetings of the City Council and the Housing Authority, and a Special Meeting of the Redevelopment Agency of the City of Chula Vista were called to order at 6: II p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Council! Authority/ Agency Members: Bensoussan, Castaneda, McCann, Ramirez, Mayor/Chair Cox ABSENT: None ALSO PRESENT: City Manager/Executive Director Sandoval, City Attorney/Agency Counsel Miesfeld, City Clerk Norris, and Deputy City Clerk Bennett PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY OATH OF OFFICE: Cynthia Berndt, Cultural Arts Commission City Clerk Norris administered the oath of office to Cynthia, and Councilmember Bensoussan presented her with a certificate of appointment. PRESENTATION TO THE MAYOR AND CITY COUNClL OF A CHECK IN THE AMOUNT OF $20,000 BY DUANE BUCKINGHAM OF THE CHULA VISTA ROTARY CLUB FOR THE RENOVATION OF MEMORIAL BOWL Mr. Buckingham presented the check to Deputy Mayor McCann who accepted it on behalf of the City. PRESENTATION OF A PROCLAMATION TO CHULA VISTA EMPLOYEES TOM ADLER, SENIOR CIVIL ENGINEER; BRIAN CATACUTAN, ASSISTANT PLANNER; JANICE KLUTH, SENIOR PROJECT COORDINATOR; MARlSA LUNDSTEDT, PRINCIPAL PLANNER; FRANK RIVERA., PRINCIPAL CIVIL ENGINEER; AND ROBERTO SOLORZANO, ASSOCIATE ENGINEER, CELEBRA TING MAYAS BIKE TO WORK MONTH AND MAY 15TH AS BIKE TO WORK DA Y Mayor Cox read the proclamation and Councilmember Ramirez presented it to Frank Rivera who accepted it on behalf of the employees representing "Bike to Work Day". Page 1 - Council/Housing Authority/Redevelopment Agency Minutes May 12,2009 IC-j DRAFT SPECIAL ORDERS OF THE DAY (Continued) PRESENTATION BY MARIA FILIPPELLI, SAt'lDAG PROJECT MANAGER AND JACK BODA, SANDAG DIRECTOR OF MOBILITY AND CAPITAL PROJECTS, REGARDING SANDAG'S REGIONAL BIKE PLAN AND THE NEWEST SEGMENT OF THE BA YSHORE BIKEWAY Mayor Cox introduced Jack Boda who presented the SANDAG Regional Bike plan and the new segment of the Bayshore Bikeway, followed by Mr. Romero who spoke about the construction of the bikeway bridge extension. She then introduced San Diego County Supervisor Cox, who spoke about the process undertaken for completion of the bikeway segment, and future plans for the bayshore bikeway sections. Mayor Cox also recognized Andy Yuen, representing U.S. Fish and Wildlife for his assistance with the project. PROCLAIMING THE WEEK OF MAY 17-23, 2009 AS NATIONAL PUBLIC WORKS WEEK Mayor Cox read the proclamation and Councilmember Bensoussan presented it to Public Works Director Hopkins. RECOGNITION OF LEAH BROWDER, DEPUTY CITY MANAGER, BY MAYOR COX Mayor Cox recognized and thanked Deputy City Manager/Library Director Browder for her service to the City from 2005-2009, and presented her with a token of appreciation on behalf of the Council. Deputy Mayor McCann thanked Leah for her service to the City and wished her the best. Councilmember Ramirez recognized Leah for her work, dedication and professionalism. Councilmember Bensoussan echoed the comments of the Council. City Manager Sandoval spoke of his appreciation for all of Leah's work and offered her best wishes. CONSENT CALENDAR (Items 1 - 6) City Council (Item 7) City Council/Redevelopment Agency (Item 8) Housing Authority The following items were removed from the Consent Calendar: Item 2, for discussion by a member of the public, Item 3, for discussion by the City Attorney, and Items 6 and 7. 1. ORDINANCE NO. 3127, ORDINANCE OF THE CITY OF CHULA VISTA AMENDING THE ZONING MAP ESTABLISHED BY SECTION 19.18.010 TO REZONE ONE .17 ACRE PARCEL LOCATED AT 440 FOURTH AVENUE FROM R3 (MUL TI-F AMIL Y RESIDENTIAL) TO CO (COMMERCIAL OFFICE) (SECOND READING AND ADOPTION) Adoption of the ordinance allows the applicant to change the property from a Multi- Family Residential (R3) to a Commercial office (CO) zone. This ordinance was introduced on May 5, 2009. (Deputy City Manager/Development Services Director) Staff recommendation: Council adopt the ordinance. Page 2 - Council/Housing Authority/Redevelopment Agency Minutes May 12, 2009 / ~ - .).... DRAFT CONSENT CALENDAR (Continued) 2. Item 2 was removed from the Consent Calendar. 3. Item 3 was removed from the Consent Calendar. 4. A. RESOLUTION NO. 2009-104, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE DEVELOPMENT IMPACT FEE PA YMENT PLAN PROGRAM AGREEMENT WITH MCMILLIN TERRACOTTA, LLC FOR TERRACOTTA PHASES 5 AND 6, AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THE CITY, AND DIRECTING THE CrTY CLERK TO RECORD A LIEN AND THE AGREEMENT WITH THE COUNTY RECORDER OF THE COUNTY OF SAt" DIEGO B. RESOLUTION NO. 2009-105, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE DEVELOPMENT IMPACT FEE PAYMENT PLAN PROGRAM AGREEMENT WITH OTAY RANCH VILLAGE 1I- PC-13,LLC FOR THE VILLAS DE AVILA MODEL HOME UNITS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THE CITY, AND DIRECTING THE CITY CLERK TO RECORD A LIEN AND TI-IE AGREEMENT WITH THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO The City of Chula Vista requires the payment of various processing, development impact, capacity, and in-lieu fees to ensure new development mitigates its impact on public facilities. The payment of these fees is a substantial commitment for many projects, and spreading the payment of the fees over an extended period may assist in the development of projects. In December 2008, members of the development community contacted the City and requested an extended payment schedule program be considered. The ordinance establishing a payment plan was approved by the City Council and became effective on February 6, 2009. (Public Works Director, Deputy City ManagerfDevelopment Services Director) Staff recommendation: Council adopt the resolutions. 5. A. RESOLUTION NO. 2009-106, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING FEDERAL FUNDS UNDER TI-IE SAFE ROUTES TO SCHOOL PROGRAM IN THE AMOUNT OF $621,115 FOR THE "SAFE ROUTES TO SCHOOL - OTA Y ELEMENTARY AND RICE ELEMENTARY " PROJECT B. RESOLUTION NO. 2009-107, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A NEW CAPITAL IMPROVEMENT PROJECT "SAFE ROUTES TO SCHOOL - O1AY ELEMENTARY AND RICE ELEMENTARY" (TF-361) AND APPROPRIATING FUNDS THEREFOR (4/5THS VOTE REQUIRED) Page 3 - Council/Housing Authority/Redevelopment Agency Minutes May 12, 2009 Ie ~~ DRAFT CONSENT CALENDAR (Continued) In January 2007, the City filed a grant application to the State under the Federal Safe Routes to School Program (SRTS) for funds to improve pedestrian facilities adjacent to Otay and Rice Elementary Schools. On June 7, 2007, the City was approved for the SRTS Federal grant. As a result, staff recommends that the City Council accept the grant program funds and authorize the appropriation of funds to a new CIP, "Safe Routes to Schools - Otay Elementary and Rice Elementary Schools" (TF-361). This project will provide improvements to enhance pedestrian safety adjacent to Otay Elementary School and Rice Elementary School. (Public Works Director) Staff recommendation: Council adopt the resolutions. 6. !tern 6 was removed from the Consent Calendar. 7. Item 7 was removed from the Consent Calendar. 8. HOUSING AUTHORITY RESOLUTION NO. 2009-038, RESOLUTION OF THE HOUSING AUTHORITY OF THE CITY OF CHULA VISTA REGARDING ITS INTENTION TO ISSUE TAX-EXEMPT OBLIGATIONS FOR THE LANDINGS II AFFORDABLE APARTMENTS At this time, the Housing Authority of the City of Chula Vista is considering a Resolution expressing the Authority's intent to issue multi-family housing revenue bonds in an amount not to exceed $42 million to finance the proposed project. (Deputy City Manager/Development Services Director) Staff recommendation: Council adopt the resolution. ACTION: Deputy Mayor McCann moved to approve staffs recommendations and offered Consent Calendar Items 1, 4, 5, and 8, headings read, text waived. Councilmember Castaneda seconded the motion, and it carried 5-0. With respect to !tern 8, Councilmember Castaneda asked staff to ensure a competitive and fair process for the selection of a bond underwriter. City Manager Sandoval stated that there would be a Request for Proposal. ITEMS REMOVED FROM THE CONSENT CALENDAR 2. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AGREEMENT WITH PUBLIC FINANCIAL MANAGEMENT, INe. TO PROVIDE FINANCIAL ADVISORY SERVICES, AND AUTHORIZING THE MA YOR TO EXECUTE SAID AGREEMENT On January 20, 2009, the City Council approved a Fiscal Health Plan that provides for a long-term financial strategy. To this end, staff issued a Request for Proposal (RFP) for financial advisory services to assist in preparing this long-term financial strategy. As part of this financial strategy, it is anticipated that debt restructuring of the 2000 and 2002 Certificates of Participation, which funded the construction of the Public Works Yard and Police Facility, may be a recommended course of action. The financial advisory firm would assist the City in restructuring its debt in a way that would best meet the City's long-term financial goals. (Finance Director) Page 4 - CouncilJHousing Authority/Redevelopment Agency Minutes May 12, 2009 Ie - -;t DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR (Continued) Theresa Acerro, Chula Vista resident, spoke in favor of community input on a long-term financial strategy. Councilmember Castaneda requested to meet with staff to discuss the structure of the scope of work. ACTION: Councilmember Castaneda moved to continue Item 2 to a future meeting. The motion died for lack of a second. City Manager Sandoval responded that it was important to add a financial strategy to the City's Fiscal Health Plan, and that staff had proven through the current budget process, its transparency to the public. Counci]member Bensoussan suggested opportunities for public engagement in the process. Finance Director Kachadoorian commented that one of the questions in the Request for Proposal was about public participation. She further stated that the primary focus of this request was Council consideration of ways to restructure the City's debt. Councilmember Castaneda stated that he could not support the item without more specificity. ACTION: Deputy Mayor McCann moved to continue Item 2. Councilmember Castaneda seconded the motion. City Manager Sandoval clarified that the request by staff was not to expend funds, but only to select a firm, and that staff would return to the Council with a scope of work and price. Further discussion ensued between the Council and staff about the process for selection of a consultant to provide financial advisory services. Deputy Mayor McCann called for the vote to continue the item to the May 26, 2009 Council Meeting. The motion carried 4-1, with Mayor Cox voting no. 3. RESOLUT]ON OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROV]NG A DES]GN-BU]LD AGREEMENT WITH YOUNG ELECTRlC S]GN COMPANY (YES CO) FOR THE DESIGN AND CONSTRUCTION OF THE CHULA VISTA AUTO PARK S]GN (C]P NO. RD248) The City has selected a contractor to design and build a freeway sign for the Chula Vista Auto Park. Adoption of the resolution awards the contract to Young Electric Sign Company. (Public Works Director) Deputy City Attorney Miller explained that further review of the environmental analysis for the project was required, and therefore staff was requesting Council consideration to remove the item from the agenda. ]t was the consensus of the Council to remove Item 3 from the agenda, and no action was taken on this item. Page 5 - Council/Housing Authority/Redevelopment Agency Minutes May 12, 2009 Ie.. 5 DRAFT ITEMS REMOVED FROM THE CONSENT CALENDAR (Continued) 6. RESOLUTION NO. 2009-108, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A PETITION AND DECLARING ITS INTENTION TO INITIATE PROCEEDINGS TO CONSIDER THE FORMATION OF AN ASSESSMENT DISTRICT FOR OXFORD STREET FOR THE PURPOSE OF FINANCING THE CONSTRUCTION OF STREET IMPROVEMENTS AND DIRECTING THE CITY ENGINEER TO PREPARE AND FILE AN ENGINEER'S REPORT AS REQUIRED BY LAW Residential properties along Oxford Street between Third Avenue and Alpine Avenue are currently without curbs, gutters and sidewalks. Additionally, the street is deteriorating. The City has received a petition signed by 25 of the 40 residents of this neighborhood requesting that a special assessment district proceeding be commenced for the purpose of financing the construction of these improvements. (Public Works Director) Theresa Acerro, Chula Vista resident, thanked the Council for its consideration to approve the proposed resolution for the formation of an assessment district for street improvements. ACTION: Deputy Mayor McCann offered Resolution No. 2009-108, heading read, text waived. Councilmember Bensoussan seconded the motion, and it carried 5-0. 7. COUNCIL RESOLUTION NO. 2009-109 AND REDEVELOPMENT AGENCY RESOLUTION NO. 2009-2004, RESOLUTIONS OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH THE ACCOUNTING FIRM OF CAPORICCI AND LARSON, CPA'S, TO PROVIDE AUDITING SERVICES, AND AUTHORIZING THE CITY MANAGER TO EXERCISE TWO ONE-YEAR OPTIONS TO EXTEND THE AGREEMENT Section 1017 of the Chula Vista Charter requires an annual independent audit of the City. The current three-year agreement with Macias, Gini & O'Connell, LLP terminated with completion of the June 30, 2008 audit report. A Request for Proposals to provide auditing services for the City and Redevelopment Agency was issued February 23, 2009. Adoption of the resolution approves an agreement with Caporicci & Larson. (Finance Director) Staff recommendation: Council adopt the resolution. Theresa Acerro, Chula Vista resident, requested that the Council conduct a public workshop for a detailed explanation of the City's annual audit process, in order to provide the public with a clearer understanding of the process. ACTION: Mayor/Chair Cox offered Council Resolution No. 2009-109 and Redevelopment Agency Resolution No. 2009-2004, headings read, text waived. Deputy Mayor/Agencymember McCann seconded the motion, and it carried 5-0. Page 6 - Council/Housing Authority/Redevelopment Agency Minutes May 12,2009 /c-~ DRAFT PUBLIC COMMENTS Luis Mendoza, Chula Vista resident, congratulated the Police Department's Special Investigation Unit for their collaborati ve efforts with other law enforcement agencies that led to the arrest and sentencing of Bcrtha Bugarin, owner of a number of medical clinic chains, one of which was located in Chula Vista, and who was convicted of performing medical procedures without a license. Mr. Mendoza suggested that the City adopt an ordinance requiring that doctors who wished to open a medical clinic have admitting privileges at a local hospital. Gary Tillman, Chula Vista resident, representing the Chula Vista Civic Association, suggested reducing salaries from the top to the bottom. Chris Altbaum, representing Chula Vista Civic Association, suggested re-negotiating the City's memorandums of understanding with its bargaining groups; and looking at staff overtime costs. He also asked whether or not the business license fee increase of $95 dollars was absorbed into the general fund. Ed Hererra, Chula Vista resident, representing the Chula Vista Civic Association, stated that reform was needed for the future and that there was a need to work together. Larry Breitfcldcr, Chula Vista resident, representing the Chula Vista Taxpaycrs Association, stated that there was a need to address the City's pension plan, overtime, and fair and open competition for City contracts; and to protect taxpayers funds, minimize service cuts, and promote economic opportunity for the community. Isabelle Espino, Chula Vista resident, representing Chula Vista Civic Association, spoke of the need for the City and community to work together and build trust. Bob Green, Chula Vista resident, recommended Council consideration for establishmcnt of a Public Budget Committee, consisting of members of the public who had opposed Proposition A, to look at budget line items and make recommendations to the Council. Russ Hall, Chula Vista resident, representing the Chula Vista Civic Association, stated that the State representatives and Port Commissioner needed to be reporting to the City. He also suggested implementing a policy to exclude reductions of public safety first responders in order to provide reassurance to the public. Guillermo Lopez, Chula Vista resident, stated that he was concerned about the impacts of the failure of Proposition A on City services. Theresa Acerro, Chula Vista resident, representing the Southwest Chula Vista Civic Association, presented a video about residents' concerns with the lack of sidewalks and drainage ditches in areas of southwest Chula Vista. PUBLIC HEARINGS 9. CONSIDERATION OF CHULA VISTA'S PORTION OF THE REGIONAL TRAi\fSPORT A TION IMPROVEMENT PROGRAJvl Page 7 - Council/Housing Authority/Redevelopment Agency Minutes May 12, 2009 le-? DRAFT PUBLIC HEARINGS (Continued) The San Diego Association of Governments (SANDAG) has notified the local agencies that requests for the July 2009 amendment to the Regional Transportation Improvement Program (RTIP) may be submitted beginning April 20, 2009. Signed resolutions must be submitted to SANDAG by June 5, 2009. The City will need to submit a request for amendment in order to add funding for projects that are included in the City's Capital Improvement Program for fiscal year 2009/2010. (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 announced Council abstentions for the following proposed resolutions on Item 9, since the proposed improvements were located within 500 feet of Councilmembers' properties: Item 9B - Councilmember Castaneda, Item 9C - Deputy Mayor McCatUl, Item 9D - Councilmember Ramirez, Item 9E - Mayor Cox. Principal Civil Engineer Rivera noted corrections to the written staff report: On page 9-6, for the North Broadway Basin Reconstruction (STM354), to replace the amount of $2,200,000 with the correct amount of$2,368,000 as indicated on page 9-25; and on page 9-7, the first line of the last paragraph, to replace Main Street with Broadway. Mayor Cox opened the public hearing. There being no members of the public who wished to speak, Mayor Cox closed the public hearing. ACTION: A. ACTION: Mayor Cox moved to adopt the following Resolution No. 2009-110, heading read, text waived: RESOLUTION NO. 2009-110, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING PART-A OF THE JULY 2009 AMENDMENT TO THE TRANSNET LOCAL STREET IMPROVEMENT PROGRAM FOR SUBMITTAL TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM FOR FISCAL YEARS 2008/2009 THROUGH 2012/2013 AND PROVIDING CERTIFICATION AND INDEMNITY STATEMENTS NECESSARY TO OBTAIN TRANSNET FUNDS Councilmember Bensoussan seconded the motion, and it carried 5-0. Council member Ramirez moved to adopt the following Resolution No. 2009-111, heading read, text waived: B. RESOLUTION NO. 2009-111, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING PART-B OF THE JULY 2009 AMENDMENT TO THE TRANSNET LOCAL STREET IMPROVEMENT PROGRAM FOR SUBMITTAL TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM FOR FISCAL YEARS 2008/2009 THROUGH 2012/2013 AND PROVIDING CERTIFICATION AND INDEMNITY STATEMENTS NECESSARY TO OBTAIN TRANSNET FUNDS Page 8 - Council/Housing Authority/Redevelopment Agency Minutes May 12, 2009 Ie-I' DRAFT PUBLIC HEARINGS (Continued) ACTION: ACTION: ACTION: E. Deputy Mayor McCann seconded the motion, and it carried 4-0-1, with Couneilmember Castaneda abstaining. Councilmember Castaneda moved to adopt the following Resolution No. 2009- 112, heading read, text waived: c. RESOLUTION NO. 2009-112, RESOLUTION OF THE CITY COUNCIL OF TI-IE CITY OF CHULA VISTA APPROVING PART-C OF THE JULY 2009 AMENDMENT TO THE TRANS NET LOCAL STREET IMPROVEMENT PROGRAM FOR SUBMITTAL TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM FOR FISCAL YEARS 2008/2009 THROUGH 2012/2013 AND PROVIDING CERTIFICATION AND INDEMNITY STATEMENTS NECESSARY TO OBTAIN TRANSNET FUNDS Couneilmemer Ramirez seconded the motion, and it carried 4-0-1, with Deputy Mayor McCann abstaining. CouneiImember Bensoussan moved to adopt the following Resolution No. 2009- 113. heading read, text waived: D. RESOLUTION NO. 2009-113, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING PART-D OF THE JULY 2009 AMENDMENT TO THE TRANSNET LOCAL STREET IMPROVEMENT PROGRAM FOR SUBMITTAL TO THE SAN DIEGO ASSOCIATION OF GOVERt'\lMENTS FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM FOR FISCAL YEARS 2008/2009 THROUGH 2012/2013 AND PROVIDING CERTIFICATION AND INDEMNITY STATEMENTS NECESSARY TO OBTAIN TRANSNET FUNDS Deputy Mayor McCann seconded the motion, and it carried 4-0-1, with CouneiImember Ramirez abstaining. Couneilmember Castaneda moved to adopt the following Resolution No. 2009- 114, heading read, text waived: RESOLUTION NO. 2009-114, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING PART-E OF TI-IE JULY 2009 AMENDMENT TO THE TRANSNET LOCAL STREET IMPROVEMENT PROGRAM FOR SUBMITTAL TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS FOR INCLUSION IN THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM FOR FISCAL YEARS 2008/2009 THROUGH 2012/2013 AND PROVIDING CERTIFICATION AND INDEMNITY STATEMENTS NECESSARY TO OBTAIN TRANSNET FUNDS CouneiImember Ramirez seconded the motion, and it carried 4-0-1, with Mayor Cox abstaining. Page 9 - Council/Housing Authority/Redevelopment Agency Minutes May 12. 2009 le-9 DRAFT CLOSED SESSION At S:05 p.m., Mayor Cox recessed the Council Meeting to convene in Closed Session. IS. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a): A. Sergio Lopez v. City of Chula Vista, et aI., US District Court, Case No. 07CVI272WQH(BLM) Item ISA was not discussed and no action was taken. B. City of Chula Vista v. Terese Loretz, et aI., San Diego Superior Court, Case No. 37 -2007 -000793 OS-CU -OR -CTRL C. Chula Vista Citizens for Jobs and Fair Competition, et al v. Donna Norris, et aI., United States District Court, Case No. 09CVOS97BBEN(JMA) No reportable action was taken on these items. 19. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b): One Case. This item was not discussed and no action was taken. The meeting reconvened at S:34 p.m. with all Councilmembers present. Mayor Cox announced that Item 14 would be removed from the agenda and would not be discussed. Councilmember Castaneda then recognized members of the audience Kart Eaton, Patty Arviza, and Jonathan Yepiz, representing the South Bay Youth 4 Change, stating that they would be speaking in support of Item 17 on the Council agenda regarding regulation of smoking in public places. ACTION ITEMS 10. CONSIDERATION OF ESTABLISHMENT OF THE CHULA VISTA TOURISM MARKETING DISTRICT FOR THE PURPOSE OF LEVYING AND COLLECTING ASSESSMENTS ON LODGING BUSINESSES The Chula Vista Chamber of Commerce and the Chula Vista Convention and Visitors Bureau, working in concert with lodging and business o\VTIers and members of the business community has prepared a plan for the formation of Chula Vista Tourism Marketing District (CVTMD) which will levy a self-assessment on motel and hotel rooms. The CVTMD will create a source of funding for renewed operation of the Convention and Visitors Bureau and for expanded promotion of tourism opportunities in the City. (Deputy City Manager/Development Services Director) Page 10 - CouncillHousing Authority/Redevelopment Agency Minutes May 12, 2009 Ie -/() DRAFT ACTION ITEMS (Continued) City Attorney Miesfeld stated that Deputy Mayor McCann would need to abstain from voting on Item 10, due to the proximity of his property' to the marketing district. Deputy Mayor McCann then left the dais. Economic Development Manager Stone gave a brief presentation about formation of the district, funding mechanisms, and assessments. Chris Boyd, Chula Vista resident, representing the Chula Vista Chamber of Commerce, spoke in support of the item, stating that it would create a mechanism for continued funding and operations of the Convention and Visitors Bureau. Discussion ensued between the Council and Mr. Boyd regarding the expenditure of funds, and the transparency and reporting of those expenditures. In response to questions from Councilmember Bensoussan, Mr. Boyd stated that the additional funding gcnerated by the assessment would expand opportunities for collaborative efforts with tourist-serving businesses, including the Olympic Training Center and Nature Center. ACTION: Mayor Cox moved to adopt the following Resolution No. 2009-115, heading read, text waived: RESOLUTION NO. 2009-115, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A PETITION AND DECLARING ITS INTENTION TO INlTIA TE PROCEEDINGS TO CONSIDER THE ESTABLISHMENT OF THE CHULA VISTA TOURISM MARKETING DISTRICT FOR THE PURPOSE OF LEVYING AND COLLECTING ASSESSMENTS ON LODGING BUSINESSES Couneilmember Castaneda seconded the motion, and it carried 4-0-1, with Deputy Mayor McCann abstaining. Deputy Mayor McCann returned to the dais at this time. 11. CONSIDERATION OF APPRO V AL OF AN ENERGY EFFICIENCY & CONSERVATION BLOCK GRANT APPLICATION TO THE DEPARTMENT OF ENERGY FOR $1,974,300, AND THE SUBMITTAL OF A LOAN APPLICATION TO THE CALIFORNIA ENERGY COMMISSION AND PARTICIPATION IN THE SDG&E ON-BILL FINANCING PROGRAM FOR UP TO $7.1 MILLION As part of the American Recovery & Reinvestment Act of 2009, the City of Chula Vista has been allocated $1,974,300 of Energy Efficiency & Conservation Block Grants (EECBG) to implement strategies to reducc energy use and lower fossil fuel emissions. Adoption of the resolutions approves submittal of the grant application and authorizes implementation of up to $7.1 million in additional financing options to invest in additional energy efficiency and renewable energy projects. The full suite of projects would eventually create $850,000 in annual municipal cost savings and reduce small business and residential property energy costs by approximately $1 million. (Director of Conservation & Environmental Services, Director of Public Works) Page 11 - Council/Housing Authority/Redevelopment Agency lVlinutes May 12, 2009 Ie -1/ DRAFT ACTION ITEMS (Continued) Director of Conservation and Environmental Services Meacham provided an overview of the Energy Efficiency and Conservation Block Grant program. Envirorunental Resource Manager Reed spoke about projects proposed to be funded with the grants and loans, and provided the benefits of each project. Director Meacham stated that staff would return with a final list of projects for Council consideration, and that a large portion of the money coming to the City would focus primarily on creating green jobs in the City. Theresa Acerro, Chula Vista resident, spoke in support of the proposed resolutions. Jennifer Badgely, representing the IBEW Local 569 Electricians Union, spoke in support of the item. She requested municipal solar be implemented first, and trained personnel be put to work immediately to create opportunities for new careers. Betsy Cory, Chula Vista resident, representing the Resource Conservation Commission, stated that the commission voted unanimously to approve the application as prepared by staff, and she urged the Council to adopt the proposed resolutions. Niclole Capretz, National City resident, representing Envirorunental Health Coalition, spoke in support of the proposed resolutions. ACTION: Councilrnember Bensoussan moved to adopt the following Resolution Nos. 2009- 116 and 2009-117, headings read, text waived: II. A. RESOLUTION NO. 2009-116, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING SUBMITTAL OF AN ENERGY EFFICIENCY & CONSERVATION BLOCK GRANT APPLICATION TO THE DEPARTMENT OF ENERGY FOR $1,974,300, AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL DOCUMENTS NECESSARY TO OBTAIN AND MANAGE GRANT FUNDS B. RESOLUTION NO. 2009-117, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUBMITTAL OF A LOAN APPLICATION TO THE CALIFORNIA ENERGY COMMISSION AND PARTICIPATION IN THE SDG&E ON-BILL FINANCING PROGRAM FOR UP TO $7.1 MILLION AND AUTHORIZING THE CITY MA..NAGER OR HIS DESIGNEE TO EXECUTE ALL LOAN AND/OR PROGRAM DOCUMENTS ASSOCIATED THEREWITH Councilmernber Castaneda seconded the motion, and it carried 5-0. Page 12 - CouncillHousing Authority/Redevelopment Agency Minutes May 12,2009 Ie ~/./- DRAFT ACTION ITEMS (Continued) 12. QUARTERLY FINANCIAL REPORT FOR THE QUARTER ENDED MARCH 31, 2009. Section 504 (f) of the City Charter requires quarterly financial reports to be filed by the Director of Finance through the City Manager. Appropriations are being requested from the available balance of the General Fund for hourly staffing of code enforcement activities, public liability expenditures and services rendered by the County of San Diego Registrar of Voters for the Proposition A ballot measure. The RDA is requesting an appropriation in order to repay the General Fund for advances the RDA has received in the past. (Finance Director) City Attorney Miesfeld announced that Councilmember Ramirez would be abstaining from voting on ltem 12C. Councilmember Ramirez left the dais at 9:40 p.m. Finance Director Kachadoorian presented the Third Quarter Financial Report and request for appropriations to the General Fund and Redevelopment Agency. Reiner Leal, Chu1a Vista resident, representing Chu1a Vistans for Community Action, requested that Redevelopment funding not be taken away, stating that by doing so, would further impair redevelopment in the City and create more problems in stabilizing the City's financial situation. City Attorney Miesfeld stated that Item 12C would be removed from the agenda and would not be discussed. Counci1member Ramirez then returned to the dais. Councilmember Castaneda suggested that staff provide the ability to register foreclosed homes on the internet. Development Services Director Halbert responded that staff would be coming back to the Council with a program that would waive the registration fee if the property was listed on a national network. Councilmember Castaneda suggested that staff find ways to automate payment of registration fces for homes not listcd on national registcrs. ACTION: Council member Castaneda moved to adopt the following Resolution No. 2009- 118, heading read, text waived: A. RESOLUTION NO. 2009-118, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $120,000 FROM THE A V AILABLE BALANCE OF THE GENERAL FUND AND AMENDING THE PERSONNEL SERVICES BUDGET FOR THE RESIDENTIAL ABANDONED PROPERTY PROGRAM BASED ON OVERREALlZED REVENUES (4/5"rI-IS REQUIRED) Councilmember Bensoussan seconded the motion, and it carried 4-1 with Deputy Mayor McCann voting no. Page 13 - Council/Housing Authority/Redevelopment Agency Minutes May 12, 2009 Ie "/-3 DRAFT ACTION ITEMS (Continued) ACTION: Mayor Cox moved to adopt the following Resolution No. 2009-119, heading read, text waived: B. RESOLUTION NO. 2009-119, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $1,450,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND FOR UNANTICIPATED PUBLIC LIABILITY EXPENDITURES AND FOR EXPENDITURES INCURRED FOR SERVICES PROVIDED BY THE COUNTY OF SAN DIEGO REGISTRAR OF VOTERS FOR THE PROPOSITION A BALLOT MEASURE (4/5THS REQUIRED) Councilmember Castaneda seconded the motion, and it carried 4-1, with Deputy Mayor McCann voting no. C. RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA AUTHORIZING AN APPROPRIATION FOR REPAYMENT FROM THE MERGED PROJECT FUND TO THE GENERAL FUl\1]) OF ADVANCES IN AN AMOUNT ESTIMATED AT $900,000 BUT WILL BE BASED ON A V AILABLE FUND BALANCE AT FISCAL YEAR END (4/5THS REQUIRED) Item 12C was removed from the agenda. 13. PRESENTATION OF THE FISCAL YEAR 2009/2010 PROPOSED OPERATING AND CAPITAL IMPROVEMENT BUDGETS (Public Works Director, Finance Director) City Manager Sandoval gave an overview of the City's Fiscal Health Plan. Finance Director Kachadoorian presented an overview of the City's budget reduction plan for the next fiscal year. Doug Jensen, Vice President, MuniServices, gave an update on sales tax projections locally, regionally and statewide. David Butler, County Assessor, presented an overview of taxes the City receives, and provided the annual percentage of change. Finance Director Kachadoorian presented the fiscal year 2010 budget update that included the projected general fund deficit, revenue adjustments, summary of expenditure adjustments, general fund reserves, net costs by department, summary of staffing reductions by department and by bargaining units since 2006/2007, and service impacts to the community. She then announced the next steps that included the City Manager's proposed budget submittal to the Council on May 26, 2009, a Council Budget Workshop on June 4, 2009, Council adoption of proposed fiscal year 2010 Budget on June 16,2009, commencement of fee reviews and overhead allocation in July 2009, and begin implementation of a zero-based budget process, and preparation for fiscal year 2010/2011 budget. Page 14 ~ Council/Housing AuthoritylRedevelopment Agency Minutes May 12, 2009 I C.-I'f DRAFT ACTION ITEMS (Continued) City Manager Sandoval then presented the proposed service delivery and workload management proposal that included closure of City Hall to the public on Fridays, evaluating cost savings of flexible work schedules, earlier Council meetings (4:00 p.m.), reduction to the number of Boards and Commissions, transition of the Gro\vth Management Oversight Commission report to a two- year cycle, changing Council subcommittees to meet during nonnal business hours, and taking on no new major work assignments or projects without corresponding reduction in current workload. Deputy Mayor McCann stated that he would like to see the Animal Shelter contracts for services with other jurisdictions in place prior to next fiscal year. Kathryn Lembo, San Diego resident, representing South Bay Community Services, spoke about the proposed cut in the Juvenile Diversion Program, stating that elimination of funding for the program would create an increase in juvenile crime and would utilize more law enforcement time. She asked the Council to find some way to fund the program at some level. Public Works Director Hopkins gave an overview of the proposed fiscal year 2009/2010 Capital Improvement Program (CIP). He then introduced Assistant Public Works Director Quilantan who presented the proposed CIP budget and projects, and noted the lack of funds available for the projects. No Council action was taken on this item. At II :22 p.m., Mayor Cox recessed the meeting. The meeting reconvened at II :35 p.m. with all Councilmembers present. 14. CITY COUNCIL CONSIDERATION OF AND POTENTIAL ACTION ON THE CITY OF CHULA VISTA'S REPRESENTATIVE ON THE UNIFIED PORT OF SAN DIEGO'S BOARD OF PORT COMMISSIONERS This item is for City Council to consider and potentially act upon the City of Chula Vista's representative on the Unified Port of San Diego's Board of Port Commissioners and to allow the eurrent Commissioner to address the City Council. Mayor Cox announced that Item 14 would be removed from the agenda. The item was not discussed and no action was taken. OTHER BUSINESS IS. CITY MANAGER'S REPORTS City Manager Sandoval announeed that the Council Meeting of May 19, 2009 would be cancelled due to a lack of agenda items. He commented that should the upeoming propositions by the State fail, the State would be looking to cities for additional funding, which could impaet the City by approximately $4 million. To that end, he recommended the City's participation in the League of California Cities "Save our Cities" campaign to oppose the borrowing of monies from cities, by the Governor's Office. Page 15 - Council/I-lousing Authority/Redevelopment Agency rvtinutes May 12, 2009 /C - 15" DRAFT OTHER BUSINESS (Continued) City Attorney Miesfeld advised that since the matter was not on the agenda, if the need for action came to the City's attention subsequent to the posting of the agenda, the Council could take emergency action to adopt a resolution, which would require a 4/5ths vote by the Council. ACTION: Council member Castaneda moved to take immediate action, declaring that the need for the action came to the attention of the City subsequent to the agenda being posted. Councilmember Bensoussan seconded the motion, and it carried 5- O. ACTION: Mayor Cox moved to adopt the following Resolution No. 2009-121, heading read, text read: RESOLUTION NO. 2009-121, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA FINDING A SEVERE FISCAL HARDSHIP WILL EXIST IF ADDITIONAL LOCAL PROPERTY TAX AND IN-LIEU TAX FUNDS ARE SEIZED AND ADDITIONAL UNFUNDED MANDATES ARE ADOPTED BY THE STATE OF CALIFORNIA Councilmember Castaneda seconded the motion, and it carried 5-0. 16. MAYOR'S REPORTS Mayor Cox announced the recent opening of the Los Vecinos housing project that would be home to 42 low-income families. She thanked City staff that worked to move the project forward. She also commented on the success of the recent International Friendship Games. City Council consideration to place the Fair and Open Competition Ordinance, submitted by its proponents on March 13, 2009, on the ballot for the June 8, 2010 General Municipal Election. Mayor Cox provided the cost saving benefits of placing the proposed Fair and Open Competition Ordinance on the June ballot. George W. Hawkins, La Mesa resident, representing the Association of Builders and Contractors, asked that the measure be placed on the June 2010 ballot. The following members of the public spoke in opposition to the City Council placing the proposed measure on the ballot: Paul Vauchelet, San Diego resident Jennifer Badgley, San Diego resident, representing IBEW Local 569 Tom Lemmon, San Diego resident, representing San Diego Building and Construction Trades Council Humberto Peraza, Chula Vista resident, representing Congressman Bob Filner Lorena Gonzalez, San Diego resident, representing Labor Council Alexandra Hart, San Diego resident, representing IBEW Local 569 Evan McLaughlin, San Diego resident, representing San Diego-Imperial Counties Labor Council Page 16 CounciVHousing AuthorityfRedevelopment Agency Minutes May 12, 2009 Ie -ICe. DRAFT OTHER BUSINESS (Continued) The following members of the public did not wish to speak, but submitted speaker slips indicating opposition to the City Council placing the measure on the ballot: Julie Gelfat, San Diego resident, representing lBEW 569 Kirk Staff; San Diego resident, representing IVP A T ACTION: Mayor Cox moved to place the Fair and Open Competition Ordinance on the ballot for the June 8, 2010 General Municipal Election. Deputy Mayor McCann seconded the motion. The motion failed 2-3, with Councilmembers Castaneda, Ramirez and Bensoussan voting no. 17. COUNCILMEMBERS' COMMENTS Deputy Mayor McCann thanked the Wakeland Corporation on the Los Vecinos housing project and its use of recyclable and energy-saving materials. I-Ie thanked City staffmcmbers Meacham and Reed for the presentation on energy and cost savings measures for the City. He also stated that he hoped everyone had a great Mother's Day. Councilmember Castaneda commented that he enjoyed his time spent celebrating Mother's day with his mother, and he congratulated and thanked Councilmember Ramirez on success of the recent International Friendship Games. Councilmember Castaneda: Discussion regarding Chula Vista Municipal Code Chapter 8.22, Regulation of Smoking in Public Places and Places of Employment Couneilmember Castaneda spoke about the City's enforcement regulations on smoking in public places. He then introduced Kat! Eaton, San Diego resident, representing South Bay Youth 4 Change, who commented on the City's smoke-free outdoor dining ordinance, and she recommended further enforcement by the City. She also suggested that the City send reminder letters to local restaurants and cafes of its no-smoking ordinance, the display of clear and visible signage, and the removal of smoking receptacles from outdoor dining areas. She added that the County's Health and Human Services Department may be able to provide assistance with graphic design for smoke-free outdoor dining establishments, and she submitted a sample logo to the Council. Councilmember Castaneda stated that he would be working with the South Bay Youth 4 Change towards a partnership with the Chamber of Commerce, to inform dining establishments of the City's smoking regulations, with an update to the Council in the future. Councilmember Ramirez commented on time spent with his mother on Mother's Day. He spoke in support of doing more with respect to the City's smoke-free ordinance regulations. I-Ie commented on the success of the recent International Friendship Games that drew over 800 athletes who competed in different events. He stated that he looked forward to holding the event again next year, and thanked the event sponsors and City staff. He announced the Kiwanis Bicycle Rodeo on May 16,2009 at Lauderbach Park, with an opportunity to learn about bicycle safety, and free bicycle helmets and food. He then asked about the status of a prior request by Councilmember Castaneda, of a portrait of President Obama for display in City Hall. City Manager Sandoval responded that the order was noted by the White House and would be forthcoming. Page 17 - Council/i-lousing Authority/Redevelopment Agency Minutes May t 2, 2009 /C-/7 DRAFT OTHER BUSINESS (Continued) Councilmember Bensoussan thanked Councilmember Ramirez on the success of the International Friendship games, commenting that it was a great cross-border event. She referenced earlier comments about smoking in public places, and was hopeful of Council's future consideration of adoption of the Third Avenue Village Association's proposed Outdoor Dining Ordinance. She congratulated the Wakeland Company on the success of the Los Vecinos housing project. To that end, she suggested that similar art elements from the Los Vecinos project be incorporated into the Third Avenue Streetscape Master Plan. She commented on the recent Revitalization Subcommittee meeting that included a staff presentation about enterprise zones, and she suggested that staff take advantage of opportunities to expand the City's enterprise zones, primarily for those businesses located south of Main Street. She also commented on a previous Revitalization Subcommittee meeting about a community gardens concept, and she urged the Council to implement a policy for its ability to pursue grant funding for the implementation ofa community garden pilot project. Deputy Mayor McCann left the dais at 12:53 a.m. ACTION: Mayor Cox moved to change the meeting time to 4:00 p.m. for the May 26, 2009 Council meeting. Councilmember Castaneda seconded the motion, and it carried 4-0, with Deputy Mayor McCann absent from the dais. CLOSED SESSION Closed Session Items were taken out of order and heard after Item 9. ADJOURNMENT At 12:54 a.m., Mayor Cox adjourned the meeting to the Regular Meeting of May 26,2009 at 4:00 p.m. in the Council Chambers. ~~ Lorraine Bennett, CMC, Deputy City Clerk Page 18 - Council/Housing Authority/Redevelopment Agency Minutes May] 2, 2009 /c-/p DRAFT MINUTES OF A SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA May 12,2009 5:30 P.M. A Special Meeting of the City Council of the City ofChula Vista was called to order at 5:30 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL PRESENT: Councilmembers Bensoussan, McCann, Ramirez, and Mayor Cox ABSENT: Councilmember Castaneda ALSO PRESENT: City Manager Sandoval, Deputy City Attorney Shirey, and City Attorney Miesfeld CLOSED SESSION I. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LlTlGA TION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b): One Case. No reportable action was taken on this item. ADJOURNMENT At 6:00 p.m., Mayor Cox adjourned the meeting to the next Regular Meeting of the City Council, May 12,2009 at 6:00 p.m. in the Council Chambers. ~? :z::=- Lorraine Bennett, CMC, Deputy City Clerk / lJ-/ . 1(\\0';\ \>-\)0 ORDINANCE NO. -0 \>-';\\) X;.\>-<;)\\ ORDINANCE OF mE CITY OF CMBL'i};I VISTA APPROVING AMENTIMENTS TO THE GA llE\W'Xy' CHULA VISTA SPECrFIC PLA1'1 (pCM-OO-ll) FOR 4.46 ACRES AT THE NORTHWEST COR,'1ER OF THE INTERSECTION OF "H" STREET A.ND THIRD AVENUE I. RECITALS A Project Site WHEREAS, the area of land, which is the subject of this Ordinance is diagrammatically represented in Exhibit A attached hereto and incorporated herein by this reference, and commonly known as Gateway Chula Vista, and for the purpose of general description consists of 4 46 acres located at the northwest corner of the intersection of "H" Street and Third Avenue ("Project Site" or "Project"); and B. Project; Application for Discretionary Approvals W1ffiREAS, a duly verified application was filed with the Development Services Department on April 23, 2009, by Gateway Chula Vista 2, LLC, requesting approval of amendments to the Gateway' Chula Vista Specific Plan; and C. Prior Discretionary Approvals WHEREAS, development of the Project Site has been the subject matter of various entitlements and agreements, including: (I) adopting a Mitigated Negative Declaration and approving a General Plan Amendment to the Circulation Element to reclassify H Street between Third and Fourth Avenue from a six lane major street to a four lane major street previously approved by Redevelopment Agency Resolution No 1708 (Council Resolution 2000-465) on December 12, 2000; and 2) approving a Specific Plan (pCM-OO-ll) approved by City Council Ordinance No.2828 on December 19,2000; and D. Planning Commission and Chula Vista Redevelopment Corporation Record of Application WHEREAS, the Planning Commission set the time and place for a hearing on the Project, and notice of the hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City, and its mailing to propeny o"'ners within 500 feet of the exterior boundary of the Project, at least ten (10) days prior to the hearing; and WHEREAS, the Planning Commission held an advertised public hearing on the Project on July 22, 2009, and voted 6-0-1-0 to forward a recommendation to the City Council on the Project; and 2-1 Ordinance No. Page 2 WHEREAS, the proceedings and all evidence introduced before the Planning Commission at the public hearing on the Project held on July 22, 2009, and the minutes and resolution resulting therefrom, are hereby incorporated into the record of this proceeding; and WHEREAS, the Chula Vista Redevelopment Corporation held an advertised public hearing on this Project on July 23, 2009, at 4 p.m. in the City Council Chambers at 276 Fourth Avenue and after hearing staff presentation and public testimony, voted 5-0-1-1 to recommend that the City Council approve the Specific Plan amendment, in accordance with the fmding listed below; and WHEREAS, the proceedings and all evidence introduced on this Project before the Chula Vista Redevelopment Corporation at their public hearing held on July 23, 2009, and the minutes and resolutions resulting therefrom, are hereby incorporated into the record of this proceeding; and E. City Council Record of Application WHEREAS, the City Clerk set the time and place for the hearing on the Project application and notices of the 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 feet of the exterior boundaries of the Project at least ten (10) days prior to the hearing; and WHEREAS, the duly called and noticed public hearing on the Project was held before the City Council of the City ofChula Vista on August 11, 2009, in the Council Chambers in the City Hall, City of Chula Vista Civic Center, 276 Fourth Avenue, at 4:00 p.m. to receive the recommendations of the Planning Commission, and to hear public testimony "ith regard to the same; and F. Discretionary Approvals Ordinance WHEREAS, at the City Council hearing at which this Ordinance was introduced for first reading, the City Council approved amendments to the Gateway Chula Vista Specific Plan; and G. Environmental Determination WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act ("CEQA") and has determined that the project was covered in previously adopted Final Mitigated Negative Declaration, IS- 99-24. The Environmental Review Coordinator has determined that only minor technical changes or additions to this document are necessary and that none of the conditions described in Section 15162 of the State CEQA Guidelines calling for the preparation of a subsequent document has occurred; therefore, the Environmental Review Coordinator has prepared an Addendum to Final Mitigated Negative Declaration, 1S-99-24, referred to as "Gateway Chula Vista: H Street and Third Avenue." 2-2 Ordinance No. Page 3 II. NOW THEREFORE BE IT ORDAINED, that the City Council of the City ofChula Vista does hereby find and determine as follows: A. CERTIFICATION OF COMPLIANCE WITH CEQA That the Environmental Review Coordinator has reviewed the proposed project for compliance "1th the California Emironmental Quality Act ("CEQA") and has determined that the project was covered in previously adopted Final Mitigated Negative Declaration, IS- 99-24. That the Environmental Review Coordinator has determined that only minor technical changes or additions to this document are necessary and that none of the conditions described in Section 15162 of the State CEQA Guidelines calling for the preparation of a subsequent document has occurred; therefore, the Environmental Review Coordinator has prepared an Addendum to Final Mjtigated Negative Declaration, IS-99-24, referred to as "Gateway Chula Vista: H Street and Third Avenue." B. INDEPENDENT WDGEMENT OF CITY COUNCIL That the City Council has exercised their independent review and judgment and concurs with the Environmental Review Coordinator's determination that the Project was covered in previously adopted Final Mitigated Negative Declaration, IS-99-24. and that only minor technical changes or additions to tills document are necessary and that none of the conditions described in Section 15162 of the State CEQA Guidelines calling for the preparation ofa subsequent document has occurred; and therefore, the Environmental Review Coordinator has prepared an Addendum to Final Mitigated Negative Declaration, IS-99-24, referred to as "Gateway Chula Vista: H Street and Third A venue." C. CONSISTENCY WITH GENERAL PLAN The City Council finds that the proposed amendments to tbe Gateway Chula Vista Specific Plan are consistent v.ith the City of Chula Vista General Plan. The proposed amendments to allow educational and training uses, modifY provisions for temporary and accessory uses and other miscellaneous amendments will not result in additional traffic generation nor demand for additional parking and are consistent v.itb other types of uses currently permitted by the Specific Plan. III. NOW THEREFORE BE IT FURTHER ORDAINED, that the City Council of the City of Chula Vista does hereby approve the amendments to the Gateway Chula Vista Specific Plan as represented in Exillbit B. 2-3 Ordinance No. Page 4 IV. EFFECTIVE DATE This ordinance shall take effect and be in full force on the thirtieth day from and after its final adoption. Presented by Approved as to form by Gary Hal ber! Deputy City Manger/Development Services Director J:lArrorneyIMichllcISh\Gateway\SPlGatewaySpecificPI;u'lAmcndmenI-CC-Ord-7.22.09.0raft 2.doc 2-4 CITY COUNCIL AGENDA STATEMENT ~(f? CllY OF ~CHULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: 9/1/09, Item~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS A.1'ID AWARDING THE CONTRACT FOR THE "ROBINHOOD RANCH UNIT II, SEWER PUMP STATION IMPROVEMENTS (SW256)" TO CLEAR SOLUTION ENVIRONEERING, INC., IN THE A.1'vIOUNT OF S232,626.50 AI\1J) AUTHORIZING THE EXPENDITURE OF ALL A V AILABLE FUNDS IN THE PROJECT cJ"' DIRECTOR OF PUBLIC WORKS(/~. .. CITY MANAGER 6- S'/ ASSIST ANT CITY MANAGER S ') 4/5THS VOTE: YES D NO cg] SUMMARY On July 29, 2009, the Director of Public Works received sealed bids for the "Robinhood Ranch Unit II, Sewer Pump Station Improvements (SW256)" Project The work to be done consists of the removal and disposal of existing improvements, constmction of a pump station building facility and wet-well stmctures. The work also includes all labor, material, equipment, transportation, protection and restoration of existing improvements necessary for the project as shown on the drawings. . ENVIRONMENT AL 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 I categorical exemption pursuant to Section 15301 (Existing Facihties) of the State CEQA Guidelines because the project does not involve the expansion of existing sewer facilitIes. Thus, no further environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOlVIMENDA nON Not applicable. DISCUSSION The general scope of the Robinhood Ranch Unit II, Sewer Pump Station Improvements project involves the removal and disposal of existing improvements, constmction of a new pre-cast wet- 3-1 9/1/09, Item2- Page 2 of 3 well, new sewer pumps, plpmg fittings, valves and appurtenances, new concrete slab, sewer manhole, trenching, removal and relocation of existing sewer lines, and construction of a pump station concrete block building facility. The work also includes all labor, materials, equipment, transportation, protection of existing improvements and traffic control necessary for the project and other work necessary to complete the project. On July 29,2009, the Director of Public Works received nine (9) bids for the "Robinhood Ranch Unit II, Sewer Pump Station Improvements (SW256)" Project. The following bids were recei ved: CONTRACTOR BID AMOUNT I. Clear Solutions Environeering, Inc.- Yuma, AZ $232,626.50 2. A.B. Hasmi, Inc. - Oceanside, CA $235,802.00 3. Cass Construction, Inc. - El Cajon, CA $266,175.00 4. Falcon General Engineering, Inc. - Vista, CA $268,235.00 5. NCC Newest Construction Company, Inc. - San Diego, CA $290,445.00 6. RSH Construction, Inc. - Palm Springs, CA $325,739.00 7. TC Construction Co. - Santee, CA $339,970.00 8. Palm Engineering Construction Co. - San Diego, CA $389,700.00 9. Caliagua Inc. - Chino, CA $441,148.00 The low bid submitted by Clear Solutions Environeering, Incorporated of Yuma, AZ is below the Engineer's estimate of $290,000 by $57,373.50 (20% below the Engineer's estimate); much of this difference can be attributed to the high degree of competition currently within the construction market. Design staff has verified the references provided by the contractor and has determined that the contractor has performed satisfactorily for those references. The Contractor's License No. 906484A is current and active. Also for consideration is the authority of the Director of Public Works to approve change orders over and above existing policy limits. Under City Council Policy No. 574-01, if an individual change order causes the cumulative increase in change orders to exceed the Director's authority CMaximum Aggregate Increase in Change Orders"), then City Council approval is required. The contract amount for the subject project is $232,626.50. The corresponding maximum aggregate contract increase that may be approved by the Director of Public Works under Policy No. 574-01 is $19,283.86. Approval of tonight's resolution will increase the Director of Public Works' authority to approve change orders as necessary up to the contingency amount of $46,525.30, an increase of $27,241.44 and will authorize staff to expend all available contingencies and to increase the value of the contract, as necessary, as a result of unforeseeable conditions and unit quantity adjustments. Unforeseen conditions include such items as utility conflicts, hazardous materials, unexpected underground conflicts, etc. If the contingency funds are not used, then they will be returned to the project fund balance. Disclosure Statement Attached is a copy of the contractor's Disclosure Statement as Attachment I. 3-2 9/1/09, ltem~ Page 3 of 3 Wage Statement Contractors bidding on this project were required to pay prevailing wages to persons employed by them for work under this project. No special minority or women owned business requirements were necessary as part of the bid documents. However, the "Notice to Contractors" was sent to various trade publications in order to encourage disadvantaged businesses to bid on the project. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that the decision concerns repairs, replacement, or maintenance of existing streets or similar facilities and, therefore, there is not a material financial effect of the decision on the property holdings of the City Council Members pursuant to California Code of Regulations sections 18704.2(b)(2) and 18705 .2(b)( 1). FISCAL IMPACT There is no impact to the General Fund as there are sufficient Sewer Facility Replacement Fee Funds in the existing CIF SW256 necessary to complete the project. A breakdown of the project costs is as follows: FUl'iDS REQUIRED FOR CONSTRUCTION A. Contract Amount $ 232,626.50 B. Contingencies (20%) 46,525.30 C. Staff Time & Testing Costs l. Construction Inspection (17%) 40,000.00 2. Design/Construction Management (35%) 85,000.00 3. EnvironmentallTrafficfPublic Works (2%) 10,000.00 4. Survey/Construction Staking (8%) 22,000.00 5. Soil & Material Testing (3%) 10,000.00 TOTAL FUNDS REQUIRED FOR CONSTRUCTION S446, [51.80 Sufficient funds are available in the SW256 project account to complete constmction. ON-GOING FISCAL IMPACT: Upon completion of the project, the improvements will require only routine City maintenance. ATTACHMENTS I. Contractor's Disclosure Statement Prepared by: Luis A. Labrada, P.E., Associate Civil Engineer, Public Works Department N:\General Services\Design\All Projects\SW\SW256\Al13\SW256 AID .doc 3-3 ,:r~" {~. .~ :~ .-~ " :~ " ~~~~. " , ~ '~ .,t;. ~. ~. .~ ;, ~~- .~ -::", ',) ~) '~1 'i ~ 1 ~ .~ .. '! 'H, ';, ., ~: "~ ',1 .~ .~ (( '''" 'r '1 ; ,1<' ! ~r 1~ " , "\ .. t ATTACHMENT I CITY OF CHULA VISTA DISCLOSURE STATEMENT pursuant to Council Policy 101-01, prior to any action upon matters h'tat will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or [mancial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: I. List the names of all persons having a [mancial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. ~I\.::\P\-\ K. f\)AIS ?Q~c.." "t>~t- \ )U\~e;'t Q. \J{;fr:tk <).eU2..r;;(~1 2. If any person' identified pursuant to (1) above is a co oration or partnership, list the names of all individuals with a $2000 investment in the business 'corooratio paItBBr3hip) entity. In:T61-'\ K: Si)A~c. ~ )~A.tJ E;\.{ ~. \J;:j c"A r PR.I::;-S 11)'::;"\T 'Ser.Rr::;--rA {.I..'f 3. If any person' identified pursuant to (I) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. IJ/o.. I 4. Please identify every person, including any agents, employees, consultants, or independent. contractors you have assigned to represent you before the City in this matter. Oil'> G' t2-D'1:>.e -r ("", \A.f.i'<] SOL;,~ \2:::,. 12-::t.e>5 ?/2..O<Ir-('::T H )>..,,11>. (." G-i'2. '\" R..o.-rl-::?c..--r c..-oo'/2..\:> \ klA rOJe.. 5. Has any person' associated with t..llls contract had any financial dealings with an official" of)f1e City ofChula Vista as it relates to this contract within the past 12 months? Yes_ No~ If Yes: briefly describe the namre of the financial iu.teres~ the officiaJ** may bave in this contract. 3-d ~i :j .~ ~ .~ 6. Have you made a contribution of more than $25..0 witilln the past twelve (12) months to a current member of the Chula Vista City Council? No.i: Yes _liyes, which Council member? N'/A / Have you provided more than $340 (or an item ;!,7uivalent value) to an official" of the City of Chula Vista in the past twelve (12) months? (1J0 includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No_ 7. If Yes, which official" and what was the nature of item provided? NIt+. I Date: 7/2?:>/ Ocr I I ~~~ (fcature of Contractor! A icanr.... ~.:::: ~")~""'''''''A l-i"Z...- Print or type name of Contractor! Applicant , Person is defmed as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. " Official includes, but is not limited to: Mayor, CouDcil member, Planning Co=issioner, Member of a board, commission, or committee of the City, employee, or staff members. 31~ RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS Ai'JD A WARDING THE CONTRACT FOR THE "ROBINHOOD RANCH UNIT II, SEWER PUMP STATION IMPROVEMENTS (SW256)" TO CLEAR SOLUTION ENVIRONEERlNG, INe., IN THE AMOUNT OF $232,626.50 Ai'JD AUTHORIZING THE EXPENDITURE OF ALL A V AILABLE FUNDS IN THE PROJECT WHEREAS, City staff prepared plans and specifications for the "Robinhood Ranch Unit II, Sewer Pump Station Improvements (SW256)" Project and advertised the project on June 26, 2009; and WHEREAS, on July 29,2009, the Director of Public Works received nine (9) sealed bids for the project as follows: CONTRACTOR BID AMOUNT I. Clear Solutions Environeering, Inc.- Yuma, AZ $232,626.50 2. A.B. Hasmi, Inc. - Oceanside, CA $235,802.00 3. Cass Construction, Inc. - EI Cajon, CA $266,175.00 4. Falcon General Engineering, Inc. - Vista, CA $268,235.00 5. NCC Newest Construction Company, Inc. - San Diego, CA $?90,445.00 6. RSH Construction, lnc. - Palm Springs, CA $325,739.00 7. TC Construction Co. - Santee, CA $339,970.00 8. Palm Engineering Construction Co. - San Diego, CA $389,700.00 9. Caliagua Inc. - Chino, CA $441,148.00 WHEREAS, staff reviewed the low bid proposal in the amount of $232,626.50, submitted by Clear Solutions Environeering, Inc. of Yuma, AZ; and WHEREAS, the low bid by Clear Solutions Environeering, Inc is below the Engineer's estimate of $290,000 by $57,373.50 (20%). Staff has verified the references provided by the contractor with satisfactory results. The contractor has performed various work for other Cities and Counties and their work has been satisfactory; and WHEREAS, Pursuant to Council Policy No. 574-01, the Director of Public Works has the authority to approve change orders in an aggregate amount not to exceed $19,283.86; however, such amount may be increased with Council approval; and WHEREAS, staff requests that City Council increase the Director of Public Works' authority to approve change orders to a cumulative amount not to exceed $46,525.30, in order to ensure that the contract may be completed expeditiously. 3-6 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept bids and award contract for the "Robinhood Ranch Unit II, Sewer Pump Station Improvements (SW256)" Project to Clear Solutions Environeering, Inc. in the amount of $232,626.50. BE IT FURTHER RESOLVED that the City Council of the City Of Chula Vista does hereby authorize the increase in the Director of Public Works' authority to approve change orders in order to permit the expenditure of all available funds in the project. Presented by Richard A. Hopkins Director of Public Works 3-7 CITY COUNCIL AGENDA STATEMENT ~ \ ft,- CITY OF ~CHULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: 9/1/09, Item~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A GRANT DEED CORRECTORY DEED FOR EXCESS RIGHT-Of-WAY ADJOINING STATE ROUTE 125 DESIGNATED AS SAt'\! DIEGO COUNTY ASSESSOR'S PARCEL NUMBER 595-030-25 (R/W 33255) FROM CALTRANS RESOLUTION OF THE CITY COUNCIL OF THE CITY Of CHULA VISTA ACCEPTING DIRECTOR'S DEEDS fOR EXCESS RIGHT-Of-WAY ADJOINING STATE ROUTE 125 PARCELS DESIGNATED AS CALTRANS PARCEL NUMBERS DK-32045- 01-01, DD-32034-01-02, DD-32113-1 AND DD-32019-03-03 RESOLUTION OF THE CITY COUNCIL OF THE CITY Of CHULA VISTA GRANTING EASEMENTS FOR ELECTRICAL PURPOSES l.iPON AND ACROSS PORTIONS Of CITY OWNED PROPERTY DESIGNATED AS SAN DIEGO COUNTY ASSESSOR'S PARCEL NU?vIBERS 595-410-14 (R/W 34495) ANTI 643-060-23 (R/W 34494) AS PART Of THE STATE ROUTE [25 PROJECT ANTI AUTHORIZING THE MAYOR Al\'D ClTY CLERI( TO EXECUTE ALL DOCUMENTS NECESSARY TO RECORD THE EASEMENT t& DIRECTOR Of PUBLIC WORKS " . CITY MANAGER tf- "7"'- ASSISTAt'\!T CITY MANAGER sr 4/5THS VOTE: YES 0 NO cg] SUMMARY The State Route 125 Toll Road project was approved as a "Design-Build" facility. Due to the final approved geometric alignment of the toll road, off-ramps and on-ramps, and the need to protect established landscaping on local streets, there are some portions of parcels imtially anticipated to be a part of State Route 125 that have been deemed by the California Department of Transportation (Caltrans) to be not necessary for the toll road. Adoption of these Resolutions will resolve the remaining right-of-way issues related to the construction of the SR-125 Toll Road and provide easements for drainage, electrical and utility purposes. 4-1 9/1/09, Item if Page 2 of 5 ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed actions for compliance' with the California Environmental Quality Act (CEQA) and has determined that each proposed action is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA Thus, no further environmental review is necessary, RECOMMENDATION Council adopt the resolutions, BOARDS/COMMISSION RECOMMENDA nON Not applicable, DISCUSSION On April 16, 2002, the City of Chula Vista entered into the "City of Chula Vista Toll Road Agreement with San Diego Expressway Limited Partnership and Agreement Affecting Real Property" to facilitate development of the SR-125 toll road through the city of Chula Vista, This agreement set forth the terms and conditions for the City's transfer to Caltrans of title to City- owned property that had been set aside for the toll road, Most of this land was acquired by the City through dedication by developers of land within the city, Pursuant to this Agreement, the City has previously transferred title to the City-owned parcels to Caltrans, With the construction of the toll road pretty much completed, South Bay Expressway (SBX), the franchise operator, has advised the City that in order to close out the project, the right-of-way must be finalized to comply with the as-built condition of the road and Caltrans right-of-way requirements, California Department of Transportation (Caltrans), SBX and City of Chula Vista staff have identified certain minor adjustments that are needed at four locations; Birch Road, East H Street, Olympic Parkway and Otay Lakes Road, The primary reason for these minor right-of-way adjustments is to retain mature trees that are part of the local street landscaping outside of the State right-of-way, Other reasons are that now that the infrastructure is completed, these slight adjustments in right-of-way will coincide with the landscaping inigation systems and appurtenances and better delineate areas of responsibilities for the local street and the freeway corridor. Easements are also needed on the City's public right-of-way for traffic signal vehicle detection equipment and the fencing sunounding the emergency power generator equipment. As part of the State Route 125 construction project, it was necessary to make minor adjustments in the alignment and/or final "as-built" design of the toll road, Previous Council action on September 25, 2007, Resolution 2007-239 approved the transfer of City owned parcels and easements and relinquished access rights to Caltrans, Resolution 2007-240 accepted the transfer ofCaltrans owned parcels to the City for the final alignment of the toll road, Construction on the local streets is completed, For the toll road, of importance to the City is the completion of two emergency tum-arounds located in the median area, The design of these facilities was recently completed, reviewed and approved by City Engineering staff and the City's Fire Marshall. The two emergency tum-arounds will be located within the graded median 4-2 II 9/1/09, Item~ Page 3 of 5 area of the toll road, one near the northerly City limits in the vicinity of the San Miguel Ranch subdivision and the other located just north of the Otay River Bridge in south Chula Vista. These emergency turn arounds will be constructed within the next couple of months and do not affect the right-of-way for the project. Based on the final construction of improvements, it is necessary for the Department of Transporation (Caltrans) to grant to the City of Chula Vista portions of certain State-owned parcels in fee as well as several easements. Thus, Caltrans will grant to the City of Chula Vista portions of parcels of excess land that ended up outside of the final right-of-way of SR-125. Caltrans Parcels to the Citv of Chula Vista There are two parcels that will be deeded to the City of Chula Vista in fee. These two parcels are excess land that fall outside of the SR-125 right-of-way and are no longer needed for the purpose intended. Parcel 32019-03-01 falls entirely within Birch Road and the other parcel runs along the northbound easterly right-of-way within Parcel 3 of Parcel Map 18481. The combined area of these two parcels is 0.96 acre. See Attachment "A" for details of these parcels. Birch Road . Director's Deed DD 32019-03-03 for a portion of Birch Road (11-SD-125-9.2). The State of California has determined that there is excess right-of-way along the southwest quadrant of the interchange. ThIS area is along the south curb lme of Birch Road and west of the southbound on-ramp and will allow for existing trees to be maintained in the area. The area is approximately 579 square meters (6,232 square feet or 0.14 Acres) (Attachment I). · Easement Deed R1W 34494 located at APN 643-060-23 for the Birch Road generator pad (11-SD-125-7.4). This easement is granted to Caltrans for electrical purposes related to the back up power generator appurtenances located at the northbound off-ramp area along the south side of Birch Road. The area is approximately II square meters (118 square feet or 0.0027 Acres) (Attachment 2). East H Street · Director's Deed (Quitclaim) DK 32045-01-01 for APN 595-192-13 for a portion along East H Street (1l-SD-125-12.2). The State of California has detennined that there is excess right-of-way along the northeast quadrant of the interchange and that there no longer exists a requirement for rights of access to the state. This area is being released and quitclaimed by the State to Southbay Expressway, L.P. then to the City of Chula Vista. This document refers to access rights only, no square footage involved. (Attachment 3). . Easement Deed R1W 34495 at APN 595-410-14 for the East H Street generator pad (11- SD-125-11.9). Located at the southeast quadrant of the interchange, this easement IS granted to Caltrans for electrical purposes related to the back up power generator appurtenances located at the northbound off-ramp area along the south side of East H Street. The area is approximately 12 square meters (129 square feet or 0.003 Acres) (Attachment 4). 4-3 9/1/09, Hemi Page 4 of 5 . Grant Deed Correctory Deed for APN 595-030-25 for East H Street located west of SR- 125 (11-SD-125-12.1) R/W 33255. This grant deed is to revise the right-of-way on East H Street for the benefit of retaining developer installed trees in the area, is located in the vicinity of the southbound off-ramp. These trees will remain within the City of Chula Vista right-of-way north of the north curb line and as such, the original Grant Deed needs to be revised to reduce this area so that it does not remain with the State right-of-way. Thus, this Correctory Deed reduces in size by 8,277 square feet or 0.19 Acres back to the City of Chula Vista from 8,534 square meters (91,859 square feet or 2.109 Acres) to an area of approximately 7,765 square meters (83,582 square feet or 1.919 Acres). The parcel will be granted to the State of California. This portion of East H Street was originally conveyed to the State of California per Document 2007-0723413 and recorded on November 16, 2007 (Attachment 5). Olympic Parkwav . Director's Deed DD 32113-1 for a portion of Olympic Parkway (11-SD-125-9.0). This portion of Olympic Parkway was conveyed to the State of California per document 2006- 0380362 and recorded on May 30, 2006. This area is located in the northeast quadrant of the interchange generally along the Eastlake Terraces Shopping Center. This portion of Olympic Parkway will be granted back to the City of Chula Vista in order to retain the five-palm tree cluster and landscaping area but will provide for an easement to the State for drainage and general utilities over and above the described property. The area is approximately 320 square meters in area (3,445 square feet or 0.079 Acres) (Attachment 6). Otav Lakes Road o Director's Deed DO 32034-01-02 (33171-01-01) (I1-SD-125-10.3) for a portion ofOtay Lakes Road. The State will be granting to the City of ChuIa Vista an area of approximately 426 square meters (4,585.5 square feet or 0.105 Acres) along the north side of Otay Lakes Road and west of the southbound off-ramp. This area is considered excess right-of-way for the State of California and allows existing trees installed by the developer to remain along the north side of the local street (Attachment 7). DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property, which is the subject ofthis action. CURRENT FISCAL IMPACT There is no impact to the General Fund as a result of this action. ONGOING FISCAL IMPACT Tonight's action is to make final right-of-way adjustments along the State Route 125 corridor at the local street crossings. Since the local street landscaping and roadway maintenance is the responsibility of the local agency to maintain, and these areas are already maintained through City administered landscaping maintenance districts, there are no additional costs incurred. 4-4 9/1/09, ItemL Page 5 of 5 Those landscaping areas and pavement areas pertaining to the on/off-ramps and within the State right-of-way, not on the local street, are the responsibihty of South Bay Expressway to maintain to Caltrans' standards and as such are not a cost to the. City of Chula Vista.. ATTACHMENTS 1. Director's Deed DD 32019-03-03 for Birch Road (11-SD-125-9.2). 2. Easement Deed RlW 34494 for APN 643-060-23 for Birch Road generator pad (II-SD- 125-7.4). 3. Director's Deed (Quitclaim) OK 32045-01-01 for APN 595-192-13 for East H Street (11- SD-125-12.2). 4. Easement Deed RIW 34495 for APN 595-410-14 for East H Street generator pad (l1-SD- 125-11.9). 5. Grant Deed Correctory Deed RlW 33255 for APN 595-030-25 for East H Street. 6. Director's Deed DD 32113-1 for Olympic Parkway (11-SD-125-9.0). 7. Director's Deed DD 32034-01-02 (33171-01-01) ll-SD-125-10.3 for Otay Lakes Road Prepared by: Rick Ryals, Real Property Manager, Public Works Department Francisco X. Rivera, Principal Civil Engineer, Public Works Department M,IEngincerIAGENDA ICAS2009109-0 1-09ISR-125 Excess Right-of- Way. doc 4-5 ATTACHMENT STATE OF CALIFORNIA HIGHWAY USAGE STATE BUSINESS FREE GOVT CODE 6103 DEPARTMENT OF TRANSPORTATION DISTRICT 11 When recorded mail to: State of California Department of Transportation 4050 Taylor Street M.S. 310 San Diego, CA 92110 Space above this line for Recorder's Use RNV MAP CLO 52017m EA232302_ DIRECTOR'S DEED District Countv Route Post Number 11 SO 125 92 DO 32019-03-03 The STATE OF CALIFORNIA, acting by and through its Director of Transportation, does hereby grant to THE CITY OF CHULA VISTA all that real property in the CITY OF CHULA VISTA, County of SAN DIEGO, State of California, .described as: SEE EXHIBIT "An MAIL TAX STATEMENTS TO: Form RW 6-1 (S) (Revised 4/96) 492DD-32019-03-03.DOC 8/5/2009 4-6 NUMBER DD 32019-03-03 EXHIBIT "A" A portion of land conveyed to the State of California May 22nd, 2003, as Document No. 2003- 0604607 and described as right of way parcel 32019-3, filed in the Office of the County Recorder of San Diego County, in the City of Chula Vista, County of San Diego, State of California, described as follows: Commencing at a 2" iron pipe with disc stamped "L.S. 5276" per Certificate of Correction recorded on October 2,2007 as Document No. 2007-0639964 for Map No. 15014, in the Office of said County Recorder, said 2" iron pipe marking the Northeasterly corner of Lot "A" of Map No. 15105, recorded September 19, 2005, in the Office of said County Recorder and bearing North 22"33'58" West 25.783 meters from a 2" iron pipe with disc stamped "L.S. 5276" per Certificate of Correction recorded June 3, 2008 as Document No. 2008-0297534 for said Map No. 15105; thence Southwesterly along the Northeasterly boundary thereof, being the beginning of a 1099.720 meter radius curve concave Southeasterly, a radial bearing to said beginning bears North 23"53'35" West, through a central angle of 00"31'16" a distance of 10.001 meters to the True Point of Beginning; thence continuing along said curve Southwesterly through a central angle of 02006'48" a distance of 40.561 meters to the beginning of a non-tangent 84.201 meter reverse curve concave Northwesterly, said beginning being marked by a lead and disc stamped "L.S. 5276" on a radial bearing of South 26027'43" East and an offset of 0.914 meters (3.00') per said Certificate of Correction for Map No. 15105; thence Southwesterly along said curve through a central angle of 08"58'29" a distance of 13.189 meters to the beginning of a tangent 1087.673 .meter radius reverse curve concave Southeasterly, said beginning being marked by a lead and disc stamped "L.S. 5276" at an offset of 0.914 meters (3.00') per said Certificate of Correction for Map No. 15105; thence Southwesterly along said curve through a central angle of 00037'27" a distance of 11.848 meters to a point being marked by a lead and disc stamped "L.S. 5276", said lead and disc bearing North 18"06'41" West at an offset of 0.914 meters (3.00') from said point per said Certificate of Correction for Map No. 15105; said point also being the beginning of a non- tangent 56.623 meter radius compound curve concave Southeasterly, a radial bearing to said beginning bears North 18"11'18" West; thence Southwesterly along said curve through a central angle of 10034'36" a distance of 10.453 meters; thence non-tangent to said curve North 28"12'18" West 4.555 meters to a lead and disc stamped "L.S. 5276" per said Certificate of Correction for Map No. 15105, being a point on the Southerly right of way line of Birch Road as dedicated per Map 14432, recorded August 30, 2002 in the Office of said County Recorder and being on a 1108.255 meter radius curve concave Southeasterly, a radial bearing to said point bears North 28021'41" West; thence Northeasterly along said curve through a central angle of 03"56'37" a distance of 76.280 meters; thence on a non-radial bearing South 24"24'51" East 8.522 meters to the True Point of Beginning. Containing 579 square meters, more or less. Subject to special assessments if any, restriCtions, reservations, and easements of record. Reserving therefrom, unto the State of California, its successors or assigns, a UTILITY EASEMENT upon, over and across the above described Parcel. There shall be no abutter's rights, including access rights, appurtenant to the above described real property in and to the adjacent State highway. Form RW 6-1 (S&T) (New 4/96) USE FOR SALES OELEGA TED TO DISTRICT 1492DD-32019-03-03.DOC 8/5/2009 6:40:00 AM 4-7 NUMBER DD 32019-03-03 Coordinates, bearings and distances, as stated hereon, are based on the California Coordinate System of 1983, HPGN Epoch 1991.35, Zone VI as shown on Record of Survey No. 15374. Multiply distances by 0.999 993 8 to obtain ground level distances. This legal description has been prepared by me or under my direction in conformance with the Land Surveyors' Act. .//:\)-L~. /',,-~- u'f" I~~s/.:..(,a\ T fD:t:~ t;;::\. ICJ'v/ ~ /A'\.-l-\ I'(~' <j,s.\ 0\ , , , l-.J \?J \ i I NO. L76~- : i ,* \ Exp.12.l." 'v J *1 ,\ 7- I / \ '. / ;' \ J'/>',-. /~~ I ',4/~---:C)~ / c-...(OFC~LI' /. ,,~_.:.:::--::: ~ ~A1' B. SCOTT EDKINS LS 7696 EXPIRATION DATE 12/31/10 ~/~/q . DATE Form RW 6-1 (S&T) (New 4/96) USE FOR SALES DELEGATED TO DISTRICT 1492DD-32019-03-03.DOC 8/5/2009 6:40:00 AM 4~8 NUMBER DD 32019-03-03 Subject to special assessments if any, restrictions, reservations, and easements of record. This conveyance is executed pursuant to the authority vested in the Director of Transportation by law and, in particular, by the Streets and Highways Code. WITNESS my hand and the seal of the Department of Transportation of the State of California, this day of 20 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION WILL KEMPTON Director of Transportation By Attorney in Fact Janet Schaffer Deputy District Director, Right of Way Division STATE OF CALIFORNIA } 55 PERSONAL ACKNOWLEDGMENT County of San Diego On this the_ day of 20 _, before me, Name, Title of Officer-E.G.. "Jane Doe, Notary Public" personally appeared Name of Signer who proved to me on the basis of satisfactory evidence to be the person(s} whose name(s} islare subscribed to the within instrument and acknowledged to me that heJshe/they executed in hisfher authorized capacity, (les), and that by hislher/their signature(s) on Ihe instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California Inal the foregoing paragraph is true and correct. WITNESS my hand and officlal seal. (Notary Public's signature in and far said County and State) {fcrnclarysll<llorslamp) THIS IS TO CERTIFY That the California Transportation Commission has authorized the Director of Transportation to execute the forgoing deed under provisions of CTC RESOLUTION #G-98-22, approved on October 27,1998, amending RESOLUTION #G-02 PERTAINING TO SALE OF EXCESS PROPERTY. Dated this day of ,20 Janet Schaffer Form RW 6-1 (S&T) (New 4196) USE FOR SALES OELEGATEO TO DISTRICT 14920D-32019-03-03.DOC 8/5/20096:40:00 AM 4-9 ~ C 11~ ~OF C 30 28 14432 '~ LOT ~ ~ ----- LOT 10 PARCEL 3 ::0 o b PCL. PM 18481 ~ VISTA ------- ,CIJ-~ EXHIBIT "A" SECT ION 3 OTAY LAKES S?-- ROAD \'\)0 S?--'?:- GO IOOR oVfi~~ I C P,;(RKWA Y '1:J.<V Co S\) ~I;>- \)G S ThiS mop has been prepared by me, or under my direction, in conformance with the Professlonol Land Surveyors' Act. Signature 13.~4 Dote <iJ~""'r ~ ~"o EA. 232302 KEY MAP STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION DISTRICT 11 DIRECTOR'S DEED MAP 0032019-03-03 RIC~:pO~OWAY Par. 52017m COUNTy r/OU1[ KP/PM SCALE SO 125 9.2/5. 7 NONE SHEET 1 Of 2 CHULA VISTA 1.829 m (5'\ ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENT. GRANTED TO THE CITY OF CHULA VISTA PER MAP NO. 1443\ \ \ 5.097 m (20" GENERAL UTILITY EASEMEN GRANTED TO THE CITY OF (HULA VISTA PER ,:::ILE NO. 2003-0574419 REC.' rAY/'6.~ MAP "-./0 151 os v" ,,""'I" .Ii f MIvt. <:fl' ~r;~_ ~/ ---------- '<::' McMJLLJN 01AY RANCH VJLLAG:::" b \ NJAP NO" J L}-<}3? \\ cp r DEDICATED FOR PUBLIC USE PER MAP 14432 LOT B LEGEND FOUND 2" IRON PIPE STAMPED "L. S. 5276" PER (ERT. OF , CORRECTION FOR \ MAP NO. 15014 ,--------------------------- ------- -----\ 14.555 i , DETAI L , , , , , I N. T. S. I R=56.523 m : t."l O. 34' 36" L"I,O.453 m : .~ ";\\ I ~"~-CS':- i ..../~f>.~ :-"';Gi"<~ , 11 -50-1 25 \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ ':l01 \\I \ 9 '~o<\' ) 9] 94 "AU LINE \ \ OF CALIFORNIA ST A TE R=t087.673 m 8,,00' 37' 27" L"11. 34B m lOT A R=84, 201 m 8.""08"58'29" L"'13. 189 m -'NON-'TANGENr--' ~'" DEPARTMENT OF TRANSPORTATION DISTRICT 1 1 E.A.232302 DIRECTOR'S DEED MAP 0032019-03-03 RIGHT GF WAY Par. 52017m MAP NO. COUNTY ROUE SO 125 9.2/5.7 j<.?IPI,l SCALE ~IONE SHEET 2 OF 2 4-11 ATTACHMENT z., STATE OF CALIFORNIA HIGHWAY USAGE STATE BUSINESS FREE GOVT CODE 6103 DEPARTMENT OF TRANSPORTATION DISTRICT 11 When recorded mail to: State of California Oepartmenfof Transportation 4050 Taylor Street M.S. 310 San Diego, CA 92110 Space above this line for Recorder's Use RJW MAP CLO 52016m APN 643-060-23 EA 232302 EASEMENT DEED District County Route Post Number 11 SO 125 7.4 RNV 34494 THE CITY OF CHULA VISTA, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF CALIFORNIA hereby GRANTS to the State of California an EASEMENT for ELECTRICAL PURPOSES upon, over and across that certain real prDperty in the CITY OF CHULA VISTA, County of SAN DIEGO, State of California, described as follows: SEE EXHIBIT "A" Form R'N 6.1 (P) (Revised 08/06 1492ED-34494.DOC1492ED-34494.DOC71612009 4-12 Number R/W 34494 EXHIBIT "A;' PARCEL 34494 ELECTRIC EASEMENT Ah easemeht for electrical purposes upon, over and across a pO'ftioh 6f Parcel 3 of Parcel Map No. 18481, in the City of Chula Vista, County of SafiOiego, State of California, recorded May 31, 2000, in the Office of the County Recorder of said County, more particularly deSCribed as follows: Commencing at the NorthwestEJrly terminus of that certaifl course in the V'(esterIY:line of parcel 0032019-03-01 granted to the City of Chula Vista in Document No. 200i>0723398, recorded November 16, 2007 in the Office of said County Recorder described as North 08018'56" West 45.88 feet (13.985 meters), said terminus also being on the Southerly right of way of Birch Street, as granted to the City of Chula Vista per Document No. 2003-0574420, recorded May 16,2003, in the Office of said County Recorder, and being on a 1107.950 meter radius curVe concave Southeasterly, a radial bearing to said point bears North 08010'17" West; thence along said Westerly line South 08018'56" East 2.792 meters to the True Point of Beginning; thence leaving said Westerly right of way No~th 81011'41" East 3.174 meters; thence South 08033'23" Eas1.3.597 meters; thence South 81014'51" West 3;189 meters to a poi[it in said'Westerly line, said point bearing North 08018'56" West 7.600 meters from the Southeasterly terrninus thereof; thence alohg said Westerly line North 08018'56" West 3.594 meters to the True Point of Beginning. Containing 11 square meters more or less. Coordinates, bearings and distances; as stated hereon, are based on the California Coordinate System of 1983,HPGN Epoch 1991.3~, Zone VI as shown on 'Record of Survey No. 15374. Multiply distances by 0.999 993 8 to obtain groufld level, distances. This legal description has been prepared by me or under my direction in conformance with the Land Surveyors' Act. /;-'C AN 0'--;':---::: /0.<,., -,---- 'U.f'~ (/~, .>C:O' 1 [02~t-~, l'vf ,-:) . 'I/A" ~,L !-S:! <Q' 'Cr p\ I~' )"" 'i NO 769 . \ \* \ EXP/.'t/;JP.-- / */ '\ S'>,'-. /~,~~ ~~ -1 ;-r'""--'"---~ cf~ / 0-.: Of' CAL":;";; ----~ - ~ ~~/C;: B, SCOTT EDKINS LS 7696 'EXPIRATION. DATE 12/31/10 1/of;/~ DATE Form RW S-1(P) (Revised'OO/OB) 1492ED-34494,DOC 7/8/2009 4-13 Number R/I'I 34494 Dated this _ day of ,20_ State of California } 55 ACKNOWLEDGMENT County of On before me, , personally (here insert name and title of the officer) .. appeared , who proved to me on the basis of satisfactory evidence to be the person(s} whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signature(s) on the instrument the person(s}, or the entity upon behalf of which the person(s} acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) THIS IS TO CERTiFY, That the State of California, acting by and through the Department of Transportation (pursuant to Government Code Section 27281), hereby accepts for public purposes the real property described in the within deed and consents to the recordation thereof. IN WITNESS WHEREOF, Ihave hereunto set my hand this day of ,20_ Director of Transportation By Attorney in Fact Form RW 6.1 (P) (Revised 08106) 1492ED-34494.DOC 7/612009 4-14 ",,, ,,,o~; ~ ;~; ~\ 1X~ ~~ \: i c' _c'" ." ly..I. I .'__''i,~ j!:~;'" . \~j I WIlLOl<;" ,U \ ..4-' -=.:l;" ( :'\-1 N " .- ~~~~~ !l~~~~ ~~~~i ~'in~ :!i~""" ~~g!~ d'o'Y'l ]35 \f3<N SiHl I:lOj 111 .;.. \'".,.i~ ,,/.; -j3!' ~:,~ __~_ '" :5" ~ ~ :' ~ ....l ~ ,--- -. .0 ;ta i i ":". f':; 9,l; ~ ..,(,.,. 9<1"'_<1 ~ W o m '" m . . ~_ 0 ~ jll~ " ~ c :l't 0" l') ~ 3 ~ ;i~; ~ : ~~li~ - ~" .. , ~, ~. gg. <;> l!I ~~ !~ ~;i~ ;;2!: li~ g e~~~ ~ . ,; ..; u. "" " . -' '-', " '" "" u. , . , "l;. '"'~ '~ .' ~i?~ ~ ~~ \~t]?ii'~ i~ D z: <( l- V) u. 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I Q , ~; i. a2: .." 205 ~ I ! p~ ,q ~: ., o A TT ACHM'ENT 3 STATE OF CALIFORNIA HIGHWAY USAGE STATE aUSINESS FREE GOVT CODE 6103 DEPARTMENT OF TRANSPORTATION DISTRICT 11 When recorded mail to: State of Cal1fornla Department of Transportation 4050 Taylor Street M.S. 310 San DIego, CA92110 Space above this line for Recorder's Use PJW MAP CLO 52028m APN595-192-13 E.A232302 DIRECTOR'S DEED (Quitclaim) District County Route Post Number 11 SD 125 12.2 DK 32045-01-01 The STATE OF CALIFORNIA, acting by and through its Director of Transportation, does hereby release and quitclaim to SOUTHBAY EXPRESSWAY, L.P., A CALIFORNIA LIMITED PARTNERSHIP, any and all abutter's rights of access, to that real property in the CITY OF CHULA VISTA, County of SAN DIEGO, State of California, described as: SEE EXHIBIT "A" MAIL TAX STATEMENTS TO: Form RW 6-1(T) (Revised 4/96) 1492DK-32045-01-01.00C 612512009 4-16 NUMBER OK 32045-01-01 EXHIBIT "A" That portion of Lot "A" of Chula Vista Tract No. 84-9, Eastlake 1 Unit 8, in the City of Chula Vista, County of San Diego, State of California, according to map thereof No. 11467, filed in the office of the County Recorder of San Diego County, February 28, 1986 adjacent to the Northwesterly right of way line of East 'H' Street described as follows: Beginning at a 2" iron pipe with disc stamped "L.S. 5669" marking the most Southerly corner of said Lot "A"; said pipe bearing South 56'49'25" East 31.102 meters from a 2" iron pipe with disc stamped "L.S, 4838" per Map No. 11403, recorded December 26, 1985 in the Office of said County Recorder; said pipe marking the Northwesterly corner of Lot "C" of said Map No.11403; thence along the Southeasterly line of said Lot "A" North 30'35'15" East 21.955 meters to the beginning of a non-tangent 654.712 meter radius curve concave Southeasterly, a radial bearing to said beginning bears North 59'25'02" West; thence Northeasterly along said curve through a central angle of 01 '56'46" a distance of 22.238 meters to the Point of Terminus. Together with any and all abutter's rights of access, in and to that portion of East "H" Street appurtenant to that portion of the Southeasterly line of said Lot "C", lying 43.203 meters Southwesterly from the Northeasterly corner of thereof, both as granted to the State of California in right of way parcel 32045-1, in Document No. 2006-0224897, recorded April 3, 2006, in the Office of said County Recorder. Subject to special assessments if any, restrictions, reservations, and easements of record. Coordinates, bearings and distances, as stated hereon, are based on the California Coordinate System of 1983, HPGN Epoch 1991.35, Zone VI as shown on Record of Survey No. 15374, Multiply distances by 1.000 0008 to obtain ground level distances. This legal description has been prepared by me or under my direction in conformance with the Land Surveyors' Act. ~;lAND~ /'v~S\C01T'fO~~-?-?I-I-;::;<"-,, \' (.2 Q:l" 4-J' 0 \ ~ "'" \*( NO, ~7 9~- )*1 \ bp.I1..'11 ,<> I I ~ \ ' ' \ 0';' h.'<- /; " 4!?-_ -~~\,:iq.."''''h ~ OF C^'-'~ ~ - B.~C: B. SCOTT EDKINS LS 7696 EXPIRATION DATE 12/31/10 ~v/"7 DATE Form RW 6-1 (S& T) (New 4/96) USE FOR SALES DELEGATED TO DISTRICT 1492DK-32045-01-01 ,doc 6/25/2009 7:14:00 ",M 4-17 NUM8E...-< OK 32045-01-01 Subject to special assessments jf any, restrictions, reser/ations, and easements of record. This conveyance is executed pursuant to the authority vested in the Director of Transportation by law and, in particular, by the Streets and Highways Code. WiTNESS my hand and lhe seai of the Department of Transportation of the Stale of California, Ihis day of 20 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION WILL KEMPTON Director of Transportation By Attorney in Fact Janet Schaffer Deputy District Director, Right of Way Division STATE OF CALIFORNIA } ss PERSONAL ACKNOWLEDGMENT County of San Diego , On this the_ day of 20 , before me, Name, Title of Officer-E.G., "Jane Doe, Notary Public" personally appeared Name of SIgner who proved to me on lile basis of satisfactory evidence to be the person(s) whose name{s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed in his/her authorized capacity, (ies), and that by his/her/their signature(s) on the instrument the person{s), or the enlity upon behaif of ",'hich the person(s} acted, executed the Instrument. I certify under PENALTY OF PERJURY under the laws of tile State of California that the foregoing paragraph is true and correct. VVITNESS my hand and official seal. (Notary Public's signature in and for said County and State) (for nolaryseal or slamp) THIS IS TO CERTIFY That the California Transportation Commission has authorized the Director of Transportation to execute the forgoing deed under provisions of CTC RESOLUTiON #G-98-22, approved on October 27,1998, amending RESOLUTION #G-02 PERTAINiNG TO SALE OF EXCESS PROPERTY. Dated this day of ,20 Janet Schaffer Form RW 6.1 (5& T) (New 4196) USE FOR SALES DELEGATED TO DISTRICT 1492DK-32045-01-01.doc 6/25/2009 7:14:00 AM 4-18 .j>. I ~ CD COUNT DK32045-01 -01 OF SAN DIEGO MIGUEL ROAD PROCTOR VALLEY ROAD EAST "HI' STREET DTAY LAKES RD -- ThIs mop has been prepared by me, or under my d 1 reet lon, I n conformance with the ProfessIonal Land Surveyors' Act. OTAY Signature 17, ~~ Dote (, h ~ /&9 ~ . E.A. 232302 EXHIBIT "A" ] KEY MAP STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION DISTRICT 1 1 EXCESS PARCEL MAP DK32045-01-01 POI. 52028m RIGHT OF WAY MAP NO. COUNTY ROUTE SD 125 PM/KP 1.6/12.2 SCALE NONE SHEET 1 qF 2 OF CHULA T ;001 7 "- "') ~ rF} G^:J "- ". "- St . /?f'f'ff. (:-~" . o <0 ")'00,") . ~_____ \: CITY MAP j j /J.OJ LOT "('1 ~ ACCESS RIGHTS "~IDK32045-01 -011 .(' 7-2 '-<IS 8. ;> t ,,<;> " If; /..j" -l'o I N C) PM o~ I bS37 ~ PARCEL 4 V I ST A EXHIBIT f~ -J j \]\j-J :7 '-"") $~.- "- 0-J FD 2" I.P. WI DISC STAMPED "L. S. 4838" PER MAP 11403 M j\ P FD 2" I. <7 SHMPED . 9SS If; P. WI DISC "L. S. 5669" LOT "A" JI811 j j /J.b7 201.108 m LT 139+12.082 "A" LINE PM Jb537 ~ I ~Vt'" E.A. 232302 STATE OF CALlFOnNIA DEPARTMENT OF TRANSPORTATION DISTRICT 1 1 EXCESS PARCEL MAP DK32045-01-01 RIG,72" O:'OWAY Po,. 520 28m COUNTY ROUTE PI.t/KP SCALE SO 125 7.6/12.2 NONE SHEET 2 OF' 2 o ~ FOR THIS AREA SEE MAP 52028m-A / ~:.~P<. :,";,~03\ C,! T/~:,~~~ ~,',.;o', :::;T, 17 ~~ f\ 1 ::1, .,I.,:.;UL A ['H""NlO'"'C>nD ," _r \ I;t- TO "'[eI"O' ~' :~'~,:~:~[;~m' . _~ ~);J;':'~'~~J9 i'.,' ~~;~~~.~ VISTA =-Ej) o o o ~ ~ ~ MJ-\P I J-4b7 o " 0_ W N ~ <= -v. '''~'~J ", o Q " < , w w " < w " < o ~ ~ " o " ..0" .. 120"' DA"N'~' (An",Nf G~,"'[D lOCI"'" <>ilL....U ~[" FIlE NO. ...00>202 "'<.' "N, OJ 1101 "flU, ~ D' p~ "~Jl OfF'RED N "H TO TIlE "" '" C~U.. ><$.. 'OR FUll..' lh."'''''u",", ......O$(S. o Q MAP 11452 '0 StAl<O'"D5TRHT Su"'H_llI.IE"' rtllR..50"" .U"'[D -~.<_L 'lI~aJ. P[~ p~ "~lJ N ~~. a<\. ,~"O , , 'll 7~7 9061 " "' 5l ~. w , (J20~21 RH. " &~~ .. ".CE,l HARTFORD ". PM Ib537 Sflfoc, !:' i " ~ <' ^ " :::::~~ ~ OESCRP1, ...,,,,.,", =-- OIS1FllCT '\ ~1C><1 DI' .., ...l:t""" ,"'So ~... .(R[ PR[P.~,O BY ".OJU;lD,..,," CO"SUe UN" UND[R CO"'R.cl ".. 0'" .,"~ COO"""Cl O~... '"~ toN' A.e,,,,, W I~, fRO" D~ upoOlO:O <01' .S P,R'OD'<"~1 "'l'~ '" '"f .DR. H".U"COWfUTEO. "UAS. 8< 'O"S,O 'Hn IHH. ~... ARI WBJICI 10 e"'~o( U '"' l\lI(. 'NO ""0:"' '"",-"-D (HECO .I1H 1"1 <OI<'"ocT"" R[C.RO'N~ 1"1 .!UU~ OF .", e".O<CH PH'O. TO .El"~. upo" 'H[ 'N'0/I~.T10~ SHO"" PHn" 2 I Ii g./ /" / / ,~ +.:'" / ,.' .,.-y .,..y / / w W " < w " . " " " " o " u E 00 N o N 00 ~ 16537 ~o~.. RH. ~ , ,01-0' 12827 / / / e, ....05. .~. '0' R"".Oon.. ~''', '0' "' <'....,0.""... A..l_0.... '.".')'" + "'--'-'--L.""....,,, . "''''.'''''' () "["",,,0'''''""'''. 'oo FllUNO ~O~""'IN'S' 'r< P"c~.~n~o':E"<H' ~::"~H~~' N.:'O~~~~'s, 1[[..... NC. 'COUN""""""""O. ~':::'~:::-'~. ::::~~ ,...., ''''' '.11'""". '__"'no,. U"-.' ...,. '''''''', ~g;~~~;rgJ.::~:~:' .".oooooan ~~.=;~- .;~::;:' _.._.......U... ......, ...''''''''.".'''...... .,'''''''''. STATE OF ell IfOR~1 ~ OEP~RIMEN r or TRANSFORT A IIO~ OI~lIl1CT 11 $ ;:';';T:,~~g~~~ _ r~~bili~~~ .._.."..._..o..~ ,"".,.... c-...... 1._ 00<."0>.."'....,. ~::';.'":~':.:-- RIGHT OF WAY MAP o !l!J!' '.E"_!50_ IJ DR ""HD' .'" U'I!~ oil'""" " 1 'A..~ 1<0, ". OIl H01IDI >c0lJ" .,. mm ."roar. c<u ,o.e [ - , .1(oRollln" DUE ._.. 1O".1IIl 111'111" I 1'Ol'.'m,,' uc".s j''''----;-, ffll o=-=To K.p.u..ns. \2.'.'2.2 PROJECT L..... 2]2]02 "~,, OO""'.O~01 TO ,,,.. nf 'm"'ou.'''~'' "00"'" "1'.0""0"" FOR THIS AREA SEE MAP 52027m ~1C;~pn:o.WIY CLO 52028m IrAOUTE '"-llHHfAPOll sA I,) 12.' 1 ,~OO 5"[H'" or lB A ITACHMENT 4- STATE OF CALIFORNIA HIGHWAY USAGE STATE BUSINESS FREE GOVT CODE 6103 DEPARTMENT OF TRANSPORTATION DISTRICT 11 When recorded mail to: State of California Department of Transportation 4050 Taylor Street M.S. 310 San Diego, CA 92110 Space above this line for Recorder's Use RiW MAP CLO 52027m APN 595.410.14 EA 232302 EASEMENT DEED District Countv Route Post Number 11 SO 125 11.9 RIW 34495 THE CITY OF CHULA VISTA, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF CALIFORNIA hereby GRANTS to the State of California an EASEMENT for ELECTRICAL PURPOSES upon, over and across that certain real property in the CITY OF CHULA VISTA, County of SAN DIEGO, State of California, described as follows: SEE EXHIBIT "AU Form RW 6-1(P} (Revised 08fOG 1492ED.34495. DOC1492ED.34495.DOC7/6/2009 4-22 Number R/W 34495 EXHIBIT "Au PARCEL 34495 ELECTRIC EASEMENT An easement for electrical purposes upon, over and across a portion of Lot "A" of Chula Vista Tract No. 89"9, Salt Creek I. Unit No.4, in the City o'fChula Vista, CoUnty of San Diego, State of California, according to Map thereof No. 1291'7:, recorded February 4, 1.992 'inthe Office of the County Recorder of said County, ,more particularly described as follows: Commencing at the Northwesterly terminus o,f that certain course, iii the Easterly lifie of right of way parcel ;320:39 granted \0 the Sti3te of California in Document No. 2003-0609736, recorded May 23, 2003 in the Office of saidCouiity Recorder described as North 29043'13" West 38.577 meters; thence along said Easterly line North 32006'28" West 14.441 meters to a point on the Southerly right of way of East "H" Street, as dedicated onMapNo, 12827, recorded'June 1811" 1991, in the Office of said County Recorder ~aid point beil:1g on a 586.437 l)leter radius curve concave Southeasterly, a radial beaiirigt() said point bears Nortli 31 023'10"West; thence Northeasterly along said Southerly right of way, being a curvethrough.a central angle of 01018'02" ..a distance of 13.313 meters to the True Point of Beginning; the!;lcecontinuing along said curve . through a central angle of 00038'49" a distance of 6.623 meters; thence leaving said Southerly right of way South 28000'37" East 1.810 meters; thence South 60029'00" West 6.623 meters; thence North 27"58'30" West 1.793 meters to the True Point of Beginning. Containiilg 12 square meters, more or less. Coordinates, bearings and distances, as stated hereon, are' based on the California Coordinate System of 1983. HPGN Epoch 1991.35, ZoneVI as shown on Record of Survey No. 15374. Multiply distances by 1.000 000 8 to obtain ground level distances. This .legal description has been prepared by me or under my direction in conformance with the Land Surveyors' Act. /',..---- ._--..... / \l LAND s.... . ({/~O\-T ~"fO~~~ /f:::iQ;)' t.\o\ (:( NO.!/?j;, 1:\ . \ Exp. U;'JI '/..1 ~~ c&)~"" -11. --.------/a~. [OF C~L\~-- ......- --~.-. B<~h B.SCOTT EKINS LS 7696 EXPIRATION DATE 12/31/10 '7/cr/?><7' . DATE For.m RW 6-1.(P)'(Reviseq,OBI06) 1492ED-3449S.DOC.. 7/B/2009.. 4-23 Number R/W 34495 Dated this _ day of ,20_ State of California } ss ACKNOWLEDGMENT County of before me, , personaliy On (here insert name and title of the officer) appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity (ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) THIS IS TO CERTIFY, That the State of California, acting by and through the Department of Transportation (pursuant to Government Code Section 27281), hereby accepts for public purposes the real property described in the within deed and consents to the recordation thereof. IN WITNESS WHEREOF, I have hereunto set my hand this day of , 20_ Director of Transportation By Attorney in Fact Form RW 6-1 (P) (Revised 08/06) 1492ED-34495.DOC 71612009 4-24 , ! i 0 . , 8 . . " " ~ '" " '" g ro '" n. "" '" ~ -- II ~"w;:.-'- 1l.711_ , ' ~"B"O'o>"~1-~ , ,\ , :F~. . o.~ ;~~~~ .' !~Ii ".~~~,/;:;; 4......... ~-~~ ('};-;-' <:+ ' .. 4~ ......, /0:'- ?:. ;' -l' ,! r3 <J: m.~'" @i ~/~ .,/ / E ~ ~ ^ <t ~ -' > :J ~ :r: ~ u ~ ~ , !~) ~ .~~- ~- ~ " '" " ~l , " ~- mnl :5 -', " 04,> ~'~ ~ ~ ,-:~ - "'~" .,. T;, '<, '"'"" " 2 LL o j \ " 1:: ~ , '. ~ \ i ~ ~""V~' - I i!5~- 0.. 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''1- :""1 ~~~~~~ ~~~~ ~'" :\\::\~~ ~","-y" ~~i~ 01:~~~ ,~;~ ~:'.:::~ -::~ ..\\ .:.", !m m!,\~"'~\~:\\" ,!., '!'i' , .~. :~~~~ ~g:;;~' '1. ~':4 .. "i ,~~ ~,'1._ I ~, ~ "~l ~ - I' ~~i~u ."'u:~ I "':. 44-UZ ':;;";; \ '\, ~~~~~ :~~~ \ . " mi, l;il \ I ::~" I ..- '" ~u:!i \...., ~ iH \ ~~; : \ t:: ~ ~ :. \ ~ ~; i \ ~ i ~ ~ ,if' ,,",f " ~I " '" n. "" '" . ~I' . ~ z ~. g ~ - , I 00' " " . '. +, <"~"o" , '.,~3' l. ,~..,- ....,.,.." ',' "'<"/ "'"'' 'OS, <"0., ", " " 3' ~ ,,~ M~ ~ I ""'~ '~ '.zo., ~; ~ ' ... .~.. ~ ~ .... ~ ' ~ ~in~ ~ ~.. ~ )- '" 'n. , DOC 5i; + ::,,;;:':;; <l.- ::- ...~.. , A '., ~'. ~ " If.WU:Ol<; 133j , 00' 6l" '25 , o , am " '. E ~ g l'i 8 i: ~ N ' If) ~ ... 0:" .....I:::': U ~- !'~:: ~.; "',. ~H~H ~~ -- ~ ''il!!~~::: :: ~!;: ll:: ~ ~ > ! , 1:; ~ ~ - ~i:~' ~. ! S<l313~ I 0' .., o \'" v:: ,c 1l(~~?jl.DEO AT '!'HI: REQUEST OF ". ,. " ,fHICAGO TITLE COMl'liNY . , SUBDIVISION DEPT. .~ " STArE OF CALIFORNIA HIGHWAY USAGE STATE BUSINESS FREE GOVT'CODE 6103 DEPARTMENT OF TRANSPORTATION DISTRICT 11 .' -J-. ATTAcHMENT 0 DOC # 2007-0723413 . .f(.... .111111111~~~II}~:>~~~::~:li~~~I~1 ~~IIIIIIIIIIII !hI I SAN ~IEGO COUNTY RECORDER'S OFFICE . '.1 GREbORY.J. SMITH. COUNTY RECORDER ^\r FEES: 0.00 . ~vPP\3105 DC NA PAGES: 3 111111111111111111111111111111111111111111111/11/11111111111111111111111III/II/I .:." , When recorded mail to: State of California , Dept. of Transportation. '. '. Artn: Office of Right of Way . .. 4050 Taylo"rStree"t, M.S. 310 San Qiego, Ca 92110 GO-:;'lJ\.{I/'Jf-SD Sp,,"- APN: 595-030-25 EA. 232302 Cm-52028m:B GRANT DEED . (MUNICIPAL CORPORATION) District County . Route Post Number 11 SO 125 . KP 12.1 .R/W 33255 . :" . . . . '. . THE CITY OF CHULA VISTA. a muni~ipal comoration oroanized and existina under and bv virtue of the laws of the State . .. . . . . . cif Caiifornia does hereby GRANT to the STATE OF CALIFORNIA all that r~al' property in the County of San Oieao, 'State arCalifornia, described as: PARCEL 33255 Parcel 5..of Parcel MapNci. 16537, in the City of Chula Vista, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, July 8, 1991. Containing 8534square metersmore or less. . . . , . . ..... ..--. ----..--... ------ - .... ~. ---- -- - ... .- . . ._n ~._____....__ ...__ ~..__ . This legal description has been prepared by meor under my direction in conformance with the Land Surveyor's Act F5. ~4' B. SCOTT DKINS LS 7696 EXPIRATION DATE 12/31/06 .g,- '3&- 6' c;. DATE FORM Ri'l 6-1 (A) (REVISED 4/36) 1492GD-33255.DOC 07/13/06 SE 4-26 " x- n ~ . {;S, .! i:.J~ , ";J. 'I 3106 . Number RJW 33255 The grantor further 'understands that the pre~ent intention of the grantee is to construct ~nd ~aintain a public highway on th~ lands hereby conveyed in fee and the grantor, for the grantor and "the grantor's successors and assigns, hereby waives any claims for any an,d all damages to, grantor's remaining property contiguous to .the", property hereby' .conveyed by r~ason of the location, construction, landscaping, or maintel)ance of said highway. . '. . '. "(As used above', the tern; "grantor" shall include the plural as well as the singular number,) , ,Dated this '(p fI-. day of 4IM~-, 20~, C~MktPL :' . I ,'<'A'tI C;.t. en;"" V \5,+0. STATE OF CALIFORNIA }SS PERSONAL ACKNOWLEDGMENT, County of On' this the _ day of .. ' , ' , , 26~. before me, . Name, Titl.~ of ,?fficer, e.g., "Jane Doe, NotarY. P~b1ic'~ 'Persona.ny <7-ppea~ed Nam~(s) of Signer(s) o personally known to me o proved to me on the .b<,l;sis of satisfactory .e~idence to be the person(s) whose name(s)_1s/are subscribed to the within instf!Jment and acknowledged tO,me that _ he/she/they executed the same i11 _ his/her/their authorized caP?city(ies), and that by" hislher/their sig.na~ure(s) on the instrument the person(s), or the entity upon beha:f of,which the person(s) acted, executed this i!1strument." - WITNESS my hand and official seal. . ,. -. '.____"___'_____ _~__ ____m__ " ' .-.._-- '--'-----'.- " , .-. ..------ -.------. , ' _'u_ _ ._ _ .~.__ (Notary Public's Signature in and for said CountY a~d State) (fc:r notary sea! or stamp) THIS IS 'TO CERTIFY, That'the'State of.'California, acting by"and'through the Department of Transportation (pursuant 'to Government Code Section 27281), hereby apcepts for public purposes the real_property described in the within deed and consents to the recordation thereof. . .' IN WITNESS WHEREOF, I have hereunto set my himd ,this 1':l , day of NnirAmnr;l"r ,20.J21... WILL KEMPTON Director of Transportation, B JANET SCHAFFER DEPUTY DISTRICT DIRECTOR FORM RW 6-1 (A) {REVISED 4/96} 1492GD-33255_DOC 07/13/96 SE 4-27 , . ~,'" .; 'l~ \' ~ ", }; , , , , 3107 STATE OF CALIFORNIA ) ) S.S. COUNTY OF SAN DIEGO ) . On the 1..9~ day of jJffifp)'Y\ber, 2007, before me, Lori tw,1le. Petlple8, Senior Deputy City Clerk, personally appeared c.,'r,~ \ c.o)( ,personally known to me to be the person($!) whose name(5I') is/-are. subscribed to the within instrument and acknowledged to me that he/she/they executed the same in.ffislher/1hcir authorized capacityEies), and that by ffi5ther/fucir signature(.8J on the instrument, the person(gj, or the entity upon behalf of which the person($) acted, executed the instrument. WITh'ESS my hand and official seal. ~1~ O~J~~fJO/ Lori Anne Peoples, MMC Senior Deputy City Clerk of the City of Chula Vista 4-28 STATE OF CALIFORNIA HIGHWAY USAGE STATE BUSINESS FREE GOVT CODE 6103 DEPARTMENT OF TRANSPORTATION DISTRICT 11 When recorded mail to: State of California Dept. of Transportatlon Artn: OHlce of Right of Way 4050 Taylor Street, M.S, 310 San Dlega, Ca 92110 S~ace above this line for Recorder's Use APN: 595-030-25 E.A. 232302 CLO 52028m-8 GRANT DEED CORRECTORY DEED (MUNICIPAL CORPORATION) I Dlstrlct Countv Route Post Number i 11 SO 125 KP 12.1 RIW 33255 , I I THE CITY OF CHULA VISTA. a municipal corporation orqanlzed and existina under and bv virtue of the laws of the State of California does hereby GRANT to the STATE OF CALIFORNIA all that real property in the Csunty of San Dieqo, State of California, described as: PARCEL 33255 Parcel 5, of Parcel Map No. 16537, in the City of Chula Vista, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, July 8, 1991. Excepting therefrom that portion described as follows: Beginning at a 2" iron pipe with disc stamped "L.S. 5669" marking the most Westerly corner of said Parcel 5; said pipe bearing South 56'49'25" East 31.102 meters from a 2" iron pipe with disc stamped "L.S. 4838" per Map No. 11403, recorded December 26, 1985 in the Office of said County Recorder; said pipe marking the Northwesterly corner of Lot "C" of said Map No.11403; thence along the Westerly line of said Parcel 5 North 30035'15" East 21.955 meters to the beginning of a non- . tangent 654.712 meter radius curve concave Southeasterly, a radial bearing to said beginning bears North 59'25'02" West; thence Northeasterly along said curve through a central angle of 01 '56'46" a distance of 22.238 meters; thence leaving said Westerly line South 54'30'39" East 17.420 meters to a point on a 609.601 meter radius curve concave Southeasterly, a radial bearing to said point bears North 56'30'25" West; thence Southwesterly along said curve through a central angle of 02'24'46" a distance of 25.671 meters; thence South 31'04'49" West 20.271 meters to a point on the Southerly line of said Parcel 5; thence along said Southerly line North 48032'15" West 17.103 meters to the Point of Beginning. Containing 7,765.square meters more or less. FORM RW 6-1(A)(REVISED 4/96) 1492GD-33255(revised).DCC 06/08/09 SE 4-29 Number R!W 33255 This deed is prepared to correct the legal description in Document No. 2007-0723413, recorded November 16, 2007 in the Office of the County Recorder of San Diego Cdunty. Coordinates, bearings and distances, as stated hereon, are based on the California Coordinate System of 1983, HPGN Epoch 1991.35, Zone VI as shown on Record of Survey No. 15374. Multiply distances by 1.000 000 8 to obtain ground level distances. This legal description has been prepared by me or under my direction in conformance with the land Surveyor's Act. ~LAND-':", <:;"'" _____- _-.. .Ju-?.." /~/:-c..a\T [D';;:-.;:/---;......" /c.;~'s 0-~\.L\ /::; Q;J Jl \ ~\ . , , ~,G 176::':::. i ! * E,pl!fipp !*) ; , , . ,5',;", '/-:i:'''\/ '-.4;-;:---'--'-;09;: ./ ',<.. OF'"CA\.-'''':''--:: ~._------- B_~~ S. SCOTT EDKINS lS 7696 EXPIRATION DATE 12/31/10 c,/It/ ~ I DATE Form RW 6-1 (C) (Revised 08106) 1492GD-33255(revised).DOC 6/11/2009 4-30 Number RiW 33255 The grantor further understands that the present intention of the grantee is to construct and maintain a public highway on the lends heraby conveyed in fee and the grantor, for itself! its successors and assigns, hereby waives any claims for any and all damages to grantor's remaining property contiguous to the property hereby conveyed by reason of U-,e location, construction, landscaping or maintenance of said highway. IN WITNESS WHEREOF, said corporation has caused its corporate name to be hereunto subscribed and its corporate seal to be affixed hereto, this day of , 20_ . By President By Secretarj [CORPORATE SEAL] State of California } 55 ACKNOWl.EDGMENT County of On before me, ~l,Ni' i,,~i'" n:1mp nnr11itlp. nrthp. nffir'i't) personaIly appeared , who proved to me on the basis of satisfactory evidence to be the person(s} whose name(s) isfare subscribed to the wllhin instrument and acknowledged to me that he/she/they executed the same in his/ner/their authorizec C3pacity (ies), and that by his/her/their signalure(s) on the instrument the person(s), or the entity upon behalf of which lne person(s) acted, executed the inslrument. I certify under PENALTY OF PERJURY under the laws of the State of Caliiornia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) THIS IS TO CERTIFY, That the State of California, acting by and through the Department of Transportation (pursuant to Government Code Section 27281), hereby accepts for public purposes the real property described in the within deed and consents to the recordation thereof. IN WITNESS WHEREOF, I have hereunto set my hand this day of , 20_ Director of Transportation 8y Attorney in Fact Form RW 6-1(C) (Revised 08/06) 1492GO-33255(revised).00C 6/11/2009 4-31 I ATTACHMENT ip STATE OF CALIFORNIA HIGHWAY USAGE STATE 8USINESS FREE GOVT CODE 6103 DEPARTMENT OF TRANS?ORTATION DISTRICT 11 When recorded man to: State of California Department of Transportation 4050 Taylor Street M,S. 310 San Diego, CA 92110 Space above this line for Recorder's Use RJW MAP CLO 52021 m-A E.A.232302 DIRECTOR'S DEED District County Route Post Number 11 SD 125 K.P, 9.0 DD 32113-1 The STATE OF CALIFORNIA, acting by and through its Director of Transportation, does hereby grant to SOUTHBAY , EXPRESSWAY, L.P., A CALIFORNIA LIMITED PARTNERSHIP all that real property in the CITY OF CHULA VISTA, County of SAN DIEGO, State of California, described as: SEE EXHIBIT "A" MAIL TAX STATEMENTS TO: Form RW 6-1(5) (Revised 4/96) iAO'J_nn'<'J11':l._1 nnr F;J1hl?nnQ 4-32 NUMBER 0032113-1 EXHIBIT "A" A portion of that land conveyed to the State of California per Document No. 2006-0380362, recorded on May 30, 2006, in the Office of the County Recorder of San Diego County, and located in Parcel 13 of Parcel Map No. 19244, in the City of Chula Vista, County of San Diego, State of California, filed in the Office of the County Recorder of said County on May 29, 2003 as File No. 2003-0628327 of Official Records more particularly described as follows: Beginning at a 1" iron pipe with disc stamped "L.S. 7696", said pipe marking the most Southeasterly corner of said land conveyed to the State of California; thence along the Northeasterly line thereof North 11002'33" West 30.631 meters to a 1" iron pipe with disc stamped "L.S. 7696"; thence South 78057'27" West 7.603 meters to a 1" iron pipe with disc stamped "L.S. 7696"; thence North 23042'20" West 9.824 meters; thence leaving said Northeasterly line South 54042'32" West 9.567 meters to a point on the Northeasterly right of way of Olympic Parkway as granted to the City of Chula Vista per Document No. 2002-115503, recorded December 17, 2002 in the Office of said County Recorder; thence along said right of way South 37"15'52" East 0.305 meters to the beginning of a non-tangent 463.297 meter radius curve concave Northeasterly, a radial line to said beginning bears South 54027'47" West; thence Southeasterly along said curve through a central angle of 5000'00" a distance of 40.429 meters to the Point of Beginning. .Containing 320 square meters more or less. Together with any and all abutter's rights of access, appurtenant to Olympic Parkway, more particularly described as follows: Beginning at the Point of beginning described above; thence continuing along the Northeasterly right of way of said Olympic Parkway and along said 463.297 meter radius curve through a central angle of 01020'00" a distance of 1 0.781 meters to the Point of Terminus. Reserving therefrom to the State of California, and easement for drainage and general utilities over the above described property. Subject to special assessments if any, restrictions, reservations, and easements of record. Coordinates, bearings and distances, as stated hereon, are based on the California Coordinate System of 1983, HPGN Epoch 1991.35, Zone VI as shown on Record of Survey No. 15374. Multiply distances by 0.999 993 8 to obtain ground level distances. This legal description has been prepared by me or under my direction in conformance with the Land Surveyors' Act. .~<J)-~A ~?~-'~;;" ,/~S/~O'iT ci/,-f't--), /l.v//s "/A'~,~'~L\' f5:!/''O. ~....\ 0\ ,-..1 \::0\ \I! NO.~7 96 \ \ *\ ,:<p I _~.!ltp J *1 '- \ T I ,. , , . / \ " ,: I , J',," ' ~~ I , ./ " /~' , --"'- -11'['-------.-/ a<\.... / ",- Of' CI,U,;? -. - &.~ B. SCOTT DKINS LS 7696 EXPIRATION DATE 12/31/10 ~(,ft1 DATE Form RW 6-1 (S&T) (New 4/96) USE FOR SALES DELEGATED TO DISTRICT . ."" """",,)"'~-1'1 1 nrlf"' ~11.c:;l?n/10 1-1'<:;'(1/1 PM 4-33 NUMBER DO 32113-1 J Subject to special assessments if any, restrictions, reservations, and easements of record. This conveyance is executed pursuant to the authority vested in the Director of Transportation by law and, in particular, by the Streets and Highways Code. WITNESS my hand and the s8al of the Department of Transportation of the State of California, this day of 20 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION WILL KEMPTON Director of Transportation By Attorney in Fact Janet Schaffer Deputy District Director, Right of Way Division STATE OF CALIFORNIA } ss PERSONAL ACKNOWLEDGMENT County of San Diego On this the~ day of 20 _, beiore me, Name, Tille of Officer-E.G., "Jane Doe, Notary Public" personally appeared Name of Signer who proved to me on the basis of satiSfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed In his/her authorized capacity, (ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Notary Public's signature in and for said County and State) (fornotai)'seaIOrslGmp) THIS IS TO CERTIFY That the California Transportation Commission has authorized the Director of Transportation to execute the forgoing deed under provisions of CTC RESOLUTION #G-98-22, approved on October 27, 1998, amending RESOLUTION #G-02 PERTAINING TO SALE OF EXCESS PROPERTY. Dated this day of ,20 Janet Schaffer Form RW 6-1 (S&T) (New 4/96) USE FOR SALES DELEGATED TO DISTRICT 1492-DD32113-1.DOC 6/16/2009 1:35:00 PM 4-34 OF SAN DIEGO BIRCH ROAD' ThIs map has been prepared by me, or under my direction, In conformance wIth the Professional Land Surveyors' Act DlAY 8~~A , . Or, Iff, I c%J ~ , Signature Date MIGUEL ROAD PROCTOR VALLEY ROAD II STREET EASTLAKE PARKWAY DTAY LAKES ROAD l -t , " MESA ROAD ~ l DD32113-1 E.A. 232302 IEXHIBIT "AI KEY MAP STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION DISTRICT 1 1 EXCESS PARCEL MAP DD.3211.3 -1 RIGHT OF WAY P 52021 m MAP NO. 0, . COUNTY ROUTE PM/KP SCALE SD 125 5.6/9.D NONE SHEET I OF 2 / / '-/ / /<x: / / R=463. 297 m / / ~/ :=01020' 00" / / / L=10.781 m /' ....j / /\ // // @ T. C. E AGREEMENT BETWEEN EASTLAKE / / DEVELOPMENT & SAN DIEGO EXPRESSWAY. // // PER DOe. 2003-0604618 / / REC. , MAY 22, 2003 / / CITY -r J J 8 \ \ \ \,,- OJ ) ) co J: ;/ "G '" ;f?- a'v -l>o I w m @ DENOTES FOUND / 1" IRON PIPE , W\DISC STAMPED /\ "L S 7696" ,/ ) ,/ -\ / ,<:-",~\'-"" :'J <V"" <( "" ,$/ 00 '<:- " c, c,'<' "V) ",,'<- Q" ~ " ",-<- -\~ 0 0'1.- 'I.- <:) 0'" ",-\ '1,.0 00 ~" ~ c," 't: C) 0 OV,\, ~ '" <:) , ",,,0 <v<:) <v'<:- V C)'<:- ~ <( <:)<0 <( c,0-"" 0^'- "" B ",," V ,<:-<0 , / CHULA/'/V I ST AIEXHIBI~/"~ / / J \JIV S J 8 J lVJ J ~ ,//;,// / '\ / / / 0"0 (;' /~/~,>-/' '/)<0' / / / / /' /' /' ~ -f.~1: // // /'/'/' ~\ '~\ // /;:0-(:32113) \ /1<\.. / /' /'/ ~\ v:: //' / ~;" / ~ / F.... I/' __/ '. -- /' /' / 9.567 m (;' / ,(Jr:)' (;' :P~ / o 00 no,1 (;' 0' / '0 "0) / / (\\ , <0') 1\'1.: /~ (;' /,:; 1 ,'00 / / /~<c;'J,/' ~S7 603 m / / 0 / / / / / //30.6:)\ m z... / / / RJ ",' ~"r '<--+: <("r / / / / @ I DD32113-1l AREA= 320 m2 PARCEL 11 E.A 232302 PARCEL 13 ~~. / P JV0'92~} /} EASEMENT GRANTED TO S. D. G. 8< E. PER DOC. 2002-092181 REC. , OCT 22, 2002 GENERAL UTILITY AND ACCES EASEMENT GRANTED TO CITY OF CHULA VISTA PER DOC. 2002-1153505 REC. ' DEe. 17, 2002 ST A TE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION DISTRICT 1 1 EXCESS PARCEL MAP DD32113-1 RtG':;:pO~OWAY POI. 52021 m. COUNTY ROUTE KILOMETER POSl SO 125 5.6/9,0 SCALE NON I SHt::ET 2 ( ATTACHMENT 1 STATE OF CALIFORNIA HIGKWAY USAGE STATE BUSINESS FREE GOVT CODE 6103 DEPARTMENT OF TRANSPORTATION DISTRICT 11 When recorded mail to: State of California Department of Transportation 4050 Taylor Street M.S. 310 San 01ego, CA 92110 Space above this line for Recorder's Use RiyV N1AP CLO 52025m EA232302 DIRECTOR'S DEED District County Route Post Number 11 SO 125 10.3 DO 32034-01-02 I 133171-01-01) The STATE OF CALIFORNIA, acting by and through its Director of Transportation, does hereby grant to THE CITY OF CHULA VISTA all that real property in the CITY OF CHULA VISTA, County of SAN DIEGO, State of California, described as: SEE EXHIBIT "An MAIL TAX STATEMENTS TO: Form RW 6-1 (S) (Revised 4/96) 49200-32034-01-02.0003/19/2009 4-37 NUMBER DO 32034-01-02 (33171-01-01) EXHIBIT "A" A portion of land conveyed to the State of California May 22od, 2003, as Document No. 2003- 0604634, filed in the Office of the County Recorder of San Diego County, and located within Section 34, Township 17 South, Range 1 West, San Bernardino Meridian, in the City of Chula Vista, County of San Diego, State of California, described as follows: Beginning at a point in said land granted to the State of California; said point being the Westerly terminus of that certain course bearing North 59028'07" East 57.869 meters and being marked by a 1" iron pipe with disc stamped "L.S. 7696"; thence (1) along said Slate land North 59028'07" East 57.869 meters to a 1" iron pipe with disc stamped "L.S. 7696"; thence (2) leaving said State land South 28037'13" East 8.017 meters to the Northwesterly right of way of Otay lakes Road as said road Is shown on Map 13069, recorded November 22, 1993 in the Office of said County Recorder; thence (3) along said right of way South 60048'01" West 58.114 meters to a point In said State land herein referred to as Point "A", said point being marked by a 1" iron pipe with disc stamped "L.S. 7696"; thence (4) along said State land North 26016'10" West 6.681 meters to the Point of Beginning. Containing 426 square meters, more or less. Together with any and all abutter's rights of access, along courses (1) and (4) described above, together with any and all abutter's rights of access appurtenant to Otay lakes Road, more particularly described as follows: Beginning at the above-mentioned Point "A"; thence along the Northwesterly line of said Otay lakes Road South 60048'01" West 40.376 meters to the Point of Terminus. Subject to special assessments If any, restrictions, reservations, and easements of record. There shall be no abutter's rights, including access rights, appurtenant to the above described real property in and to the adjacent State highway. Coordinates, bearings and distances, as stated hereon, are based on the California Coordinate System of 1983, HPGN Epoch 1991.35, Zone VI as shown on Record of Survey No. 15374. Multiply distances by 0.999 999 to obtain ground level distances. Form RW 6-1 (S&T) (New 4/96) USE FOR SALES DELEGATEO TO DISTRICT 149200-32034-01-02.0003119/20093:11:00 PM 4-38 NUMBER DO 32034-01-02 (33171-01-01) This legal description has been prepared by me or under my direciion in conformance wiih the Land Sur/eyors' Act. ,/;-\~ A M o-s~"., /sS. _~__U?'" /':'~ /e,CI' fo -;'t.-\.\ , I..v / 4:l ..r-/. '~<'..J-'. ~/{Q /\0\ 0\ -.1/ \,0\ ~IO. L7i59" : *':, E"P.IZf'1-fll-o j*i . \ / / \ n', / '" I \"U/ ", _// .;:,;;"/, '. 4 il:.>~---- f": or,:..:.. / '--,~_o~ C~~~// Form RW 6-1 (S&T) (New 4/96) USE FOR SALES DELEGATED TO DISTRICT 1492DD-32034-01-02.DOC 3/19/2009 3:11 :00 PM 4-39 -g,'~4 B. SCOTT EDKINS LS 7696 EXPIRATION DATE 12/31/10 ~/?/09 . DATE NUMBER DD 32034-01-02 (33171-01-01) Subject to special assessments if any, restrictions, reservations, and easements of record. This conveyance is executed pursuant to the authority vested in the Director of Transportation by law and, in particular, by the Streets and Highways Code. WITNESS my hand and the saal of the Department of Transportation of the State of Caiifornia, Ihis day of 20 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION WtLL KEMPTON Director of Transportation By Attorney in Fact Janet Schaffer Deputy District Director, Right of Way Division STATE OF CALIFORNIA } ss PERSONAL ACKNOWLEDGMENT County of San Diego On this the_ day of 20 _, before me, Name, Title of Officer-E.G., "Jane Doe, Notary Public" personally appeared Name of Signer who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me thaI he/she/they executed in his/her authorized capacity, (ie5), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the per.son(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the Stale or California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (forl1:Olary~eaIOfstamp) (Notarj Public's signature in and for said County and Stale) THIS IS TO CERTIFY That the California Transportation Commission has authorized the Director of Transportation to execute the forgoing deed under provisions of CTC RESOLUTION #G-98-22, approved on October 27,1998, amending RESOLUTION #G-02 PERTAINING TO SALE OF EXCESS PROPERTY. Dated this day of ,20 Janet Schaffer Form RW 6-1 (S&T) (New 4196) USE FOR SALES DELEGATED TO DISTRICT 1492DD-32034-01-02.o0C 3/1912009 3:11:00 PM 4-40 OF DD3?034-01-0? SAN DIEGO MicuEL ROAD ROAD PARKWAY OLYMPIC PARKWAY ~ ~ HII s mop has been prepored by me, ~\ or under my d I ,ect lon, I n conformance .. ~, with tile Professional Land Surveyors' Act. OTAYMESAROA~~ Signof'ure 17-~A2 ~tL~ Dote ~ ~ E,A, 2.52307 EXHIBIT rIA II ] KEY MAP STATE OF CALIFORNIA DEPARTMENT OF TRANSPORT A nON DIS TRICT 1 1 EXCESS PARCEL MAP 0032034 -01-02 Par, 52025m RIGHI OF WAY MAP NO. COUNTY ROUlE SO 125 PM/KP 6.4/10.3 SCALE NONE SHEET 1 OF 2 IiB" OF CHULA VISTA CITY / MAP 3J23 22 / /21 \ \ \ ~@@~~\ \ ACCESS RIGHTS 33171-01 01 \ FOUND 1" I RON PIPE W\DISC '~TA,I;\PED "L.S.7696" POINT "A" \ \ \ FOUND 1" I RON ,0 I PE \ W\DISC STAMPED \ "L.S 7696" \ LOT "A" ,0.0.8 MAP J30b9 AREA.=426 m2 0032034-01 -02 \ ~ h ~ '0> \~ ~'0 1'/ ' 1l ~ 0 ) ~ '~\'S ?'", 0- 0' \~ ~ \ \ \ 110' I GEI~ERAL EASEMENT \ NO. 13069 \ \ FOUND 1" IRON PIPB W\DISC STAMPED \ "L. S. 7696" \ \ 3.048 m UTILITY PER MAP .- ~ ~ '" " \, \ \ \ \ \ \ "A" LINE \ LT \ \ (320.34) \ \ \ "- " " " " PORTION OF OTAY LAKES ROAD IN FEE TO THE CITY OF CHULA VISTA PER DOC. NO. 90-065424, REC, ,02/05/1990 /\ \ \ \ J \ \ CALIFORNIA STATE OF DRAINAGE EASEMENT GRANTED TO THE CITY OF CHULA VISTA PER FILE NO. 90-D64524 REC., FEB. 5, 1990 @) DEPARTMENT OF TRANSPORTATION D1STRICT 1 I ~"" EXCESS PARCEL MAP 0032034-01-02 RIG~:"C:OYIAY POI. 52025m COUNTY ROUTE ~ILCME1ER POST SCALE SO 125 ti. ./10.3 NONE SHEET 2 OF' 2 SLOPE EASEMENT GRANTED TO THE CITY OF CHULA VISTA PER FILE NO. 90-064524 REC.' FEB. 5, 1990 @ t.A. 232302 4-42 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A GRAL'IT DEED CORRECTORY DEED FOR EXCESS RIGHT-Of-WAY ADJOINING STATE ROUTE 125 DESIGNATED AS SAN DIEGO COUNTY ASSESSOR'S PARCEL NUMBER 595-030-25 At'ID CALTRANS RJW 33255 FROM THE CALIFORNIA DEPARTMENT OF TRAL'ISPORTATION (CALTRANS) WHEREAS, in 2002, the City of Chula Vista (City) entered into the City of Chula Vista Toll Road Agreement with San Diego Expressway Limited Partnership and Agreement Affecting Real Property to facilitate development of the SR 125 toll road through the City; and WHEREAS, construction of the SR 125 has been completed and the right-of-way must be finalized; and WHEREAS, this parcel is also identified by Caltrans as II-SD-125-KP 12.1 - RJW 33255; and WHEREAS, this Correctory Deed is necessary to revise the right-of-way on East H Street in the vicinity of the southbound off-ramp from 8,534 square meters to a revised area of 7,765 square meters in order to retain existing mature trees along the north side of the roadway; and WHEREAS, this Grant Deed was originally recorded on November 16, 2007 per Document 2007-0723413. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept a Grant Deed Correctory Deed for excess right-of-way adjoining State Route 125 designated as San Diego County Assessor's Parcel Number 595-030-25 and ffltrans RJW 33255 from the California Department of Transportation (CALTRANS). / . / I . i Presented by by i Richard A. Hopkins Director of Public Works Attachments: Exhibits I (RlW 33255) 4-43 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL Of THE CITY Of CHULA VISTA ACCEPTING DIRECTOR'S DEEDS FOR EXCESS RIGHT-Of-WAY ADJOINING STATE ROUTE 125 PARCELS DESIGNATED AS CALTRANS PARCEL NuMBERS DK-32045-01-01, DD-32034-01-02, DD-32113-1 A1"fD DD-32019- 03-03 WHEREAS, in 2002, the City of Chula Vista (City) entered into the City of Chula Vista Toll Road Agreement with San Diego Expressway Limited Partnership and Agreement Affecting Real Property to facilitate development of the SR 125 toll road through the City; and WHEREAS, construction of the SR 125 has been completed and the right-of-way must be finalized; and WHEREAS, it is necessary for the City to accept from the California Department of Transportation (CALTRANS) Director's Deeds for excess right-of-way adjoining State Route 125; and WHEREAS, Director's Deed (Quitclaim) for Assessor's parcel Number 595-030-25 is also designated as 11-SD-125-12.2 DK 32045-01-01; and WHEREAS, Director's Deed for Assessor's Parcel Number 595-070-38 IS also designated as I1-SD-125-10.3 DD 32034-01-02 (33171-01-01); and WHEREAS, Director's Deed for Assessor's Parcel Number 643-020-82 IS also designated as II-SD-125-K.P. 9.0 DD 32113-1; and WHEREAS, Director's Deed for a portion of Birch Road is also designated as 11-SD- 125-K.P. 9.2 DD 32019-03-03. NOW THEREfORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept the transfer to the City of Chula Vista all that real property in the City of Chula Vista, County of San Diego, State of California which are attached to this Resolution Exhibits 1,2,3 and 4. Richard A. Hopkins Director of Public Works Presented by Attachments: Exhibits 1-4 (DK-32045-01-01, DD-32034-01-02, DD-32113-I, DD-32019-03-03) 4-44 RESOLUTION NO. 2009- - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRfu'l'TING EASEMENTS FOR ELECTRICAL PURPOSES UPON AND ACROSS PORTIONS OF CITY OWNED PROPERTY DESIGNATED AS SAN DIEGO COUNTY ASSESSOR'S PARCEL NUMBERS 595-410-14 (R/W 34495) AND 643-060-23 (R/W 34494) AS PART OF THE STATE ROUTE 125 PROJECT AND AUTHORIZING THE MAYOR A.l\'D CITY CLERK. TO EXECUTE ALL DOCUMENTS NECESSARY TO RECORD THE EASEMENT WHEREAS, in 2002, the City of Chula Vista (City) entered into the City of Chula Vista Toll Road Agreement with San Diego Expressway Lirnited Partnership and Agreement Affecting Real Property to facilitate development of the SR 125 toll road through the City; and WHEREAS, construction of the SR 125 has been completed and the right-of-way must be finalized; and WHEREAS, it is necessary for the City to grant easements to California Department of Transportation (CAL TRANS) for electrical purposes related to the back up power generator appurtenances adjoining State Route 125; and WHEREAS, Easement Deed R/W 34495 located at Assessor's Parcel Number 595-410- 14 for the East H Street generator pad is also designated as (11-SD-125-11.9); and WHEREAS, Easement Deed R/W 34494 located at Assessor's Parcel Number 643-060- 23 for the Birch Road generator pad is also designated as (11-SD-125- 7.4). NOW THEREFORE, BE IT RESOLVED that the City Council of the City ofChula Vista does hereby grant easements to California Department of Transportation (CAL TRANS) for electrical purposes upon and across portions of city owned property, in the County of San Diego, State of California which are attached to this Resolution as Exhibits I and 2. BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby authorize the Mayor and City Clerk to execute these easements and all other doc. ments necessary to complete these transfers. Presented by Richard A. Hopkins Director of Public Works Attachments: Exhibits I & 2: (R/W 34495 - Assessor's Parcel Number 595-410-14) (R/W 34494 - Assessor's Parcel Number 643-060-23) 4-45 CITY COUNCIL AGENDA STATEMENT ~(~ C1TYOF ~CHULA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: 9/1/09, Item 5" RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVL"lG ~1\) AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND OTAY WATER DISTRICT FOR JOL"lT PARTICIPATION TO PREPARE A WASTEWATER RECLAMATION;jA t.ITY FEASIBILITY STUDY \ ,~ DIRECTOR OF PUBLIC WORKS CITY MANAGER rf.- S r ASSIST ANT CITY MANAGER 'S ') 4/5THS VOTE: YES 0 NO [g) SUMMARY City staff has been researching vanous options available to meet the City of Chula Vista's long-term sewer treatment capacity needs. Constructmg a sewer treatment facility in Chula Vista able to treat sewage to current recycled water standards is one option being explored. As a result, the City of Chula Vista and Otay Water DIstrict would like to partner in the preparation of a feasibility study analyzing the costs associated with constructing such a plant. The proposed agreement being considered by Council describes the terms under which such a feasibility study would be completed. 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 6 categorical exemption pursuant to Section 15306 (Information Collection) of the State CEQA Guidelines because the proposal seeks to obtain information as part of a study leading to an action which the City of Chula Vista has not yet approved, adopted or funded. Thus, no further environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. 5-1 9/1/09, Item2- Page 2 of 5 DISCUSSION Background The City of Chula Vista does not own or operate its own wastewater treatment plant. Instead, the City, along with fourteen (14) other participating agencies, sends its wastewater to the system managed by the Metropolitan Wastewater Department (Metro) of the City of San Diego. Based on the City's agreement with Metro, the City currently has 19.843 million gallons per day (mgd) of treatment capacity rights in the Metro system. The City has also been allocated an additional 1.02lmgd as its proportionate share of the capacity resulting from the completion of the l5mgd Southbay Water Reclamation Plant. Therefore, the City has a total allocated capacity of20.864mgd. The formal ratification of this additional capacity is expected to occur this year. In 2005, the City completed the Wastewater Master Plan (WWi'vlP) update concurrent with the General Plan update. As part of that effort, the City analyzed the impacts of various land use alternatives at buildout. It was determined that under the "preferred" land use alternative, which was ultimately adopted, the City would be generating approximately 26.2mgd at buildout, meaning the City needs to increase its treatment capacity by approxiinately 5.34mgd. Recent sewer flow data verified by staff in December 2008 indicates flows have decreased approximately 1.4% over the past year (most likely due to increased water conservation efforts, foreclosures, and building vacancies). This decline in sewage volume has continued into 2009 with the City of Chula Vista currently generating approximately 16.5 mgd. While staff continues to monitor the overall flow volume generated within the City, the most recent development projections (last updated in December, 2008) predict that the City would require additional treatment capacity as early as 2018. Wastewater Capacitv Options The City can increase its treatment capacity through one of two options: I) Purchase additional treatment capacity rights in the Metro System from another Metro Agency or 2) Construct an independent wastewater treatment plant in Chula Vista. Since the identification of the treatment capacity constraint, the City has engaged in a variety of activities (studies and discussions) both independently, and with other agencies, exploring these options. For example, the Metro Joint Powers Authority (of which Chula Vista is a member) retained an independent consultant in 2007 to conduct a Capacity Valuation Study to determine recommended pricing parameters that could be used by participating agencies in the purchasing of treatment capacity in the system. The results of this study suggested a recommended price for capacity in the Metro system of approximately $15 per gallon per day. In addition, during preliminary discussions that took place in 2007 between Chula Vista and San Diego City officials, the City of San Diego was willing to sell treatment capacity. The price for additional capacity of San Diego may be as high as $22 per gallon per day. 5-2 .- 9/1/09, Item~ Page 3 of 5 Membrane Bioreactor (MER) Although a significant amount of information regarding the cost of constmcting an independent wastewater treatment plant has been accumulated through several studies completed over the past several years, there are still questions that need to be answered before the City can make a.decision on the best course of action to take. The City is primarily focused on Membrane Bioreactor (MBR) treatment plants. Conventional treatment plants typically involve three stages in the treatment process. In general, these stages begin with the separation of solid materials such as rocks, gravel, and rags, from the raw wastewater. Oncc separated, the wastewater enters large sedimentation tanks or clarifiers where organic material within the wastewater is allowed to settle, and oils and other similar liquids float to the surface and can be removed. The sewage is then treated by micro-organisms that remove additional organic compounds from the water. Finally, the wastewater is disinfected before bemg discharged from the plant. Membrane Bioreactors combine and/or eltminate several of the steps involved in the conventional process by filtering the wastewater through "membranes" made of hollow plastic or ceramic fibers. The pores in each membrane that filter the wastewater are so small that bacteria, organisms, and most other particles, can not pass through. The advantages of the MBR treatment plant can physically be seen in a significantly reduced plant size, as settling and treatment tanks are combined into one, much smaller tank. The entire treatment process is so compact, it is often housed entirely within a building. In addition, the water quality of the outgoing ("effluent") water is equal to or better than conventional treatment processes and is ideal for reuse in recycled water systems. The process itself is simpler than conventional systems, and the plant becomes easier to operate and maintain. Lastly, MER plants are easily expandable by adding additional membranes. An MER plant, if constmcted within the City of Chula Vista, would reduce the volume of sewage the City would need to send to Point Lorna for treatment, and could treat the sewage to levels that meet or exceed current recycled water standards. Utilizing this technology, the City could coordinate with local water agencies and recycled water users to expand the region's recycled water supply. Bascd on previous studies and discussions with local water agencies, the City has identified the Otay Water District (Otay) as the primary user for any recycled water generated by a treatment facility within Chula Vista. The Sweetwater Authority was considered a potential customer, but previous studies have shown that, without a recycled water infrastmcture system already in place, it is not economically feasible for the Sweetwater Authority to participate in the research and development of a reclamation plant in Chula Vista at this time. Consultant Scope of Work City staff, in coordination with staff from Otay, is preparing to advertise a "Request For Proposals" as a preliminary step towards hiring a consultant to prepare a feasibility study. 5-3 9/1/09, Item~ Page 4 of 5 Since the Chula Vista treatment plant may generate recycled water, Otay would like to partner with the City for this study, and has already allocated funding that could be used in this effort. The scope of work for the study (see attached for entire draft scope of work) seeks to address issues including, but not limited to, the following: Costs associated with the construction of a plant able to treat up to 6mgd (previous studies only contemplated plant sizes able to treat up to 4mgd) Costs associated with various "fail-safe" options that would accommodate wastewater flows in case of power outage or plant failure Improvements needed to deliver recycled water to the currently identified primary user, Otay Water District, in addition to the amount of potential revenue that would result Available options and associated costs for the discharge of potentially unused recycled water generated by the treatment plant Gain an understanding of public concerns regarding such a project in the City of Chula Vista through a community meeting facilitated by the consultant Additional "optional" tasks the consultant may be asked to complete include research on available grant funding options (and assistance in applying for said grants) used to help fund the construction of the treatment plant, as well as analysis of public/private partnerships that use private financing to fund plant construction. The cost associated with both the mandatory and optional tasks described in the scope of work shall not exceed $300,000. Staff proposes to limit the cost of the mandatory tasks to $200,000 which is to be shared by both agencies. In order to proceed with advertising and awarding of a contract to complete the feasibility study, the City and Otay must first enter into an agreement outlining the scope of the study, roles of each agency, and funding responsibilities. According to the tenus of the proposed agreement, Chula Vista shall act as the lead agency with respect to professional engineering consultant acquisition and contracting, project management, and financing of the project, and will therefore be responsible for such tasks as scheduling consultant interviews, project team meetings, and payment of consultant invoices. Chula Vista will also serve as the primary point of contact with the consultant. No additional consideration shall be granted to Chula Vista as a result of these responsibilities. In all other respects, the City and Otay will jointly and equally participate in any and all other efforts of the project such as in making comments and providing direction in the interview of potential consultants, reviewing the feasibility study, funding, and overseeing the performance of the scope of work to be accomplished by a professional engineering consulting firm. Lastly, under the terms of the agreement, Otay will reimburse the City for half of the expenses of the feasibility study in an amount not to exceed S 150,000. Proposed Proiect Schedule As detailed in the proposed scope of work, it is anticipated the feasibility study would be completed in nine months or less. Within the first two months of the project, the 5~4 9/1/09, Item2 Page 5 of 5 consultant is to draft, and obtain approval from the City and Otay, of a "Technical Memorandum" outlining the components of the feasibility study itself. In addition, they are to establish a schedule for delivering the final report, and for holding the required community meeting and Council workshop. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section l8704.2(a)(1) is not applicable to this decision. CURRENT FISCAL IMPACT The proposed action is to approve an agreement between the City of Chula Vista and the Otay Water District. Therefore, there is no fiscal impact to the General Fund. City staff will bring an item before the Council to award the contract for the feasibility study. Funding of the City's portion of the feasibility study is budgeted in Clr SW258 "Sewer Capacity Analysis" which was originally created with the intent of financing the preliminary engineering and design/planning effort. The current balance of SW258 is $244,992. ONGOING FISCAL IMPACT None. ATTACHMENTS A. Agreement between the City ofChula Vista and Otay Water District including Scope of Work for the feasibility study Prepared by: Jim Newton, Senior Civil Engineer. Public Works Department 1vf"\EngineerIAGENDA ICAS2009\09-01-09\CAS jor MBRfeasibility sludv doc 5-5 Agreement Between the City of Chula Vista and Otay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND OTA Y WATER DISTRICT FOR JOINT PARTICIPATION TO PREPARE A WASTEWATER RECLA1ViA nON FACILITY FEASIBILITY STUDY This Agreement is entered into on ,2009, by and between the City of Chula Vista (hereinafter referred to as Chula Vista) a Municipal Corporation, and the Otay Water District (hereinafter referred to as Otay), a water district organized under the Municipal Water District Law of 1911. Chula Vista and Otay are collectively referred to hereinafter as the Parties and singularly, Party. Chula Vista and Otay, in consideration of their mutual covenants, and for other valuable considerations, agree as follows: RECITALS A. The economy, employment, and quality of life within the San Diego County region is dependent on a reliable and affordable water supply, which requires cooperation among local water and sewer service agencies through the pursuit of goals that are of mutual and regional benefit. B. In 2005 Chula Vista completed a Wastewater Master Plan, concurrent with the update of the City of Chula Vista's General Plan, which identified a shortage of wastewater collection disposal capacity prior to the City of Chula Vista's ultimate build out. C. Additional wastewater collection disposal capacity can be obtained by Chula Vista through the construction of a wastewater reclamation facility within the City of Chula Vista or by acquiring additional sewage disposal capacity from the City of San Diego or from other participating agencies within the Metropolitan Sewerage System, per terms of the Regional Wastewater Disposal Agreement. D. The current Otay long-term projected recycled water demand established the need for increased recycled water supply to satisfy the market demand. E. The Parties intend to work jointly and cooperatively towards the completion ofa feasibility study analyzing the potential construction of a wastewater reclamation facility within the City of Chula Vista, which includes recycled water production for increased local supply. F. Chula Vista; in coordination with Sweetwater Authority and Otay, have completed two studies analyzing the feasibility of constructing a wastewater reclamation facility within the City ofChula Vista utilizing Membrane Bioreactor (MBR) technology capable of producing recycled water meeting Title 22 requirements. The MBR technology was found to be technically feasible. G. The Parties wish to further analyze the feasibility of a wastewater reclamation facility through the acquisition of professional engineering consulting services to provide additional analyses regarding costs and physical improvements required to permifand construct a wastewater reclamation facility.. 1 5-6 Agreement Between the City of Chula Vista and Gtay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study H. The Parties each have determined that it is in their respective best interest and in the interest of their customers and constituents to enter into this Agreement. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. All exhibits attached to this Agreement constitute an integral part of this Agreement and are incorporated into the terms hereof. 2. The wastewater reclamation facility feasibility study is hereafter referred to as the Project. 3. The Parties agree that neither this Agreement nor the completion of the Project, as herein contemplated, is a project subject to CEQA. 4. Chula Vista and Otay staff expenses, for implementation and management of the Project efforts, shall be paid for by each Party and not shared by or between the Parties and shall not be included or considered in each Parties computation of its participation toward costs of the Proj ect. 5. Chula Vista shall act as the lead agency with respect to professional engineering consultant acquisition and contracting, project management, and fmancing of the Project, and will therefore be responsible for such tasks as scheduling consultant interviews, project team meetings, and payment of consultant invoices. Chula Vista will also 'serve as the primary point of contact with the consultant. No additional consideration shall be granted to Chula Vista as a result of these responsibilities. In all other respects, the Parties will jointly and equally participate in any and all other efforts of the Project such as in making comments and providing direction in the interview of potential consultants, reviewing the feasibility study, and overseeing the performance of the scope of work to be accomplished by a professional engineering consulting firm. This provision shall in no way affect the obligations of each Party under the terms of this Agreement. 6. The Parties agree that the scope of work for the Project as provided in Exhibit "A", attached to this Agreement, shall be used in the Chula Vista request for proposal for acquisition of professional engineering consulting services for the Project. 7. The budget for the Project is currently set at $300,000 and each Party agrees to obligate funds to the Project as follows: a. Otay shall budget and contribute an amount not to exceed $150,000 for the professional engineering consultant services required to complete the Project. b. Chula Vista shall budget and contribute an amount not to exceed $150,000 for the professional engineering consultant services required to complete the Project. 2 5-7 Agreement Between the City of Chula Vista and Otay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study c. Should the consultant fee submitted with the proposals received for the Project from consultants be in excess of $300,000, Chula Vista may agree to be solely responsible for the excess costs.. In this case, the Otay contribution would remain at the not to exceed $150,000 amount. If Chula Vista chooses not to contribute additional funds above its not to exceed $150,000 budget amount for the Project, then Chula Vista will work with Otay to either reduce the proposed scope of work as provided in Exhibit "A" in a manner such that the consultant could complete the study within the $300,000 total budget or agree to increase the total budget accordingly with costs shared at 50-50 between the Parties. d. . Should the Parties to this Agreement agree to request the consultant to whom the contract is awarded to complete any or all of the Optional Tasks described within the Exhibit "A" scope of work, each of the Parties will pay 50% of the cost of the performance of each agreed upon Optional Task. e. Should either Party to this Agreement without the consent of the other Party request the consultant to whom the contract is awarded to complete any or all of the Optional Tasks described within the Exhibit "A" scope of work, the Party making . the request shall be obligated to solely pay for the performance of the requested Optional Task(s). 8. The Parties agree to amend this Agreement as may be necessary to address any changes or additions to the Exhibit "A" scope of work for the Project, to address any increases in contributions above $150,000 by either Party, or to address adding any or all of the Optional Tasks described within Exhibit "A" for the Study that may arise. The Parties agree to negotiate, approve, and execute any required amendments to this Agreement in a timely fashion. 9. The Parties shall seek, in good faith and within a reasonable time, to resolve any disputes regarding this Agreement first by meeting and conferring among two designated staff representatives, one each from Chula Vista and Otay. Any dispute that cannot be resolved by the staff representatives may be referred by either Party to the Chula Vista City Manager and to the Otay General Manager for resolution. Neither Party will resort to litigation until there is an impasse between the Chula Vista City Manager and the Otay General Manager. 10. The current projected schedule for the Project is as follow: . Award professional engineering consultant services contract: December 2009. . Complete Project: February 2011. 11. Chula Vista shall invoice Otay monthly per the terms of this Agreement and any of its amendments for Otay's portion of the invoiced amounts Chula Vista approves for payment to the consultant for the Project. As long as Otay's budget, as established under paragraph 7.a., above .or later agreed to by Otay in writing, is not exceeded, Otay shall be obligated to remit payment in full within sixty (60) calendar days from the Chula Vista invoice date. If Chula Vista approves for payment any amounts in excess of the budget established in paragraph 7 herein withoutthe 3 5-8 Agreement Between the City of Chula Vista and Otay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study prior written consent of Otay, Chula Vista shall bear sole responsibility for the amounts that exceed budget unless Otay, in its sole discretion, agrees to pay any portion of the excess costs. Invoices shall be sent to Otay at the address of2554 Sweetwater Springs Boulevard, Spring Valley, CA 91978-2096, Attention: James Peasley. 12. In the event Otay fails to pay any amount when due, interest thereon shall accrue at the rate often percent per annwn from the date when due until payment is received by Chula Vista. 13. All work products resulting from the professional engineering consultant services provided for the Project shall be the joint property of Chula Vista and Otay. 14. The term ofthis Agreement shall be from the date first above indicated and shall continue until when the Project is 100 % complete and all invoices have been paid unless this Agreement is earlier terminated by mutual agreement of tlie Parties. . IS. Each Party agrees to indemnify, defend at its expense, including attorneys' fees, and hold the other harmless from and against all claims, costs, demands, losses, and liability of any nature whatsoever, including but not limited to liability for bodily injury, sickness, disease or death, property damage (including loss of use), or violation of law, caused by or arising out of any error, omission, negligent act, or willful misconduct of that Party, its officers, directors, employees, agents, volunteers, or. any other person acting pursuant to its control in performing under this.Agreement. 16. The indemnification provisions of this Agreement shall survive termination of this Agreement. 17. This Agreement, and any and all exhibits attached to it, represent the entire understanding of the Parties as to those matters contained in it, and supersedes and cancels any prior oral or written understandings, promises, or representations with respect to those matters covered in it. 18. All exhibits and Recitals contained herein are incorporated into this Agreement by this reference. 19. This Agreement will be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court in the County of San Diego, State of California; provided that the dispute resolution procedure outlined in paragraph 21, below, has been completed. California law shall apply, without regard to any conflict oflaws to the interpretation of any provision of this Agreement. 20. This Agreement may be modified only by a subsequent written amendment executed by the Parties. Either Party may give notice that it wishes to amend this Agreement at any time 'With written notice. Any amendments will have to be mutually agreed upon by both Chula Vista and Otay, in writing. 21. If a dispute arises out of, or relates to this Agreement, or the breach thereof, which cannot be resolved by the Parties, the Parties will first submit to mandatory mediation under the Rules 4 5-9 Agreement Between the City ofChula Vista and Otay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study of the American Arbitration Association or any other neutral organization agreed upon before having recourse in a court ofIaw. Any agreements resulting from mediation shall be documented in writing by all Parties. Mediation shall be confidential in accordance with the provisions of Cali fomi a law. All mediation results shall be "non-binding" and inadmissible for any purpose in any legal proceeding, unless all Parties otherwise agree upon such admission in writing. 22. 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 6fwhich 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, Gtay shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 23. No failure of a Party to insist upon the strict performance by the other of any covenant, term, or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach or of such covenant, term, or c0l1dition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect to any existing or subsequent breach. 24. None of the Parties shall assign its respective obligations under this Agreement without the prior written approval of the other Party. Any assignment in violation of this paragraph shall constitute a default by the Party attempting the assignment and is grounds for immediate termination of this Agreement or fo{the enforcement of any available equitable remedies, at the discretion of the other Party. In no event shall any putative assignment create a contractual relationship between the other Party and any putati ve assignee. 25. This Agreement and all rights and obligations contained herein shall be in effect whether or not any or all Parties to this Agreement have been succeeded by another entity, and all rights and obligations of the Parties shall be vested and binding on their successors-in-interest. . 26. If the performance of any act required of the Parties is directly prevented or delayed by reason of strikes, lockouts, labor disputes, vandalism, terrorism or other criminal act, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Party required to perform an act, that Party shall be excused from performing that act for the period of time equal to the period of time of the prevention or delay. In the event the Party claims the existence of such a delay, the Party claiming the delay shall notify the other Party in writing of that fact within 14 calendar days after the beginning of any such claimed delay. 27. The Parties agree that they have the right to be advised by counsel with respect to the negotiations, terms, and conditions of this Agreement, and the decision whether to seek advice of counsel with respect to this Agreement is the sole responsibility of each of the Parties. This 5 5-10 Agreement Between the City of Chula Vista and Otay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study Agreement shall not be construed in favor of or against any Party by reason of the extent to which each Party participated in the drafting of this Agreement. 28. In the event anyone of the provisions of this Agreement shall for any reason be held invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal, or unenforceable provision(s) shall be replaced by a mutually acceptable provision, which being valid, legal, and enforceable, comes closest to the intention of the Parties underlying the invalid, illegal, or unenforceable provision. 29. For purposes of this Agreement, the relationship of the Parties is that of independent entities and not as agents of each other or as joint ventures or partners. The Parties shall maintain sole and exclusive control over their personnel, agents, consultants, and operations. 30. Nothing in the provisions of this Agreement is inte'nded to create duties or obligations to or rights in third parties or affect the legal liability of the Parties to this Agreement to third parties. 31. This Agreement may be executed in multiple counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. 32. If any part of this Agreement is abandoned or indefinitely delayed, due to circumstances beyond the control of the Parties, this Agreement may be terminated by the either Party. 33. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, and return receipt requested, postage prepaid, addressed to: Otay Water District General Manager 2554 Sweetwater Springs Blvd. Spring Valley, CA 91978-2096 City ofChula Vista Director of Public Works 276 Fourth Avenue ChulaVista, CA 91910 and shall be effective upon receipt thereof. 34. This Agreement shall not be deemed to have been accepted and shall not be binding upon either Party until duly authorized officers of both Parties have executed this Agreement. 35. Chula Vista and Otay execute this Agreement, thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms and conditions. 6 5-11 Agreement Between the City ofChula Vista and Gtay Water District for J oint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study 36. The individuals executing this agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities. 37. This Agreeme.nt shall be deemed executed and effective as of the date first written above on this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. City ofChula Vista Otay Water District By James D. Sandoval City Manager By Mark Watton General Manager Approved as to form and legality: Bart Miesfeld City Attorney Otay Water District General Counsel Attachments: Exhibit "A" 7 5-12 CONSULTANT SERVICES NEEDED TO FACILITATE THE CITY OF CHULA VISTA ACQUISITION OF ADDITIONAL W ASTEW A TER DISPOSAL CAP ACITY REQUEST FOR PROPOSALS AND SCOPE OF WORK Project Narrative In 2005, the City ofChula Vista (Ciiy) updated its Wastewater Master Plan (WWMP) concurrent with the update of the City's General Plan. As part of that effort, the City analyzed the impact of the "Preferred Land Use Alternative" at build out. It was determined that the City would be generating more sewage flow than the City had the ability to dispose and/or treat. Therefore, the City needs to increase its disposal and/or treatment capacity either through the acquisition of additional capacity rights in the City of San Diego, (Metro System Capacity) or through the construction of its own independent wastewater reclamation facility. Since the additional sewage disposal and/or treatment need determination, the City has conducted or participated in a variety of studies to explore these alternatives. The purpose of this Request for Proposal (RFP) is to solicit and retain a consultant to conduct a comprehensive analysis of the options under consideration, taking into account the findings of previous studies, and advise the City and Otay Water District on the best course of action. Previous Studies City of Chula Vista Wastewater Reclamation Plant Studv bv Bro\\TI & Caldwell- April 2005 In June 2005, Sweetwater Authority (Sweetwater) completed a Recycled Water Master Plan (R WMP) for its service area that identified potential recycled water customers, the infrastructure to serve those customers, and their projected average annual recycled water demand. Concurrent with Sweetwater's RWMP, the City retained the services of a consultant - Brown & Caldwell (B&C) - to conduct a study that would evaluate the options available to the City to deal with its projected Metro Systcm wastewater disposal capacity deficiency, estimated to be 5 mgd, The B&C study evaluated a variety of options to deal with the City's projected capacity deficiency including varying combinations of conventional "end of ihe pipe" secondary and MBR reclamation type facilities. It compared the benefits/costs of those alternatives to acquiring additional capacity in the Metro system. The study ultimately recommended the acquisition of additional capacity in the Metro system as the most cost-effective alternative. A copy of the B&C study is attached as Exhibit I. It is important to note that the B&C study was done with the underlying assumption that the Dynergy (formerly Duke Energy) power plant, the key user identified through Sweeiwater's' RWMP, would be the primary user of the recycled water generated tram the reclamation plant. Since then, due to a variety of reasons, the Dynergy plant is no longer considering utilizing recycled water for their cooling process, which further impacted the findings of the B&C study. 5-13 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 2 of 9 Joint Feasibilitv Studv for a Wastewater Reclamation Plant (MBR) bv RMC Water & Environment - October 2007 In 2006, subsequent to the decision by Dynergy to pursue other options for their cooling process, Otay Water District (Otay WD) indicated a need to augment their recycled water supply. In addition, Sweetwater was also exploring the feasibility of developing and constructing an independent recycled water distribution system in their service area. Consequently, the City of Chula Vista, Sweetwater, and Otay WD, retained another consultant, RMC Water & Environment, to prepare a feasibility study to evaluate the feasibility of constructing a Membrane Bioreactor Wastewater Reclamation Plant (MBR). It was contemplated that the MBR plant would reduce the City's reliance on the City of San Diego (Metro System) treatment facilities while allowing the Sweetwater Authority and/or Otay WD to purvey recycled water to retail recycled water customers within their service areas. The MBR plant would operate by "scalping" flow off the existing wastewater trunk lines, while returning the resulting solids to the Metro System. The MBR Study was completed in October 2007, and the results of that analysis showed that the project was not economically advantageous for the Sweetwater Authority due to the excessive cost associated with the construction of transmission and distribution lines required to convey the projected recycled water demand of Sweetwater. However, the MBR study suggested implementation costs associated with a Chula VistaJOtay WD '4 MOD MER facility seemed comparable to that of the City obtaining capacity in the Metro System directly, and should be further analyzed. A copy of the study is attached as Exhibit 2. Metro Capacitv Valuation Studv bv Raftelis& Associates - November 2007 Concurrent with the Joint Feasibility Study, the Participating Agencies (PAs) in the Metro System also retained a consultant, Raftelis & Associates, to prepare a Capacity Valuation Study with the goal of determining a value for treatment capacity in the Metro system. The results of that study would enable member agencies to trade, exchange; or lease capacity among themselves. A copy of the most recent draft of the study is attached as Exhibit 3. SCOPE OF WORK The City is currently weighing two primary options for the acquisition of additional sewage disposal capacity: 1. Purchase of additional Metro System capacity rights from another member agency, including the City of San Diego, for a price within the range recommended by the Capacity Valuation Study. . 2. Build a new wastewater reclamation facility in partnership with Otay WD and/or other agenCIes. 5-14 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 3 of 9 . Through the studies discussed above, the City has developed some level of understanding of the benefits/costs, opportunities, and constraints associated with pursuing either option. The City is now interested in retaining additional consultant services to better refine some of the elements of the options under consideration. The cost for these services is not to exceed $200,000. The tasks outlined below in the Scope of Work shall enable the Consultant to provide guidance to the City and to Otay WD on the best course of action: City and Otay WD Objectives 1. Provide reliable, cost-effective wastewater disposal service to accommodate both near- term and long-term grow1h projections in a manner that protects, or even benefits, the local environment. . 2. Ensure the City has adequate authority and control to meet City wastewater needs to buildout. 3. Gain approval of our long-term servIce plan from the public, elected officials, and regulatory agencies. 4. Develop increased local recycled water supply for the Otay WD. City and Otay WD Project Goals: I. Provide the City with information regarding an option to acqulflng additional Metro System disposal capacity from another agency or agencies allowing City to meet treatment capacity needs now, and to City buildout. 2. Provide the City information regarding a realistic preliminary plan and associated cost estimates to develop a cost effective wastewater reclamation facility year-round (such as an MBR plant) able to meet City needs now, and to City buildout. 3. Provide the City with information regarding a wastewater reclamation facility that would increase the Otay WD supply of recycled water, and the impacts on such a facility resulting from decreased recycled water demand during the winter months. Task 1 - Collect Existing Data The Consultant shall compile and review the following existing studies and documents: o Sweetwater Recycled Water Master Plan o City of Chula Vista Wastewater Master Plan by PBS&J - May 2005 o City of Chula Vista Wastewater Reclamation Plant Study by Brown & Caldwell- April 2005 o Joint Feasibility Study for a Wastewater Reclamation Plant (MBR) by R.J\1C Water & Environment - October 2007 o Metro Capacity Valuation Study by Rafte!is& Associates - February 2008 5-15 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 4 of 9 . City of Chula Vista's Build out Flow Projections - July 2008 - Wastewater Engineering . Master Wastewater Disposal Agreement with the City of San Diego . East Ofay Mesa Sewer Study by PBS&J on behalf of County of San Diego . Otay Water District Draft Water Resources Master Plan by PBS&J . Otay Water District Integrated Water Resources Plan, by CDM . Draft Otay Water District North District Recycled Water System Development Project Phase I Concept Study, by PBS&J Task 2 - Treatment Analysis A) Previous studies have evaluated MER plants able to treat up to 4 MGD. The Consultant shall re-evaluate the MBR treatment option for planning, permitting, environmental, design, construction management, and construction costs, including all associated improvements required to support, a 6 MGD reclamation plant. Said plant should be phased to meet short-term and long-term needs, but should ultimately be fully constructed in no more than three phases; Each phase should be able to produce recycled water meeting the requirements of Title 22 and the requirements of the existing Otay WD recycled water R WCWB permit. Cost estimates for the plant should consider a design that would enclose all treatment facilities within an aesthetically. pleasing building that would allow the plant to be located in, or near, a residential community. B) The Consultant shall evaluate up to three potential project sites proposed by City staff to determine if the sites provide adequate acreage for each of the treatment facility scenarios described above. This analysis should include, but not be limited to, "Site I" as discussed in the RMC Study, provide land acquisition cost estimates, and a list of facilities required (and their associated costs) in order to connect proposed sites to both sewer and recycled water transmission lines. Task 3 -Effluent Diversion Options The Consultantshall prepare a detailed evaluation of various effluent diversion options: A) Fail-safe Requirements - The Consultant shall evaluate and recommend the most cost- effective, feasible option for providing a fail-safe mechanism for the reclamation plant in case the plant becomes non-operational for any reason. Options to be considered shall include, but not be limited to, on-site storage or re-introduction of the effluent flows into a trunk sewer line and ultimately into the City of San Diego South Metro Interceptor. The Consultant shall determine what penalties, if any, the City would need to pay per day to the Metropolitan Wastewater District for any treatment capacity volume violations associated with re-introduction of effluent flows from the plant into the Metro System. Capital, operation, and maintenance related costs associated with 5-16 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 5 of 9 each option identified should be analyzed over a 20-year period and discussed in the report. B) Effluent Diversion - Otay WD is currently designated as the primary user of the recycled water to be generated by the proposed wastewater reclamation facility. The Otay WD has updated long-term recycled water demand projections. It is projected that the Otay WD may not be able to- take all the flow generated by the proposed wastewater reclamation facility in the near term, especially during the winter months. Consequently, the Consultant shall provide an evaluation of the Otay WD long-term market demand for recycled water in relation to winter demand and current take or pay requirements per terms of the existing SB WRP supply agreement with the City of San Diego. This evaluation will consider the potential of the recycled water supply from the Ralph W. Chapman Water Recycling Facility both being not available and available to the eastern portion of the City and the demand increase associated with the recycled water supply link to the Otay Mesa. The Consultant shall also determine the potential revenue generated from water sales under the following scenarios: a. Otay purchases all of the flow generated year-round by the MBR or other such plant b. Otay only purchases the amount of water they need in order to meet demand with remaining recycled water being conveyed to the South Bay Ocean Outfall. c. Otay only purchases the amount of water they need in order to meet demand with remaining recycled water being conveyed into the Salt Creek drainage basin. C) The Consultant shall also quantify the City of San Diego's cost for treating flow through the South Bay Wastewater Reclamation Plant (SBWRP). Determine at the SBWRP the cost of treatment to the secondary level and the cost of treatment to the tertiary level, and their potential net revenue loss of not selling recycled water to the Otay WD. D) As identified in the R1\1C study, a wastewater reclamation facility to be potentially located along Main Street ("Site 1") would require the construction of a transmission pipeline to convey recycled water to the existing 30-inch diameter Otay WD recycled water transmission main connecting the SBWRP with the Otay WD 450-1 Reservoir. The Consultant shall re-evaluate the size and cost (including both capital and maintenance costs over a 20 year period) to construct a transmission line from the wastewater reclamation facility to the Otay WD existing recycled water transmission main able to accommodate flows resulting from a 6 MGD treatment facility. The Consultant shall also analyze the feasibility and discuss the capital, operational, and maintenance costs associated with improvements that may be required to utilize the existing 30-inch transmission main that will allow produced recycled water generated by the proposed reclamation plant to flow into the South Bay Ocean Outfall via the 5-17 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 60f 9 SBWRP systems during periods oftime when the Otay WD has insufficient demand for recycled water. E) The Consultant. shall determine the capital and maintenance costs associated with constructing an independent dedicated transmission line to convey recycled water that is able to convey up to 6 MGD from the existing Otay WD transmission main to the South Bay Ocean Outfall over a 20 year period. This could be either a connection directly to the South Bay Ocean Outfall or disposal via the existing International Boundary and Water Commission ("IBWC") Treatment Facility system. F) The Consultant shall evaluate the possibility of discharging excess recycled water produced during low demand periods of the year, via live stream discharge into the Salt Creek or other drainage basin and/or discharge via constructed wetlands, as a means to dispose of all, or a portion of, treated effluent from the proposed reclamation facility. The evaluation shall include permitting issues, constraints, potential discharge and wetland locations within the City of Chula Vista or other viable locations, and all costs associated with the permitting, construction, and maintenance of such facilities. Task 4 - Permitting Requirements The Consultant shall clearly identify all applicable regulatory agencies that have oversight on wastewater reclamation facilities. The Consultant shall list these agencies and the permits required including purpose of each permit from each agency, and the order that each permit should be obtained. The Consultant shall also describe probable timeframes, required studies, and costs associated with the acquisition of each permit. Task 5 - Create a Matrix of Options The Consultant shall create a matrix of all the results of the various wastewater reclamation studies, including the study described herein, and show how these options compare to the "Metro Capacity" costs shown in the Capacity Valuation Study. Task 6 - Recommend Options Based on City of Chula Vista and Otay WD Project Goals and Objectives as previously described, the Consultant shall make a recommendation to proceed with one of the following: A) Purchase of additional Metro System capacity rights from the City of San Diego or a participating member agency - provide guidance on negotiation parameters and on the determination of a "fair price." B) Construct a wastewater reclamation facility in the City ofChula Vista. The study to be accomplished as described herein along with previous studies have all analyzed the costs for increasing the City's wastewater disposal capacity by building an MBR 5-18 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 7 of 9 reclamation plant. The City chose this direction primarily based on the understanding that MER plants need a relatively small footprint on which to operate, are relatively easy to operate, are reasonably priced, and can be easily upsized should our treatment needs grow in the future. The Consultant, having read the existing studies on the topic and understanding the City's needs, shall briefly discuss whether or not an MBR plant is the most appropriate type of facility to increase the City's sewer disposal capacity, or if other treatment methods should be considered. The Consultant shall briefly summarize their findings in the report should the construction of a treatment facility be their recommendation, stating that either the City is correct in analyzing an MBR plant as the best available option, or recommend an alternative treatment method with specific reasons as to why such an option would provide a better alternative for the City of Chula Vista than an MBR facility. Task 7 - Meetings and Public Outreach The Consultant shall assume the following meetings are required: A) One two-hour kickoff meeting with City and Otay WD staff to review the existing reports and data being provided to the Consultant, and to ensure understanding of the desired scope of work. B) Two two-hour workshops with City and Otay WD staff to review Consultant's draft report, matrix of options, and recommendations. C) One two-hour workshop with City of Chula Vista Council members. D) One two-hour workshop with Otay WD Board of Directors. E) One City of Chula Vista Council meeting. F) One Otay WD Board of Directors Meeting. The Consultant and the City along with Otay WD may recommend additional meetings that they deem necessary to facilitate the achievement of the project goals and objectives. In addition to the meetings described above, the Consultant will be expected to hold one community meeting to introduce the concept of a Chula Vista wastewater reclamation facility, obtaining the general public's opinion of the idea and any concerns they may have. The Consultant will be expected to facilitate the meeting with assistance from City and Otay WD staff at a location to be determined and provided by the City of Chula Vista. Task 8 - Deliverables A) Deliverables shall include an outline. of the Consultants' report (Technical Memorandum) and Final Report. 5-19 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 8 of 9 B) A progress report (one page bullet item summary of activities initiated, on-going, and/or completed during the period) shall be included with the Consultant's monthly mVOlce. Task 9 - Schedule The Consultant shall be allowed six weeks from receipt of the Notice to Proceed and receipt of all background data shown in Task I to complete the Technical Memorandum, and two weeks after the City and Otay WD review comments have been received to complete the final draft of the Technical Memorandum. The Consultant shall allow two weeks each for the agencies reviews of draft reports. By the time the Technical Memorandum is completed and approved by the City and Otay WD, the Consultant shall establish a schedule for the delivery of the Final Report acceptable to the Consultant, the City, and Otay WD. Said schedule shall not exceed 9 months from the notice to proceed. Optional Tasks Consultant shall prepare individual cost estimates for the optional tasks described below. These tasks are optional in that the City and Otay WD mayor may not decide to ask the Consultant to perform the work. A) Preparing a Grant Application - The Consultant selected for the project may be asked to prepare a grant application seeking funding from appropriate sources for either or all of the planning, design, and/or construction of a wastewater reclamation facility. B) The Consultant selected may be asked to provide an analysis of a San Diego County Water Authority study regarding a regional brine line to determine potential project cost savings for utilizing such a regional facility for disposal of excess recycled water produced. Said analysis would be needed for each potential project site and account for the improvements required to connect the reclamation facility to the proposed brine line. C) For companies or project teams that provide operation and facility financing services under "design-build-operate-finance" agreements or other such public-private partnerships: Evaluate the different facilities described in Task 2A over a 20-year and 30-year period, comparing the costs the City would incur under a traditional design- build process (with the City operating the facility) versus a public-private partnership (with funding and facility operation coming from private entities). Provide detailed information regarding the manner in which such a partnership would work. D) Identify large potential recycled water customers in Chula Vista west of 1-805 (such as the San Diego Country Club), estimate the volume of recycled water they might consume throughout the year, and determine the costs associated with building the infrastructure necessary to deliver recycled water from the reclamation plant to each. Firm Qualification Submittal Requirements: 5-20 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 9 of 9 Interested applicants are requested to submit a summary of their qualifications. The statements shall be concise and not exceed a total of 15 pages two-sided or 30 pages one-sided inclusive of all appendices ""ith narrative font size no smaller than I O. The statement shall include the following: 1. General description of the consulting firm with the name, address, contact number, along with the firm's expertise, qualifications, and involvement in this type of consulting. 2. The office location of the principal consultant who will be providing the services. 3. Overall understanding of the scope of work and identification of unique characteristics of this proj ect. 4. Record of completed similar work or projects within the last five years with a comparable magnitude in size, scope of work, and include references and contact information. 5. List of specific experience demonstrating a complete understanding of MBR systems and other treatment options, including their design, capital, and operating costs. 6. List of each key member of the team as well as any sub-consultant's team to be utilized on this project along with individual staffs qualifications and recent experience within the past five years in similar projects with your firm that has been completed and/or is under construction. 7. List the name of the Project Manager, who will be the City's contact and his/her office location during the term of the contract. The selection process will be limited to the most qualified firms. In order to be considered, a firm's qualifications must include special knowledge of MBR technology along with associated design, capital, and operational costs. Additional consideration may be given to firms that have completed design projects using MBR technology or have a record of success on similar work for research and/or design of wastewater reclamation facilities. The Selection Advisory Committee will evaluate the statements and then recommend the top three to five most qualified firms to continue in the RIP evaluation process. The City and Otay WD staff shall consist of the selection team. J:\Engineer\SEWER\TREATNiENT PLAu"J"T\09 Feasibility Study\MBR Consultant Services RFP.doc 5-21 RESOLUTION NO. 2009 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND OTA Y WATER DlSTRlCT FOR JOINT PARTICIPATION TO PREPARE A WASTEWATER RECLAIv1A TION FACILITY FEASIBILITY STUDY WHEREAS, in 2005, the City completed the Wastewater Master Plan (WWMP) update concurrent with the General Plan update that identified a shortfall in the City of Chula Vista's long-term sewer treatment capacity needs; and WHEREAS, constructing a sewer treatment facility in Chula Vista able to treat sewage to current recycled water standards is one option being explored as a method of addressing the treatment capacity shortfall; and WHEREAS, based on previous studies and discussions with local water agencies, the City of Chula Vista has identified the Otay Water District as the primary user for any recycled water generated by a treatment facility within Chula Vista; and WHEREAS, both the City of Chula Vista and Otay Water District would like to partner in the preparation of a feasibility study analyzing the costs associated with constructing such a plant; and WHEREAS, the City of Chula Vista and Otay Water District each agree to contribute up to $150,000 towards such a feasibility study; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hercby approve of an agreement between the City of Chula Vista and Otay Water District for joint participation to prepare a wastewater reclamation facility feasibility study. Presented by Richard A. Hopkins Director of Public Works 5-22 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FOR.MALL Y SIGNED UPON APPROVAL BY THE CITY COUN L Dated: 8 L CCj Agreement between City of Chula Vista and Otay Water District for J oint Participation to Prepare A Wastewater Reclamation Facility Feasibility Study 5-23 Agreement Between the City of Chula Vista and Otay wTater District for joim Participation w Prepare a Wastewater Reclamation Facility Feasibility Study AGREEMEI'ff BETWEEN THE CITY OF CHULA VISTA At"l) OTAY WATER DISTRICT FOR JOINT PARTICIPATION TO PREPARE A WASTEWATER RECLAt'ViA.TION FACILITY FEASIBILITY STUDY This Agreement is entered into on , 2009, by and between the City of Chula Vista (hereinafter referred to as Chula Vista) a Municipal Corporation, and the Otay Water District (hereinafter referred to as Otay), a water district organized under the Municipal Water District Law of 1911. Chula Vista and Otay are collectively referred to hereinafter as the Parties and singularly, Party. Chula Vista and Otay, in consideration of their mutual covenants, and for other valuable considerations, agree as follows: RECITALS A. The economy, employment, and quality of life within the San Diego County region is dependent on a reliable and affordable water supply, which requires cooperation among local water and sewer service agencies through the pursuit of goals that are of mutual and regional benefit. B. In 2005 Chula Vista completed a Wastewater Master Plan, concurrent with the update of the City ofChula Vista's General Plan, which identified a shortage of wastewater collection disposal capacity pFior to the City of Chula Vista's ultimate build out. C. Additional wastewater collection disposal capacity can be obtained by Chula Vista through the construction of a wastewater reclamation facility \-vithin the City of Chula Vista or by acquiring additional sewage disposal capacity from the City of San Diego or from other participating agencies within the Metropolitan Sewerage System, per terms of the Regional Wastewater Disposal Agreement. D. The current Otay long-term projected recycled water demand established the need for increased recycled water supply to satisfy the market demand. E. The Parties intend to work jointly and cooperatively towards the completion of a feasibility study analyzing the potential construction of a wastewater reclamation facility within . the City of Chula Vista, which includes recycled water production for increased local supply. F. Chula Vista, in coordination with Sweetwater Authority and Otay, have completed two studies analyzing the feasibility of constructing a wastewater reclamation facility within the City ofChula Vista utilizing Membrane Bioreactor (MER) technology capable of producing recycled water meeting Title 22 requirements. The MER technology was found to be technically feasible. G. The Parties wish to further analyze the feasibility of a wastewater reclamation facility through the acquisition of professional engineering consulting services to provide additional analyses regarding costs and physical improvements required to permit and construct a wastewater reclamation facility. 1 5-24 Agreement Between the City of Chula Vista and Otay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study H. The Parties each have determined that it is in their respective best interest and in the interest oftheir customers and constituents to enter into this Agreement. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. All exhibits attached to this Agreement constitute an integral part of this Agreement and are incorporated into the terms hereof. 2. The wastewater reclamation facility feasibility study is hereafter referred to as the Project. 3.' The Parties agree that neither this Agreement nor the completion of the Project, as herein contemplated, is a project subject to CEQA. 4. Chula Vista and Otay staff expenses, for implementation and management of the Project efforts, shall be paid for by each Party and not shared by or between the Parties and shall not be included or considered in each Parties computation of its participation toward costs of the Project. 'i Chula Vista shall act as the lead agency with respect to professional engineering consultant acquisition and contracting, project management, and fmancing of the Project, and will therefore be responsible for such tasks as scheduling consultant interviews, project team meetings, and payment of consultant invoices. Chula Vista will also serve as the primary point of contact with the consultant. No additional consideration shall be granted to Chula Vista as a result of these responsibilities. In all other respects, the Parties will jointly and equally participate in any and all other efforts of the Project such as in making comments and providing direction in the interview of potential consultants, reviewing the feasibility study, and overseeing the performance of the scope of work to be accomplished by a professional engineering consulting fIrm. This provision shall in no way affect the obligations of each Party under the terms of this Agreement. 6. The Parties agree that the scope of work for the Project as provided in Exhibit "A", attached to this Agreement, shall be used in the Chula Vista request for proposal for acquisition of professional engineering consulting services for the Project. 7. The budget for the Project is currently set at $300,000 and each Party agrees to obligate funds to the Project as follows: a. Otay shall budget and contribute an amount not to exceed $150,000 for the professional engineering consultant services required to complete the Project. b. Chula Vista shall budget and contribute an amount not to exceed $150,000 for the professional engineering consultant services required to complete the Project. 5-25 2 Agreement Between the City of Chula Vista and Olay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study c. Should the consultant fee submitted with the proposals received for the Project from consultants be in excess of $300,000, Chula Vista may agree to be solely responsible for the excess costs. In this case, the Otay contribution would remain at the not to exceed $150,000 amount. If Chula Vista chooses not to contribute additional funds above its not to exceed $150,000 budget amount for the Project, then Chula Vista will work with Otay to either reduce the proposed scope of work as provided in Exhibit "A" in a manner such that the consultant could complete the study within the $300,000 total budget or agree to increase the total budget accordingly with costs shared at 50-50 between the Parties. d. Should the Parties to this Agreement agree to request the consultant to whom the contract is awarded to complete any or all of the Optional Tasks described within the Exhibit "A" scope of work, each of the Parties will pay 50% of the cost of the performance of each agreed upon Optional Task. e. Should either Party to this Agreement without the consent of the other Party request the consultant to whom the contract is awarded to complete any or all of the Optional Tasks described within the Exhibit "A" scope of work, the Party making the request shall be obligated to solely pay for the performance of the requested Optional Task(s). 8. The Parties agree to amend this Agreement as may be necessary to address any changes or additions to the Exhibit "A" scope of work for the Project, to address any increases in contributions above $150,000 by either Party, or to address adding any or all of the Optional. Tasks described within. Exhibit "A" for the Study that may arise. The Parties agree to negotiate, approve, and execute any required amendments to this Agreement in a timely fashion. 9. The Parties shall seek, in good faith and within a reasonable time, to resolve any disputes regarding this Agreement fIrst by meeting and conferring among two designated staff representatives, one each from Chula Vista and Otay.- Any dispute that cannot be resolved by the staff representatives may be referred by either Party to the Chula Vista City Manager and to the Otay General Manager for resolution. Neither Party will resort to litigation until there is an impasse between the Chula Vista City Manager and the Otay General Manager. 10. The current projected schedule for the Project is as follow: . Award professional engineering consultant services contract: December 2009. . Complete Project: February 2011. 11. Chula Vista shall invoice Otay monthly per the terms of this Agreement and any of its amendments for Otay's portion of the invoiced amounts Chula Vista approves for payment to the consultant for the Project. As long as Otay's budget, as established under paragraph 7.a., above or later agreed to by Otay in writing, is not exceeded, Otay shall be obligated to remit payment in full within SLXty (60) calendar days from the Chula Vista invoice date. If Chula Vista approves for payment any amounts in excess of the budget established in paragraph 7 herein without the 5-26 3 Agreement Between the City of Chul. Vista and Otay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study prior written consent of Otay, Chula Vista shall bear sole responsibility for the amounts that exceed budget unless Otay, in its sole discretion, agrees to pay any portion of the excess costs. Invoices shall be sent to Otay at the address of 2554 Sweetwater Springs Boulevard, Spring Valley, CA 91978-2096, Attention: James Peasley. 12. In the event Otay fails to pay any amount when due, interest thereon shall accrue at the rate often percent per annum from the date when due until payment is received by Chula Vista. 13. All work products resulting from the professional engineering consultant services provided for the Project shall be the joint property of Chula Vista and Otay. 14. The term of this Agreement shall be from the date first above indicated and shall continue - until when the Project is 100 % complete and allinvoices have been paid unless this Agreement is earlier terminated by mutual agreement of the Parties. 15. Each Party agrees to indemnify, defend at its expense, including attorneys' fees, and hold the other harmless from and against all claims, costs, demands, losses, and liability of any nature whatsoever, including but not limited to liability for bodily injury, sickness, disease or death, property damage (including loss of use), or violation of law, caused by or arising out of any error, omission, negligent act, or willful misconduct of that Party, its officers, directors, employees, agents, volunteers, or any other person acting pursuant to its control in performing under this Agreement. 16. The indemnification provisions of this Agreement shall survive termination of this Agreement. 17. This Agreement, and any and all exhibits attached to it, represent the entire understanding of the Parties as to those matters contained in it, and supersedes and cancels any prior oral or written understandings, promises, or representations with respect to those matters covered in it. 18. All exhibits and Recitals contained herein are incorporated into this Agreement by this reference. 19. This Agreement will be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court in the County of San Diego, State of California; provided that the dispute resolution procedure outlined in paragraph 21, below, has been completed.- California law shall apply, without regard to any conflict of laws to the interpretation of any provision of this Agreement. 20. This Agreement may be modified only by a subsequent written amendment executed by the Parties. Either Party may give notice that it wishes to amend this Agreement at any time with written notice. Any amendments will have to be mutually agreed upon by both Chula Vista and Otay, in writing. 21. If a dispute arises out of, or relates to this Agreement, or the breach thereof, which cannot be resolved by the Parties, the Parties will first submit to mandatory mediation under the Rules 5-27 4 Agreement Between the City of Cbula Vista and Gtay Water Disnict for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study of the American Arbitration Association or any other neutral organization agreed upon before having recourse in a court oflaw. Any agreements resulting from mediation shall be documented in writing by all Parties. Mediation shall be confidential in accordance with the provisions of California law. All mediation results shall be "non-binding" and inadmissible for any purpose in any legal proceeding, unless all Parties otherwise agree upon such admission in writing. 22. 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 suth policies and procedures used by the City in the implementation of same. Upon request by City, Otay shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 23. No failure of a Party to insist upon the strict performance by the other of any covenant, term, or condition of this Agreement, nor any failure to exercise any right-or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach or of such covenant, term, or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect to any existing or subsequent breach. 24. None of the Parties shall assign its rcspective obligations under this Agreement without the prior written approval of the other Party. Any assignment in violation of this paragraph shall constitute a default by the Party attempting the assignment and is grounds for immediate termination of this Agreement or for the enforcement of any available equitable remedies, at the discretion of the other Party. In no event shall any putative assignment create a contractual relationship between the other Party and any putative assignee. 25. This Agreement and all rights and obligations contained herein shall be in effect whether or not any or all Parties to this Agreement have been succeeded by another entity, and all rights and obligations of the Parties shall be vested- and binding on their successors-in-interest. 26. If the performance of any act required of the Parties is directly prevented or delayed by reason of strikes, lockouts, labor- disputes, vandalism, terrorism or either criminal act, unusual governmental delays, acts of God, fire, floods, epidemics, freight embargoes, or other causes beyond the reasonable control of the Party required to perform an act, that Party shall be excused from performing that act for the period oftime equal to the period oftime of the prevention or delay. In the event the Party claims the existence of such a delay, the Party claiming the delay shall notify the other Party in writing of that fact within 14 calendar days after the beginning of any such claimed delay. 27. The Parties agree that they have the right to be advised by counsel with respect to the negotiations, terms, and conditions of this Agreement, and the decision whether to seek advice of counsel with respect to this Agreement is the sole responsibility of each of the Parties. This 5-28 5 Agreement Between the City of Chula Vista and Gtay Water District for Jomt Participation to Prepare a Wastewater Reclamation Facility Feasibility Study Agreement shall not be construed in favor of or against any Party by reason of the extent to which each Party participated in the drafting of this Agreement. 28. In the event anyone of the provisions of this Agreement shall for any reason be held invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal, or unenforceable provision(s) shall be replaced by a mutually acceptable provision, which being valid, legal, and enforceable, comes closest to the intention of the Parties underlying the invalid, illegal, or unenforceable provision. 29. For purposes of this Agreement, the relationship of the Parties is that of independent entities and not as agents of each other or as j oint ventures or partners. The Parties shall maintain sole and exclusive control over their personnel, agents, consultants, and operations. 30. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties or affect the legal liability of the Parties to this Agreement to third parties. 31. This Agreement may be executed in multiple cqunterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. 32. .lf any part of this Agreement is abandoned or indefInitely delayed, due to circumstances beyond the control of the Parties, this Agreement may be terminated by the either Party. 33. Any notice or instrument required to be given or delivered by this Agreement may be . given or delivered by depositing the same in any United States Post Office, certified mail, and return receipt requested, postage prepaid, addressed to: Otay Water District General Manager 2554 Sweetwater Springs Blvd. Spring Valley, CA 91978-2096 City of Chula Vista Director of Public Works 276 Fourth Avenue Chula Vista, CA 91910 and shall be effective upon receipt thereof. 34. This Agreement shall not be deemed to have been accepted and shall not be binding upon either Party until duly authorized officers of both Parties have executed this Agreement. 35. Chula Vista and Otay execute this Agreement, thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms and conditions. 5-29 6 Agreement Between the City of Chula Vista and Otay Water District for Joint Participation to Prepare a Wastewater Reclamation Facility Feasibility Study 36. The individuals executing this agreement represent and warrant that they have the legal capacity and authority to do'so on behalf of their respective legal entities. 37. This Agreement shall be deemed executed and effective as of the date fIrst written above on this Agreement. IN WID,TESS wHEREOF, the Parties have executed this Agreement as of the date fIrst written above. City of Chula Vista Otay Water District By: James D. Sandoval City Manager By: Mark Watton General Manager Approved as to form and legality: Bart Miesfeld City Attorney Otay Water District General Counsel Attachments: Exhibit "A" 5-30 7 CONSUL TAl "IT SERVICES NEEDED TO FACILITATE THE CITY OF CHULA VISTA ACQUISITION OF ADDITIONAL WASTEWATER DISPOSAL CAPACITY REQUEST FOR PROPOSALS AND SCOPE OF WORK Project Narrative In 2005, the City of Chula Vista (City) updated its Wastewater Master Plan (WWMP) concurrent with the update of the City's General Plan. As part of that effort, the City analyzed the impact of the "Preferred Land Use Alternative" at build out. It was determined that the City would be generating more sewage flow than the City had the ability to dispose and/or treat. Therefore, the .City needs to increase its disposal and/or treatment capacity either through the acquisition of additional capacity rights in the City of San Diego, (Metro System Capacity) or through the construction of its own independent wastewater reclamation facility. Since the additional sewage disposal and/or treatment need determination, the City has conducted or participated in a variety of studies to explore these alternatives. The purpose of this Request for Proposal (RFP) is "to solicit and retain a consultant to conduct a comprehensive analysis of the options under consideration, taking into account the findings of previous studies, and advise the City and Otay Water District oI;lthe best WUrse of action. Previous Studies City of Chula Vista Wastewater Reclamation Plant Studv bv Brown & CaldweIl- April 2005 In June 2005, Sweetwater Authority (Sweetwater) completed a Recycled Water Master Plan (R WMP) for its service area that identified potential recycled water customers, the infrastructure to serve those customers, and their projected average annual recycled water demand. Concurrent with Sweetwater's RWMP, the City retained the services of a consultant - Brown & Caldwell (B&C) - to conduct a study that would evaluate the options available to the City to deal with its projected Metro System wastewater disposal capacity deficiency, estimated to be 5 mgd, The B&C study evaluated a variety of options to deal with the City's projected capacity deficiency including varying combinations of conventional "end of the pipe" secondary and MBR reclamation type facilities. It compared the benefits/costs of those alternatives to acquiring additional capacity in the Metro system. The study ultimately recommended the acquisition of additional capacity in the Metro system as the most cost-effective alternative. A copy of the B&C study is attached as Exhibit 1. It is important to note that the B&C study was done with the underlying assumption that the Dynergy (formerly Duke Energy) power plant, the key user identified through Sweetwater's RWMP, would be the primary user of the recycled water generated from the reclamation plant. Since then, due to a variety of reasons, the Dynergy plant is no longer considering utilizing recycled water for their cooling process, which further impacted the findings of.the B&C study. 5-31 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 2 of 9 Joint Feasibility Study for a Wastewater Reclamation Plant (MBR) by RMC Water & Environment - October 2007 In 2006, subsequent to the decision by Dynergy to pursue other options for their cooling process, Otay Water District (Otay WD) indicated a need to augment their recycled water supply. In addition, Sweetwater was also exploring the feasibility of developing and constructing an independent recycled water distribution system in their serVice area. Consequently, the City of Chula Vista, Sweetwater, and Otay WD, retained another consultant, RMC Water & Environment, to prepare a feasibility study to evaluate the feasibility of constructing a Membrane Bioreactor Wastewater Reclamation Plant (MBR). It was contemplated that the MBR plant would reduce the City's reliance on the City of San Diego (Metro System) treatment facilities while allowing the Sweetwater Authority and/or Otay WD to purvey recycled water to retail recycled water customers within their service areas. The MBR plant would operate by' "scalping" flow off the existing wastewater trunk lines, while returning the resulting solids to the Metro System. The MBR Study was completed in October 2007, and the results of that analysis showed that the project was not economically advantageous for the Sweetwater Authority due to the excessive cost associated with the construction of transmission and distribution lines required to convey the projected recycled water demand of Sweetwater. However, the MBR study suggested implementation costs associated with a Chula Vista/Otay WD 4 MGD MBR facility seemed comparable to that of the City obtaining capacity. in the Metro System directly, and should be further analyzed. A copy of the study is attached as Exhibit 2. Metro Caoacitv Valuation Study by Raftelis & Associates - November 2007 Concurrent with the Joint Feasibility Study, the Participating Agencies (PAs) in the Metro System also retained a consultant, Raftelis & Associates, to prepare a Capacity Valuation Study with the goal of determining a value for treatment capacity in the Metro system. The results of that study would enable member agencies to trade, exchange, or lease capacity among themselves. A copy of the most recent draft of the study is attached as Exhibit 3. SCOPE OF WORK The City is currently weighing two primary options for the acquisition of additional sewage disposal capacity: I. Purchase of additional Metro System capacity rights from another member agency, including the City of San Diego, for a price within the range recommended by the Capacity Valuation Study. 2. Build a new wastewater reclamation facility in partnership with Otay WD and/or other agenCIes. 5-32 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals . Page 3 of 9 Through the studies discussed above, the City has developed some level of understanding of the benefits/costs, opportunities, and constraints associated with pursuing either option. The City is now interested in retaining additional consultant services to better refine some of the elements of the options under consideration. The cost for these services is not to exceed $200,000. The tasks outlined below in the Scope of Work shall enable the Consultant to provide guidance to the City and to Otay WD on the best course of action: City and Otay WD Objectives I. Provide reliable, cost-effective wastewater disposal service to accommodate both near- term and long-term growth projections in a manner that protects, or even benefits, the local environment. 2. Ensure the City has adequate authority and control to meet City wastewater needs to buildout. 3. Gain approval of our long-term service plan from the public, elected officials, and regulatory agencies. 4. Develop increased local recycled water supply for the Otay WD. City and Otay WD Project Goals: ...'- . . 1. Provide the City with information regarding an option to acqumng additional Metro System disposal capacity from another agency or agencies allowing City to meet treatment capacity needs now, and to Citybuildout. 2. Provide the City information regarding a realistic preliminary plan and associated cost estimates to develop a cost effective wastewater reclamation facility year-round (such as an MBR plant) able .to meet City needs now, and to City buildout. 3. Provide the City with information regarding a wastewater reclamation facility that would increase the Otay WD supply of recycled water, and the impacts on such a facility resulting. from decreased recycled water demand during the winter months. Task 1 - Collect Existing Data The Consultant shall compile and review the following existing studies and documents: . Sweetwater Recycled Water Master Plan . City ofChula Vista Wastewater Master Plan by PBS&J - May 2005 o City of Chula Vista Wastewater Reclamation Plant Study by Brown & Caldwell - April 2005 o Joint Feasibility Study for a Wastewater Reclamation Plant (MER) by RMC Water & Environment - October 2007 o Metro Capacity Valuation Study by Raftelis'& Associates - February 2008 5-33 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 4 of 9 o City of Chula Vista's Build out Flow Projections - July 2008 - Wastewater Engineering o Master Wastewater Disposal Agreement with the City of San Diego o East Ofay Mesa Sewer Study by PBS&J on behalf of County of San Diego . Otay Water District Draft Water Resources Master Plan by PBS&J o 'Otay Water District Integrated Water Resources Plan, by CDM o Draft Otay Water District North District Recycled Water System Development Project Phase I Concept Study, by PBS&J Task 2 - Treatment Analysis A) Previous studies have evaluated MBR plants able to treat up to 4 MGD. The Consultant shall re-evaluate the MBR treatment option for planning, permitting, environmental, design, construction management, and construction costs, including all associated improvements required to support, a 6 MGD reclamation plant. Said plant should be phased to meet short-term and long-term needs, but should ultimately be fully constructed in no more than three phases. Each phase should be able to produce recycled water meeting the requirements of Title 22 and the requirements of th~ existing Otay WD recycled water RWCWB permit. Cost estimates for the plant should consider a design that would enclose all treatment facilities within an aesthetically. pleasing building that would allow the plant to be located in, or near, a residential conununity. B) The Consultant shall evaluate up to three potential project sites. proposed by City staff to determine if the sites provide adequate acreage for each of the treatment facility scenarios described above. This analysis should include, but not be limited to, "Site 1" as discussed in the RMC Study, provide land acquisition cost estimates, and a list of facilities required (and their associated costs) in order to connect proposed sites to both . sewer and recycled water transmission lines. Task 3 -Effluent Diversion Options The Consultant shall prepare a detailed evaluation of various effluent diversion options: A) Fail-safe Requirements - The Consultant shall evaluate and reconunend the most cost- effective, feasible option for providing a fail-safe mechanism for the reclamation plant in case the plant becomes non-operational for any reason. Options to be considered shall include, but not be limited to, on-site storage or re-introduction of the effluent flows into a trunk sewer line and ultimately into the City of San Diego South Metro Interceptor. The Consultant shall determine what penalties, if any, the City would need to pay per day to the Metropolitan Wastewater District for any treatment capacity volume violations associated with re-introduction of effluent flows from the plant into the Metro System. Capital, operation, and maintenance related costs associated with 5-34 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 50f 9 each option identified should be analyzed over a 2D-year period and discussed in the report. B) Effluent Diversion - Otay \VD is currently designated as the primary user of the recycled water to be generated by the proposed wastewater reclamation facility. The Otay WD has updated long-term recycled water demand projections. It is projected that the Otay WD may not be able to" take all the flow generated by the proposed wastewater reclamation facility in the near term, especially during the winter months. Consequently, the Consultant shall provide an evaluation of the Otay WD long-term market demand for recycled water in relation to winter demand and current take or pay requirements per terms of the existing SBWRP supply agreement with the City of San Diego. This evaluation will consider the potential of the recycled water supply from the Ralph W. Chapman Water Recycling Facility both being not available and available to the eastern portion of the City and the demand increase associated with the recycled water supply link to the Otay Mesa. The Consultant shall also determine the potential revenue generated from water sales under the following scenarios: a. Otay purchases all of the flow generated year-round by the MBR or other such plant b. Otay only purchases t4e'arriounf"ofwater they need in order to meet demand Witll remaining recycled water being conveyed to the South Bay Ocean Outfall. c. Otay only purchases the amount of water they need in order to meet demand with remaining recycled water being conveyed into the Salt Creek drainage basin. C) The Consultant shall also quantify the City of San Diego's cost for treating flow through the South Bay Wastewater Reclamation Plant (SBW"RP). Determine at the SBWRP the cost of treatment to the secondary level and the cost Of treatment to the tertiary level, and their potential net revenue loss of not selling recycled water to the Otay WD. D) As identified in the RMC study, a wastewater reclamation facility to be potentially located along Main Street ("Site I") would require the construction of a transmission pipeline to convey recycled water to the existing 3D-inch diameter Otay WD recycled water transmission main connecting the SBWRP with the Otay WD 450-1 Reservoir. The" Consultant shall re-evaluate the size and cost (including both capital and maintenance costs over a 20 year period) to construct a transmission line from the wastewater reclamation facility to the Otay WD existing recycled water transmission main able to accommodate flows resulting from a 6 MGD treatment facility. The Consultant shall also analyze the feasibility and discuss the capital, operational, and maintenance costs associated with improvements that may be required to utilize the existing 3D-inch transmission main that will allow produced recycled water generated by the proposed reclamation plant to flow into the South Bay Ocean Outfall via the 5-35 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 6 of 9 SBWRP systems during periods of time when the Otay WD has insufficient demand for recycl ed water. E) The Consultant shall determine the capital and maintenance costs associated with constructing an independent dedicated transmission line to convey recycled water that is able to convey up to 6 MGD from the existing Otay WD transmission main to the South Bay Ocean Outfall over a 20 year period. This could be either a connection directly to the South Bay Ocean Outfall or disposal via the existing International Boundary and Water Commission ("IBWC") Treatment Facility system. F) The Consultant shall evaluate the possibility of discharging excess recycled water produced during low demand periods of the year, via live stream discharge into the Salt Creek or other drainage basin and/or discharge via constructed wetlands, as a means to dispose of all, or a portion of, treated effluent from the proposed reclamation facility. The evaluation shall include permitting issues, constraints, potential discharge and wetland locations within the City of Chula Vista or other viable locations, and all costs associated with the permitting, construction, and maintenance of such facilities. Task 4 - Permitting Requirements The Consultant shall clearly 'ideritify all applicable regulatory agencies that have oversight on wastewater reclamation facilities. The Consultant shall list these agencies. and the permits required including purpose of each permit from each agency, and the order that each permit should be obtained. The Consultant shall also describe probable timeframes, required studies, and costs associated with the acquisition of each permit. Task 5 - Create a Matrix of Options The Consultant shall create a matrix of all the results of the various wastewater reclamation studies, including the study described herein, and show how these options compare to the "Metro Capacity" costs shown in the Capacity Valuation Study. Task 6 - Recommend Options Based on City of Chula Vista and Otay WD Project Goals and Objectives as previously described, the Consultant shall make a recommendation to proceed with one of the following: A). Purchase of additional Metro System capacity rights from the City of San Diego or a participating member agency - provide guidance on negotiation parameters and on the determination of a "fair price." B) Construct a wastewater reclamation facility in the CitY of Chula Vista. The study to be accomplished as described herein along with previous studies have all analyzed the costs for increasing the City's wastewater disposal capacity by building an MBR 5-36 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 7 of 9 reclamation plant. The City chose this direction primarily based on the understanding that MBR plants need a relatively small footprint on which to operate, are relatively easy to operate, are reasonably priced, and can be easily upsized should our treatment needs grow in the future. The Consultant, having read the existing studies on the topic and understanding the City's needs, shall briefly discuss whether or not an MER plant is the most appropriate type of facility to increase the City's sewer disposal capacity; or if other treatment methods should be considered. The Consultant shall briefly summarize their fmdings in the report should the construction of a treatment facility be their recommendation, stating that either the City is correct in analyzing an MER plant as the best available option, or recommend an alternative treatment method with specific reasons as to why such an option would provide a better alternative for the City of Chula Vista than an MER facility. Task 7 -Meetings and Public Outreach The Consultant shall assume the following meetings are required: A) One two-hour kickoff meeting 'With City and Ota)' WD staff to review the eXlstmg reports and data being provided to the Consultant, and to ensure understanding of the desired scope of work. ,:' B) Two two-hour workshops with City and Otay WD staff to review Consultant's draft report, matrix of options, and recommendations. C) One two-hour workshop with City of Chula Vista Council members. D) One two-hour workshop \.vith Otay WD Board of Directors. E) One City of Chula Vista Council meeting. F) One Otay WD Board of Directors Meeting. The Consultant and the City along with Otay WD may recommend additional meetings that they deem necessary to facilitate the achievement of the project goals and objectives. In addition to the meetings described above, the Consultant will be expected to hold one community meeting to introduce the concept of a Chula Vista wastewater reclamation facility, obtaining the general public's opinion of the idea and any concerns they may have. The Consultant will be expected to facilitate the meeting with assistance from City and Otay WD staff at a location to be determined and provided by the City of Chula Vista. Task 8 - Deliverables A) Deliverables shall include an outline. of the Consultants' report (Technical Memorandum) and Final Report. 5-37 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 8 of 9 B) A progress report (one page bullet item summary of activities initiated, on-going, and/or completed during the period) shall be included with the Consultant's monthly mVOlce. Task 9 - Schedule The Consultant shall be allowed six weeks from receipt of the Notice to Proceed and receipt of all background data shown in Task I to complete the Technical Memorandum, and two weeks after the City and Otay WD review comments have been received to complete the fmal draft of the Technical Memorandum. The Consultant shall allow two weeks each for the agencies reviews of draft reports. By the time the Technical Memorandum is completed and approved by the City and Otay WD, the Consultant shall establish a schedule for the delivery of the Pinal Report acceptable to the Consultant, the City, and Otay WD. Said schedule shall not exceed 9 months from the notice to proceed. Optional Tasks Consultant shall prepare individual cost estimates for the optional tasks described below. These tasks are optional in that the City and Otay WD mayor may not decide to ask the Consultant to perform the work. A) Preparing a Grant Appli.;;ation. - The Consultant selected for the project may be asked to prepare a grant application seeking funding from appropriate sources for either or all of the planning, design, and/or construction of a wastewater reclamation facility. B) The Consultant selected may be asked to provide an analysis of a San Diego County Water Authority study regarding a regional brine line to determine potential project cost savings for utilizing such a regional facility for disposal of excess recycled water produced. Said analysis would be needed for each potential project site and account for the improvements required to connect the reclamation facility to the proposed brine line. C) Por companies or project teams that provide operation and facility financing services under "design-build-operate-fmance" agreements or other such public-private partnerships: Evaluate the different facilities described in Task 2A over a 20-year and 30-year period, comparing the costs the City would incur under a traditional design- build process (with the City operating the facility) versus a public-private partnership (with funding and facility operation cOl11ing from private entities). Provide detailed information regarding the manner in which such a partnership would work. D) Identify large potential recycled water customers in Chula Vista west of 1-805 (such as the San Diego Country Club), estimate the volume of recycled water they might consume throughout the year, and determine the costs associated with building the infrastructure necessary to deliver recycled water from the reclamation plant to each. Firm Qualification Submittal Requirements: 5-38 City of Chula Vista Sewage Treatment Capacity Acquisition Request for Proposals Page 9 of 9 Interested applicants are requested to submit a sununary of their qualifications. The statements shall be concise and not exceed a total of 15 pages two-sided or 30 pages one-sided inclusive of all appendices with narrative font size no smaller than lO. The statement shall include the following: 1. General description of the consulting firm with the name, address, contact number, along with the firm's expertise, qualifications, and involvement in this type of consulting. 2. The ofiice location of the principal consultant who will be providing the services. 3. Overall understanding of the scope of work and identification of unique characteristics of this proj ect. 4. Record of completed similar work or projects within the last five years with a comparable magnitude in size, scope of work, and include references and contact information. 5. List of specific experience demonstrating a complete understanding ofMBR systems and other treatment options, including their design, capital, and operating costs. 6. List of each key member of.theteamas'viell as any sub-consultant's team to be utilized on this project along with individual staff s qualifications and recent experience within the past five years in similar projects with your firm that has been completed and/or is under construction. 7. List the name of the Project Manager, who will be the City's contact and hislher ofiice location during the term of the contract. The selection process will be limited to the most qualified firms. In order to be considered, a firm's qualifications must include special knowledge of MBR technology along with associated design, capital, and operational costs. Additional consideration may be given to firms that have completed design projects using MER technology or have a record of success on similar work for research and/or design of wastewater reclamation facilities. The Selection Advisory Conunittee will evaluate the statements and then reconunend the top three to five most qualified firms to continue in the RFP evaluation process. The City and Otay WD staff shall consist of the selection team. J:\Engincer\SEWER\TREATh1ENT PLANT\09 Feasibility Srudy\..'IvlBR Consultant Services RFP.doc 5-39 CITY COUNCIL AGENDA STATEMENT '~:J;, ~ \ 'f:.. CITY OF ~ (HULA VISTA 9/01/09, Item L ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORlZING THE SUBMITTAL OF APPLICAnON(S) TO THE CALIFORt'lIA INTEGRATED WASTE MA.NAGEMENT BOARD FOR ALL ELIGrBLE USED OIL AND HOUSEHOLD HAZARDOUS WASTE GRANTS THROUGH JUNE 30, 2012 AND AUTHORIZING AND EMPOWERING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO SECURE USED OIL Ai'\fD HOUSEHOLD HAZARDOUS WASTE GRANT FUNDS AND IMPLEMENT THE APPROVEDflRA T PROJECTS . DIRECTOR OF PUBLIC WORK. . . CITY MANAGER -c?- '5 J ASSIST ANT CITY MANAGER S r 4/STHS VOTE: YES 0 NO ['g] SUBMITTED BY: REVIEWED BY: SUMMARY The California Used Oil Enhancement Act (1999) requires the collection of four cents for every quart of lubricating oil sold, transferred and imported into California from oil manufacturers. All California consumers pay four cents per quart into the fund when they purchase oil. The Act mandates that the California Integrated Waste Management Board (CIWMB) use a portion of the funds to provide block grants to local governments for used oil programs that encourage used oil and oil filter recycling. Additionally, Assembly Bill 1220 provides grants to local government to establish and implement waste diversion and separation programs to prevent disposal of hazardous waste, including household hazardous waste in landfills (HHW grants). Per grant application procedures, Council must authorize the submittal of the grant application(s) and authorize and empower the City Manager or designee to execute all grant documents necessary to secure grants funds and implement approved projects. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed ordinance for compliance with the California Environmental Quality Act (CEQA) and has determined that the proposal 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. (p -I 9/01/09, ItemL Page 2 of 3 RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION The California Oil Recycling Enhancement Act provides funds to cilles and counties for establishing and maintaining local used oil collection programs that encourage recycling and appropriate disposal of used oil (Used Oil Grants). The program targets regional watershed protection issues that affect all the cities that share watershed areas. The primary purpose of the used oil block grant is to provide alternatives to illegal disposal of used motor oil through a network of collection opportunities and outreach efforts designed to inform and motivate the public to recycle used oil. The public education component will allow the City to continue to provide advertising, portable displays, point of purchase displays, the Used Oil Hotline, billing inserts, bottles and funnels or drain pans. This will also allow staff to have booths at the various car shows, public events and auto part stores throughout the region, reaching out to our target audience the "Do It Y ourselfers" (DIY ers). Chula Vista is the lead agency for this regional project. This grant will provide continued technical assistance and new supplies for free used oil recycling drop-off centers and other collection programs in Chula Vista, National City, Imperial Beach, Lemon Grove, Santee, La Mesa, and El Cajon. Letters of Support from these partner jurisdictions are attached. Additionally, the State has grants available for local governments to establish and implement waste diversion and separation programs to prevent disposal of hazardous waste, including household hazardous waste, in solid waste landfills as described in Assembly Bill 1220 and the Public Resources Code sections 40000 et seq. Chula Vista is the lead agency for the South Bay Regional Household Hazardous Waste Facility, which services the communities of National City, Imperial Beach, Chula Vista, and the County of San Diego. Given the frequency and short turnaround time for the grant application processes and that grant procedures require authorization of the application submittal as well as the execution of all grant documents, staff is recommending that Council once again authorize the submittal of applications for Used Oil and Household Hazardous Waste grants for a five year period, from the time the resolution is adopted through June 30, 2012. The previous resolution expired June 30, 2009. Included in the recommended action is the authorization and empowerment of the City Manager or designee to execute all grant documents necessary to secure used oil and household hazardous waste grant funds and implement the approved grant projects. When awarded grant funds staff &,-A 9/01/09, Item~ Page 3 of 3 will return to Council to appropriate those funds and amend the budgets for the effected fiscal year. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section 18704.2(a)(1) is not applicable to this decision. CURRENT YEAR FISCAL IMPACT There is no current year fiscal impact as the City will be reimbursed for all costs associated with public education, advertising, portable displays, billing inserts, bottles and funnels, drain pans, etc. and other recycling activities from various Used Oil and Household Hazardous Waste Grants. ONGOING FISCAL IMPACT There is no ongoing fiscal impact as the cost associated with public education, advertising, portable displays, billing inserts, bottles and funnels, drain pans, etc. and other recycling activities will cease after the funding from the Used Oil and Household Hazardous Waste Grants has been exhausted. ATTACHMENT I. Letters of Support from the partneringjurisdictions. Prepared by: Lynll France, Environmental Services Program Manager, Public Works Department \\citywide2000\shared\PUBLlC WORKSlAGENDAICAS2009\09-0f-09\UBG/5 application sign-author .doc 6-3 ATTACHMENT I The City of Imperial Beach (619) 423-8311 (619) 429-4861 Fax PUBLIC WORKS 825 IMPERIAL BEACH BOULEVARD . IMPERIAL BEACH, CALIFORNIA 91932 July. 14, 2009 Attn; Jo Glenn California Integrated Waste Mauagement Board Financial Assistance Division, MS 9A P.O. Box 4025 Sacramento, CA 95812~4025 Re; Letter of Authorization, FY 2009-010 Used Oil Block Grant Program (Cycle 15) Dear Ms. Glenn; The City ofImperial Beach authorizes the City of Chula Vista to submit a regional application to the California Integrated Waste Management Board for the Used Oil Recycling B.lock Grant #15, Fiscal Year 2009-10 on its behalf. The City of Clm]a Vista is hereby authorized and empowered to act as lead jurisdiction on oUr behalf, and to execute all grant documents necessary to secure grant funds and implement the approved grant program. ~ Peter Lau Acting Public Works Director City oflmperinl Beach cc. Gary Brown Lynn France, City ofChula Vista 6 -t.( '" '. ..... ..~LA6MESA ":":"~::'~'~' t..I.... ~~~~ofthI)H'L~.: .:' ': " " .... SANDRAL:KERL " ' : ,C'ITy,.iANAG'~R ",,:,' " . ,. ..' ....'. ., ,', ;Juiy 27, 2009" 'Ct .;-, ...i .' ," . ., "~()rkYMau ",,':' ',,", '..Branch Manager, GrantahdLoan Resour.ces , ',California InlegraledWasle, Ma,nagementI36ard .1'001 .:I Street '.~:: '. '. ",~ " 'P.O:, 80x4025 . Sacramento, CA 9q812-4025 " '. ~1 " . .... t' . " "R~: Letter 'Of Au;h~riza,tion,~Y2009-1 0 Vs~d' OiLBio'ck G~a~tPf6gr~m (Cycle 15) , : ,,' " ,:. . "", . I" .:.".., '" ;', :... __.' ^,..: '-.' . . . , ' . :.: ' . 'n. . .~. '.n:.. ..,.:,~ ,,:.. .:' , :. , ' .. :"':. ,....~.. 'c' ':',' " .PeafMs. Mall: ' ,'. ,.' . '," .:".. ", ."., " The City of LaMesaal.lthoriies the City ofChula Visl<3 tpsubmit aregiol'1ai aRPlication, " '. '" ,': ac;tingas lead juri~pictidn ori'qur behalf, to the C;a.!ifofiiia 1l1tegrated WaS!e:fVlanagement , BoiMfor the FY2Q09-1 0, Used Oil Block Gr?nt Program (Cy~le, 15) funding, :':' " .: ..: ' " ...... ....!,.... \ .:' " .,' ',:' -. ":, .-;'.' :....:::- ':1" .... ":.:' .,;::::','-":;' (',': .;" , ,,'Iriad~ition,the City 9f La M~sa authoriz~$ the City ()f Ghula VIsta toe,xecu'teallgrant ,', , 'documents necessarytQ secure grarilfundsaridto implement the approved grant " ',' , . '. '.. . ,~.' .' " '.: ": '. , . '.. '..'. ~. .,..:' ..,. ." " . '.' "" . . . . prqgr,afl'i, , , .. " " :.' , , ": andra L. K~rl City Manager ~M. .. ' '.-' . ~ :'. . : '. ,,' , ',81~OALLlSONAVE.NUE . ., tA MESA,CA 9194 j. . ,. .~-6' '. ..... , ,TEL: 6i9;667.110s' "FAX: 619.462.7528: '.'. !., . CITY OF EL CAJON PUBLIC WORKS DEPARTMENT July 27, 2009. California Integrated Waste. . Management Board Attn: Jo Glenn , Financial Assistance Division, MS 9A Used Oil Recycling Block Grant FY 2009/10 (15th Cycle) P.O. Box4025 Sacramento, CA 95812-4025 RE: Letter of Authorization, FY 2009-10 Used Oil Block Grant Program (Cycle 15) Dear CIWMB: The City of EI Cajon .authorizes the City of Chula Vista to submit to the California Integrated Waste Management Board a regional application for the fiscal year 2009-10 Used Oil Block Grant Program (Cycle 15) on its behalf. The City of Chula Vista is hereby authorized and empowered to execute all grant documents necessary to secure grant funds and implement the approved grant project. Sincerely, ~ T \Iv---' Rob Turner Deputy City Manager Director of Public Works/City Engineer 200 E. MAIN STREET. EL CAJON. CA 92020-3996 . TEL: (619) 441-1653 . FAX: (619) 579-5254 "dilled all r,,~yclf:ll paper, /_ . . , {p-ep CITY COUNCiL Jack E. Dille Brian W. Jones John W. Mimo Hal Ryan CITY OF SANTEE MAYOR Rnndy Voepe.l CIT>' MANAGER Keith TlII July i 6, 2009 (,.:{: California Integrated Waste Management Board Attn: Jo Glenn Financial Assistance Division, MS 9A Used Oil Recycling Block Grant FY 2009/iO (15th Cycle) P.O. Box 4025. Sacramento, CA 95812-4025 RE: letter of Authorization, FY 2009-10 Used Oli Block Grant Program (Cycle 15) Dear CIWMB: The City otSantee authorizes the City of Chula Vista to submit to the California Integrated Waste Management Board a regional application for the fiscal year 2009-1 0 Used Oil Block Grant Program (Cycle 15) on its behalf for the purposes of public outreach, the Inspection of each jurisdictions certified centers, and grant administration. The City of Chula Vista is hereby authorized and empowered to execute all grant documents necessary to secure grant funds and implement the approved grant project. 7b~ KEITH Till City Manager 10601 Magnolia Avenue . Santee, California 92071 . (619) 258-4100 . www.ci.santee.ca.us <"Prinr~lonrecydcdpapcr ,(p-7 NAT~~~i&;~~f.~ .,..,....01'>1')..'. .,~~ 12 ...~.:.u"""".u..:'=".. L..' ~N~o~,O'~AT~"...J CITY OF NATIONAL CITY PUBLIC WORKS DEPARTMENT 2100 HOOVER A VENUE, NATIONAL CITY, CA 91950 TEL: 619/336-4580 FAX: 619/336-4594 July 14. 2009 California Integrated Waste Management'Board.' Attn: Jo Glenn Financial Assistance Division, MS 9A Used Oil. Recycling Block Grant FY 2009/10 (15th Cycle) P.O.'Box 4025 Sacramento, CA 95812.4025 RE: Letter of Authorization, FY 2009.10 Used Oil Block Grant Program (Cycle 15) Dear CIWMB: The City of National City authorizes the City of Chula Vista to submit to the California Integrated Waste Management Board a regional application for the fiscal year 2009-10 Used Oil Block Grant Program (Cycle 15) on its behalf. The City of Chula Vista is hereby authorized to execute all grant documents necessary to secure grant funds and implement the approved grant project. Sincerely. a'/\ ( '" . J c Smith Public Works Director : - ~13 CITY OF LEMON GROVE "Best Climate On Earfh" Office of the City Manager July 13, 2009 California Integrated Waste Management Board Altn: Jo Glenn Financial Assistance Division, MS 9A Used Oil Recycilng Block Grant FY 2009/10 (15th Cycle) P.O. .Box 4025 .......... Sacramento, CA 95812-4025 RE: Letter of Authorization, FY 2009-10 Used Oil Block Grant Program (Cycle 15) .Dear CIWMB: The City of Lemon Grove hereby authorizes the City of Chula VIsta to submit a regional application to the California Integrated Waste Management Board for the FY 09-10 Used Oil Block Grant Program (Cycle 15) on its behalf. The City of Chula Vista is hereby authorized and empowered to execute ail grant documents necessary to secure grant funds and implement the approved grant project. SiO~ G~-- \ Graham Mitchell, City Manager 3232 Main Street Lemon Grove CalifornIa 91945.1705 619.825.3800 fAX: 619.825.3804 www.c1.lemon-grove.ca,us '-1 o RESOLUTION 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE SUBMITTAL OF APPLICATION(S) TO THE CALIFORt"lIA INTEGRATED WASTE MANAGEMENT BOARD FOR ALL ELIGIBLE USED OIL AND HOUSEHOLD HAZARDOUS WASTE GRANTS THROUGH JUNE 30, 2012 AND AUTHORIZING AND EMPOWERING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE ALL GRANT DOCUMENTS NECESSARY TO SECURE USED OIL AND HOUSEHOLD HAZARDOUS WASTE GRAND FUNDS AND IMPLEMENT THE APPROVED GRANT PROJECTS WHEREAS, the people of the State of California have enacted the California Oil Recycling Enhancement Act, which provides grant funds to cities and counties for establishing and maintaining local used oil collection programs that encourage recycling or appropriate disposal of used oil ("Used Oil Grants"); and WHEREAS, the people of the State of California have enacted Assembly Bill 1220 that provides grants to local governments to establish and irnplement waste diversion and separation programs to prevent disposal of hazardous waste, including household hazardous waste, in solid waste landfills ("HHW Grants"); and WHEREAS, Public Resources Code sections 40000 et seq. authorize the California Integrated Waste Management Board (CIWMB) to administer various grant programs in furtherance of the State of California's (State) efforts to reduce, recycle and reuse solid waste generated in the State thereby preserving landfill capacity and protecting public health and safety and the environment; and WHEREAS, in furtherance of this authority the CIWMB is required to establish procedures governing the application, awarding, and management ofthe grants; and WHEREAS, grant application procedures require an applicants' governing body to authorize by resolution its approval for submittal of the grant application(s) identified below, and the designation by job title of the individual authorized to execute all grant documents on behalf of the City of Chula Vista: and WHEREAS, if awarded, the City of Chula Vista will enter into a grant agreement with the CIWMB for implementation of said grant(s). NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista authorizes the submittal of application(s) to the CIWMB for all used oil and household hazardous waste grants for which Chula Vista is eligible. 1 tp"-/O BE IT FURTHER RESOLVED that the City Manager or his designee is hereby authorized and empowered to execute in the name of the City of Chula Vista all grant documents, including but not limited to, applications, agreement, amendments and requests for payment, necessary to secure grant funds and implement the approved grant project(s). Presented by Approved as to form by .///--- ..... .---- <... L. --- ---- . .?- ~ Bart Miesfeld 1> :1' '1 City Attorney Richard A. Hopkins Director of Public Works 0-1/ CITY COUNCIL AGENDA STATEMENT ~\~ C1TYOF ~ (HUlA VISTA ITEM TITLE: SUBMITTED BY: REVIEWED BY: SUlVIMARY 9/1/09, Itern~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AWARDING A PURCHASE AGREEMENT L'i THE AiV10UNT OF $109,174 TO ACTION TURBO REPAIR ($64,082), VALLEY POWER SYSTEMS ($'15,082) Al'-.'D IRONNIAN . Y ($30,010) TO INSTALL EMISSION1RETROFITS ON EIGHT CITY VEHICLES DIRECTOR OF PUBLIC WORKS ( CITY MANAGER 6-z- 5> ~ , ASSISTAi'iT CITY MANAGER S r 4/STHS VOTE: YES D NO ~ By state regulation, the City must retrofit a certain number of diesel-powered tnlcks with exhaust emissions devices each year. The number of retrofits IS determined by fonuula in the regulations. For Fiscal Year 2009/1 0, eight vehicles must be retrofitted with exhaust emissions devices. Quotes were soltcited by Purchasing to provide all labor and materials necessary to perfonu the specified work. The bid was advertised electromcally on Planet Bids and requests were also sent to A-Z Bus and Dion International Tmcks. Three vendors responded to the bld request. Staff recommends that Action Turbo Repair, Valley Power Systems and Ironman be awarded the contracts as the low bidders for certain vehicle types. ENVIRONMENTAL REVIEW Not applicable. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOiVIMENDA TION Not applicable. 7-1 9/1109, Item2 Page 2 of 2 DISCUSSION The California Air Resources Board has developed many programs to reduce emissions from mobile and stationary sources. One such program applies to diesel powered on-road vehicles owned and operated by municipalities. Compliance with the terms of the regulations that apply to diesel powered on-road vehicles began in 2007, and must be completed by the end of 2011. Each year a certain percentage of applicable vehicles must be retrofitted with verified exhaust emissions devices, the number being determined by formula in the regulations. By December of 2009, eight City vehicles must be retrofitted with exhaust emissions devices. The following table provides a summary of the low bids received by vendor. Original bid submittals are available in the Purchasing Agent's office. Vendor Bid Amount Valley Power System SI5,082(') Action Turbo Reo air SI8,668,L) Ironman S30,01O(J) Action Turbo Reo air $45,414(4) TOTAL 5109,174 (1) Retrofit for a Sewer Vactor Truck (2) Retrofits for 2 Tree-Trimming Aerial Trucks (3) Retrofits for 2 Traffic Signal Aerial Trucks (4) Retrofits for 2 Street StriDing Trucks & a Crane Truck SUMMARY OF BIDS Staff recommends that Action Turbo Repair, Valley Power Systems and Iroman be awarded the contracts. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section 18704.2(a)(I) is not applicable to this decision. CURRENT YEAR FISCAL IMP ACT The net total cost including taxes is $109,174. Sufficient funds have been budgeted in Central Garage (579,010) and the Sewer Fund ($30,164) for these retrofits. ONGOING FISCAL IMPACT The ongoing fiscal impact for eight retrofits is 53,600 annually for ongoing maintenance and certification as required by State Regulations. A TT ACHMENTS None. Prepared by: Steve Dorsey, Fleet lvfanager, Public Works K IPUBLIC WORKSIAGENDAICAS2009\09-01-09\Exhaust Emissions Devices. doc 7-2 RESOLUTION 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AWARDING A PURCHASE AGREEMENT IN THE AMOUNT OF $109,174 TO ACTION TURBO REPAIR ($64,082), VALLEY POWER SYSTEMS ($15,082) AND IRONMAN ($30,010) TO INSTALL EMISSION RETROFITS ON EIGHT CITY VEHICLES WHEREAS, by State regulation, the City must retrofit a certain number of diesel- powered trucks with exhaust emissions devices each year; and WHEREAS, the number ofretrofits is determined by formula in the regulations; and. WHEREAS, for Fiscal Year 2009/10, eight vehicles must be retrofitted with exhaust emissions devices; and WHEREAS, quotes were solicited by Purchasing to provide all labor and materials necessary to perform the specified work; and WHEREAS, the bid was advertised electronically on Planet Bids and requests were also sent to A-Z Bus and Dion International Trucks; and WHEREAS, the following table provides a summary of the low bids received by vendor; and Vendor Bid Amount Valley Power System $15,082(1) Action Turbo Repair $18,668'L) Ironman $30,0ION Action Turbo Repair $45,414(4) TOTAL $109,174 (1) Retrofit for a Scwer Vactor Truck (2) Retrofits for 2 Tree-Trimm ing Aerial Trucks (3) Retrofits for 2 Traftic Signal Aerial Trucks (4) Retrofits for 2 Street Striping Trucks & a Crane Truck WHEREAS, staff recommends that Action Turbo Repair, Valley Power Systems and Ironman be awarded the contracts. 7-3 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby award a Purchase Agreement in the amount of $109,174 to Action Turbo Repair ($64,082), Valley Power Systems ($15,082) and Ironman ($30,010) to install emission retrofits on Eight City vehicles. Presented by Approved as to form by ~~~~ Bart Miesfetd"'- i::. t PUrl( City Attorney Richard A. Hopkins Director of Public Works 7-4 CITY COUNCIL AGENDA STATEMENT ........:.., {t....;C1~..~w-'~" 09/01/2009 Item--L ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE CLOSURE OF RA.NCHO DEL REY PARKWAY BETWEEN TERRA NOVA DRIVE AND DEL REY BOULEVARD FOR THE 30TH ANNUAL ORANGE CRATE DERBY FROM 6:00 A.M. ON SATURDAY, SEPTEMBER 12,2009 UNTIL 6:00 P.M. ON SUNDAY, SEPTENfBER 13, 2009 AND APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND BONITA V ALLEY LIONS CLUB FOR THE DERBY SUBMITTED BY: REVIEWED BY: CHIEF OF POLIc0Js.} CITY MANAGER ~ '7 r 4/5THS VOTE: YES NO X SUMMARY The Bonita Orange Crate Derby Committee of the Bonita Valley Lions Club is requesting permission for temporary street closure on Rancho Del Rey Parkway on September 12th and 13th, 2009 to conduct their 30th Annual Orange Crate Derby. ENVIRONMENTAL REVIEW This proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEQA) and it has been determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change in the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION That Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not Applicable. DISCUSSION The Bonita Orange Crate Derby Committee (sponsor) is requesting permission to conduct the 30th Annual Orange Crate Derby on Saturday and Sunday, September 12th and 13th, 2009. The 8-1 09/01/2009, ItemL Page 2 of7 event would be conducted on the west section of Rancho Del Rey Parkway, between Terra Nova Drive to the north, and Del Rey Boulevard to the south. Both Terra Nova Drive and Del Rey Boulevard, as well as all other sections of Rancho Del Rey Parkway, would remain open to traffic at all times. Diagrams ofthe event are attached (Attachment "A"). This is a two day event with the street closed to all traffic from 6:00 AM Saturday, until 6:00 PM Sunday. The sponsor expects that approximately 150-200 youngsters, ages 7 to 13 years old, "driving" 75 separate derby cars, would be involved in the double elimination competition during the two day event. The derby cars are built by families, according to specifications provided by the sponsor. Each car is equipped with a steering wheel (steering capacity is limited to avoid "over-steering" by young drivers) and a friction-drag braking device. Each car is inspected to verify that safety equipment is in working order, and drivers are required to wear helmets, long pants, and sturdy shoes. The race course is approximately 1,000 feet in length, with no curves or turns. The entire course is separated with traffic safety cones. The use of cones serves two purposes; they delineate lanes, and also act as brakes if derby cars accidentally run over them. The run-out area below the finish line is also lined with traffic cones. Only two derby cars are permitted on the course at any one time. Spectator areas are designated and separated from the course by flag lines. The sponsor would be required to provide insurance, portable toilets, appropriate trash containers and trash control, necessary traffic barricades, cones, and directional signs, and overnight security (most cars will remain at the event site overnight). The event has been conducted in the Rancho Del Rey area for the past thirteen years. No significant problems with this event have been noted. The event would have very little impact on residents in the area, since all residential areas are fully accessible by alternate streets, and there are no homes on the race route. Approval ofthe request will be subject to the conditions listed in Attachment "B". DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. FISCAL IMPACT There is no fiscal impact to the City. The event sponsors will be responsible for all event costs. Any services provided by the City before, during, or after the event will be fully reimbursed by the sponsor. ONGOING FISCAL IMPACT There is no ongoing fiscal impact associated with this event. ATTACHMENTS "A" - General Site Plan "B" - Agreement Prepared by: Edward Chew, Administrative Services /I,{anager, Police Department 8-2 09/0112009, ltemL. Page 3 of7 ATTAClli\1ENT "A" General Site Plan Orange Crate Derby 8-3 09/0112009, Iteml Page 4 of7 ATTACHMENT "B" AGREEMENT Between the CITYOF CHULA VISTA, a California municipal corporation and BONIT A V ALLEY LIONS CLUB for 30rH ANNUAL ORAi"\lGE CRATE DERBY Recitals A. The Bonita Orange Crate Derby Committee of tbe Bonita Valley Lions Club will conduct its 30th Annual Orange Crat~ Derby on Saturday, September 12 and Sunday, September 13, 2009. B. The Bonita Orange Crate Derby Committee of tbe Bonita Valley Lions Club wishes to close Rancho Del Rey Parkway between Terra Nova Drive and Del Rey Boulevard.for this Special Event. Agreement 1. Bonita Valley Lions Club's Duties Bonita Valley Lions Club shall perform each of the duties described in Attachment A, attached to this Agreement and incorporated into this Agreement by this reference. 2. Term This Agreement is effective upon the execution of the Mayor and expires on September 14, 2009. 3. Termination of Agreement If Bonita Valley Lions Club fails to fulfill, in a timely and proper manner, any of Bonita Valley Lions Club s obligations or duties under this Agreement, or if Bonita Valley Lions Club violates any of the covenants, agreements or stipulations of this Agreement, City has the right to terminate this Agreement by giving at least one (I) day written notice to Bonita Valley Lions Club of the termination before the effective date ofthe termination. 4. Assignability Bonita Valley Lions Club shall not assign or transfer any interest in this Agreement without prior written consent of City. 5. Independent Contractor Bonita Valley Lions Club and any of the Bonita Valley Lions Club's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to 8-4 09/01/2009, ItemL Page 5 of7 which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. 6. Insurance Bonita Valley Lions Club represents that it and its staff and agents employed by it in connection with the Special Event are protected against the risk of loss by the insurance coverage outlined in Attachment A, Duties of Bonita Valley Lions Club, including naming the City, it officials, officers, agents, employees and volunteers as additional insured. 7. Hold Harmless Bonita Valley Lions Club agrees to defend, indemnify and hold harmless the City, its elected and appointed officials, officers, agents and employees pursuant to the Group/Organization Waiver and Release of Liability executed by Bonita Valley Lions Club. 8. Notices All notices to be given pursuant to this Agreement must be in writing. All notices to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the parties. 9. Entire Agreement/Amendments This Agreement, together with Attachment A, the Group/Organization Waiver and Release of Liability, and any other written document referred to or contemplated in this Agreement embody the entire Agreement and understanding between the parties. Neither this Agreement nor any attachment or provision may be amended or modified except in writing executed by each party to the Agreement. 10. Full Cost Recovery Bonita Valley Lions Club shall reimburse the City for all costs incurred by the City before, during, and after the Special Event. 11. Capacity of Parties Each signatory and party to this Agreement warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. 8-5 Dated: Attest: Donna Norris, CMC City Clerk Approved as to form: Bart Miesfeld City Attorney Dated: 8-6 City ofChula Vista By: 09/01/2009, ItemL Page 6 of? Cheryl Cox Mayor Bonita Valley Lions Club By: Alton Hooper Chairman - Orange Crate Derby 09/01/2009, Item~ Page 7 of? ATTACHi\1ENT "A" TO AGREEMENT Between the CITYOF CHULA VISTA, a California municipal corporation and BONITA V ALLEY LIONS CLUB for 30TH A1'mUAL ORANGE CRATE DERBY The Bonita Valley Lions Club's shall perform the following to the satisfaction of the Chief of Police: 1. Submit proof of insurance in the form of a Certificate of Insurance for $1 million Commercial General Liability insurance, or equivalent form, with a policy endorsement naming the City as additional insured, making their insurance primary with respect to the City's insurance and providing notification of cancellation.. 2. Provide, at its own expense, all necessary supplies and services required to safely conduct the event, including portable toilets, trash receptacles, trash control, crowd control, traffic control and traffic control equipment, signs and security, including overnight security. 3. Provide a fully refundable $250 cleaning/damage deposit. 4. Post applicable street closure signs and directional signs at least 48 hours in advance of the event. 5. Ensure that all participants, or their legal guardians, sign liability waivers approved by the City Attorney as to form. These waivers must indicate that the Bonita Valley Lions Club will indemnity and hold the City of Chula Vista harmless for any injury or loss of any kind in connection with the event. 6. Provide adequate supervision of event spectators and participants to prevent damage to City property and landscaping. 7. Provide adequate and sufficient street barricades and supervIsIon to insure that no vehicles are permitted into the event area throughout the duration of the event, including the overnight period. 8. Notify area residents, in writing, that the event is being held 48 hours prior to the event. 8-7 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE CLOSURE OF RANCHO DEL REY P ARKW A Y BETWEEN TERRA NOVA DRIVE AND DEL REY BOULEVARD FOR THE 30TH Ai'\!NUAL ORANGE CRATE DERBY FROM 6:00 A.M. ON SATURDAY, SEPTEMBER 12,2009 UNTIL 6:00 P.M. ON SUNDAY, SEPTEMBER 13, 2009 MID APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND BONITA V ALLEY LIONS CLUB FOR THE DERBY WHEREAS, the Bonita Orange Crate Derby committee of the Bonita Valley Lions Club is requesting permission for a temporary street closure on Rancho Del Rey Parkway on September 12th and 13th, 2009 to conduct their 30th Orange Crate Derby; and WHEREAS, the sponsors shall submit proof of insurance in the form of a Certificate of Insurance and Policy Endorsement for $1 million Commercial General liability insurance, or equivalent form, acceptable to the City, with a policy endorsement naming the City as additional insured, making their insurance primary with respect to the City's insurance and providing notification of cancellation; and 'WHEREAS, the sponsors shall provide a letter acceptable to the City Attorney in which they agree to defend, indemnify, release, protect and hold harmless, the City, its agents and employees from any and all liability arising from the Orange Crate Derby, excluding only that liability which may. arise from the sole negligence or sole willful conduct of the City; and WHEREAS, the sponsors shall provide, at their own expense, all necessary supplies and services required to safely conduct the event, including portable toilets, trash receptacles, trash control, crowd control, traffic control and traffic control equipment, signs, and security; and WHEREAS, the sponsor shall develop and implement a solid waste management plan approved by the Conservation Program to prevent litter, provide recycling, and disposal throughout the affected area during the event including arrangements for professional street sweeping immediately following the event; and WHEREAS, the sponsors shall provide a fully refundable $250 cleaning/damage deposit; and WHEREAS, the sponsors shall post applicable street closure SlgnS at least 48 hours in advance of the event; and 8-8 Page 2, Item: "" Meeting Date: 09/01/2009 WHEREAS, all event partIcIpants shall be required to sign liability waivers approved by the City Attorney as to form. These waivers must indicate that the City of Chula Vista will be indemnified and held harmless; and WHEREAS, the sponsors shall provide adequate supervision of event spectators and participants to prevent damage to City property and landscaping; and WHEREAS, the sponsors shall provide adequate and sufficient street barricades and supervision to insure that no vehicles are permitted into the event area throughout the duration ofthe event, including the overnight period; and WHEREAS, the sponsors shall notify area residents that the event is being held 48 hours prior to the event. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby authorizes temporary closure of Rancho Del Rey Parkway on September 12th and 13th, 2009 for the Orange Crate Derby subject to conditions as noted above. Presented by: Approved as to form by: c:~-=--(~- 'pfiI'U7'1 Bart Miesfeld City Attorney David Bejarano Police Chief 8-9 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL --/-? -..--., ~ .---' ...-:;.....---./ --- C L- ,:/- /' , Bart C. Miesfeld City Attorney D fP<-7'1 Dated: c?' /-z. o/d? r AGREEMENT BETWEEN CITY OF CHULA VISTA AND BONITA V ALLEY LIONS CLUB FOR 30TH ANNUAL ORANGE CRATE DERBY 8-10 09/01/2009, Itern_ Page 4 of7 ATTACHMENT "B" AGREEMENT Between the CITYOF CHULA VISTA, a California municipal corporation and BONITA VALLEY LIONS CLUB for 30THANNUAL ORANGE CRATE DERBY Recitals A. The Bonita Orange Crate Derby Committee of the Bonita Valley Lions Club will conduct its 30th Annual Orange Crate Derby on Saturday, September 12 and Sunday, September 13, 2009. B. The Bonita Orange Crate Derby Committee of the Bonita Valley Lions Club wishes to close Rancho Del Rey Parkway between Terra Nova Drive and Del Rey Boulevard for this Special Event. Agreement 1. Bonita Valley Lions Club's Duties Bonita Valley Lions Club shall perform each of the duties described in Attachment A, attached to this Agreement and incorporated into this Agreement by this reference. 2. Term This Agreement is effective upon the execution of the Mayor and expires on September 14, 2009. 3. Termination of Agreement If Bonita Valley Lions Club fails to fulfill, in a timely and proper manner, any of Bonita Valley Lions Club s obligations or duties under this Agreement, or if Bonita Valley Lions Club violates any of the covenants, agreements or stipulations of this Agreement, City has the right to terminate this Agreement by giving at least one (1) day written notice to Bonita Valley Lions Club of the termination before the effective date of the termination. 4. Assignability Bonita Valley Lions Club shall not assign or transfer any interest in this Agreement without prior written consent of City. 5. Independent Contractor Bonita Valley Lions Club and any of the Bonita Valley Lions Club's agents, employees or representatives are, for all purposes under this Agreement, independent contractors and shall not be deemed to be employees of City, and none of them shall be entitled to any benefits to 8-11 09/01/2009, Item_ Page 5 on which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. 6. Insurance Bonita Valley Lions Club represents that it and its staff and agents employed by it in connection with the Special Event are protected against the risk of loss by the insurance coverage outlined in Attachment A, Duties of Bonita Valley Lions Club, including naming the City, it officials, officers, agents, employees and volunteers as additional insured. 7. Hold Hannless Bonita Valley Lions Club agrees to defend, indemnify and hold harmless the City, its elected and appointed officials, officers, agents and employees pursuant to the Group/Organization Waiver and Release of Liability executed by Bonita Valley Lions Club. 8. Notices All notices to be given pursuant to this Agreement must be in writing. All notices to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement as the places of business for each of the parties. 9. Entire Agreement/Amendments This Agreement, together with Attachment A, the Group/Organization Waiver and Release of Liability, and any other written document referred to or contemplated in this Agreement embody the entire Agreement and understanding between the parties. Neither this Agreement nor any attachment or provision may be amended or modified except in writing executed by each party to the Agreement. 10. Full Cost Recovery Bonita Valley Lions Club shall reimburse the City for all costs incurred by the City before, during, and after the Special Event. 11. Capacity of Parties Each signatory and party to this Agreement warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. 8-12 Dated: Attest: Donna Norris, CMC City Clerk Approved as to form: Bart Miesfeld City Attorney Dated: 09/0112009, !tem_ Page 6 of7 City of Chula Vista By: Cheryl Cox Mayor Bonita Valley Lions Club By: Alton Hooper Chairman - Orange Crate Derby 8-13 09/0112009, !tem_ Page 70f7 ATTACHMENT "A" TO AGREEMENT Between the CITYOF CHULA VISTA, a California municipal corporation and . BONITA V ALLEY LIONS CLUB for 30TH ANNUAL ORANGE CRATE DERBY The Bonita Valley Lions Club's shall perform the following to the satisfaction of the Chief of Police: L Submit proof of insurance in the form of a Certificate of Insurance for $1 million Commercial General Liability insurance, or equivalent form, with a policy endorsement naming the City as additional insured, making their insurance primary with respect to the City's insurance and providing notification of cancellation. 2. Provide, at its own expense, all necessary supplies and services required to safely conduct the event, including portable toilets, trash receptacles, trash control, crowd control, traffic control and traffic control equipment, signs and security, including overnight security. 3. Provide a fully refundable $250 cleaning/damage deposit. 4. Post applicable street closure signs and directional signs at least 48 hours in advance of the event. 5. Ensure that all participants, or their legal guardians, sign liability waivers approved by the City Attorney as to form. These waivers must indicate that the Bonita Valley Lions Club will indemnity and hold the City of Chula Vista harmless for any injury or loss of any kind in connection with the event. 6. Provide adequate supervision of event spectators and participants to prevent damage to City property and landscaping. 7. Provide adequate and sufficient street barricades and supervIsIOn to insure that no vehicles are permitted into the event area throughout the duration of the event, including the overnight period. 8. Notify area residents, in writing, that the event is being held 48 hours prior to the event. 8-14 CITY COUNCIL AGENDA STATEMENT ITEM TITLE: SUBMITTED BY: IZEVIEWED BY 09/01/2009 Item 1 RESOLUTrON OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A TEMPORARY STREET CLOSURE OF PARK WAY FROM THIRD TO FOURTH AVENUES FOR THE PARI( VIEW LITTLE LEAGUE HOMECOMING CELEBRATiON FROM 300 P.M TO 8 PM ON FRIDAY. SEPTEMBER 4, 2009. COMMUNICATIONS COORDINATO~ CITY tvlANAGER if'- s 7" 4/STHS VOTE YES NO X SUi\IIVlARY The CIty of Chula Vista IS hosting a Homecoming Celebration for Park View LIttle League team to honor their accomplishments In the 20()9 little League World Series. The celebration will take plOlce at Memorwl Bowl, located at 373 Park Way. In order to prepare for the event, the City needs permission to temporarily close Park Way between 3"<1 Avenue and 4th from 3:00 p.m. to 8:110 p.m. on F,'iday, September 4,2009. ENVIRONMENTAL REVIEW This proposed activity has been reviewed for compliance with the Californw EnVIronmental Quality Act (CEQA) and it has been determined that the actIvity is not a "ProJect" as defIned under Section 15378 of the State CEQA Guidelines because it wdl not result In a phYSIcal change in the envIronment: therd'ore. pursuant to Section 15060(c)(3) of the State CEQ.'" Cuidelines. the Olctivitv IS not suhject to CEQA. Thus. no envIronmental review is necessary. RECOMMENDATION ThcII Counci I adopt the resolution. BOARDS / COMMISSION RECOMMENDATION Not Applicable. 9-1 09/01/2009, Item~ Page 2 of a. DISCUSSION The Cily IS preparing a homecomil1g celebration for the Park View Little League team to honor their accomplishments in the 2009 Little League World Series. In order to prepare for the event and clccc'mmQdate the expected crowds, the City needs permission for the temporary street closure l'{' Park Way from 3:00 p.m. to 8:00 p.m. from 3,,1 to 41h Avenues on Friday, September 4, 2(JD') The event will take place at Memorial Bowl located at 37J Park Way. Both 3nl and 4th A'enues \\ould remain open to traffic at all times. This event begins at 6:00 p.m. and is expected to conclude at 8:(ID p.m. Park Way would be immediately opened for traffic after the event CUlle lu\..k~. Escorted by a Chula Vista Police Department motorcade, the Little League team will board a Chula Vista Fire Department ladder truck for a short procession through western Chula Vista. The truck will depart the F Street Fire Station heading north on Fourth Avenue, turning right heading east on E Street and will proceed south down Third Avenue, and tuming right on Park Way. The procession will end at Memorial Park and Bowl at approximately 6:00 p.m. .'\l (,:I)r II' nl.. local dignitaries. Park View Little League team representatives and other special guests \\.ill h"'1\\1 the players with a brief recognition ceremony at Memorial Bowl. Expected crowd Size is approxll1lalclv 1,0DII to 2,000 people. The Chula Vista Police Department has been advised and will be onsite to regulate traffic and crowd control. The City's transit system will not be affected. The Transit Coordinator's staff bas agreed to the closure as long as ThIrd and Fourth Avenues remain 'passable tor traffic. Stafl'has reviewed the proper-ty holdlllgs of the City Council and has found no proper1y holdlllg \,ithIl1 51;11 I-eet ol-the boundaries or"the propertv which is the subject of this action. FISC\1. i~-IPACT There IS 110 11scal Illlpact to the City. The sponsors for the event have been secured and will cover all event costs. Any services provided by the City before, dUring, or after the event will be fully reimbursed by these funds. ONGOING FISCAL IMPACT There is nl) ongoing fiscal impact associated with thIS evellt. P!"l'jJIII'O/ hi 5::/l'p/illllic /\"/llgS/O!/, C01l111l1l1Iicu!{(JIIS CrJ()/"(!II/(//or, Otficr! (~lC()!IllJ1UJ1IC([t/(}//,l 9-2 RESOLUTION NO. 2009- RESOLUTION OF THE ClTY COUNCIL OF THE CITY OF CHULA ViSTA APPROVING A TEMPORARY STREET CLOSURE OF PARK WAY FROM THIRD TO FOURTH AVENUES FOR THE PARK VIEW LITTLE LEAGUE HOMECOMiNG CELEBRATION FROM 3:00 PM TO SOO PM ON FRIDAY, SEPTEMBER 4, 2009. WH EREAS, the City ]s preparing a homecoming celebration for the Park View Little League team to honor theil' accomplishments in the 2009 Little League World Series; and \VHEREAS. in order to prepare for the event and accommodate the expected nowds. the City needs permission r'or the temporary street closure of Park Way from ,1'00 p.m. to 8'00 p.m. from 3,,1 to 4th 1\ venues on Friday, September 4, 2009; and WHEREAS, the event will take place at Memonal Bowl iocated at 373 Park Way; ,-ll1d WHEREAS, both )"" and 4th Avenues would remain open to traffic at all tllnes, alld WHEREAS, tillS event begins at 6:00 p m. and IS expect to conclude at 8:00 p.m. P"rk Wav wOllld be Immediately opened for traffic after the event concludes; and WHEREAS, escorted by a Chul" Vista Police Department motorcade, the Little League team will board a Chula Vista Fire Department ladder truck for a short procession through western Chula Vista; and WH EREAS, the truck will depart the F Street FIre Station heading north on Fourth Avenue, tllming right heading east on E Street and wtll proceed south down Third Avenue, :lIld turning right on Park Way; and WHEREAS, the procession will end at Memonal Park and Bowl at approximately (l.OO p.m; and WHEREAS. at 6:UO pill.. local dignitaries, Park View Little League team representatives and other speCial guests will honor the players with a bnef recogl1ltioll ceremony at Memorial Bowl; and WHEREAS, the expected crowd size IS approximately 1,000 to 2,000 people; and WHEREAS, public safety and well being would be promoted by the alorel11entioned street closure; and 9-3 Page 2, Item: Meeting Date: 09/01/2009 WH EREAS, the Chul8 Vista Pol1ce Dep811ment h8ve been advised and will be onsite to regulate traffic and crowd control; and WHEREAS, the City's transit system will not be affected; and WHEREAS, the Transit Coordinator's staff has agreed to the closure as long as Third and Fomth Avenues rem8in passable for traffic. NOW, THEREFORE, BE IT RESOLVED th8t the City Council of the City of Chula Vista hereby authorizes the temporary closure of Park Way from Third Avenue to Fourth A venue on September 4, 2009 for a homecoming celebration for The Park View Little Le8gue from 3:00 p.m. to 8:00 p.m. subject to conditions as noted 8bove. Presented by: Approved as to fonn by: Sec)11 Tulloch /1,sslstalll City l'vl,mager ~ffi B8rt Miesfeld City Atlomey 9-4 ITEM #10 HAS BEEN PULLED FROM THE AGENDA CHULA VISTA HOUSING AUTHORITYij AGENDA STATEMENT ITEM TITLE: SUBMITTED BY: REVIEWED BY: SEPTEMBER 1. 2009, Item II > ~ RESOLUTION OF THE HOUSING AUTHORITY OF THE CITY OF CHULA VISTA APPROVING Ac'lD AUTHORIZING THE EXECUTION AND DELIVERY OF AMENDMENTS TO THE TRUST INDENTURE AND LOAN Ac"-iTI FIN.ANCING AGREEMENT OF THE CITY OF CHULA VISTA MULTIF~MILY HOUSING REVENUE BONDS (THE LANDINGS APARTMENTS), SERIES 2007C AND ANY DOCUMENTS N'ECESSARY TO CARRY OUT THE PURPOSES OF THIS RESOLYj7]9N DEPUTY CITY MANAGE~EVELOPMENT SERVICES DIRECTOR CITY MA.NAGERV <: r 4/STHS VOTE: YES D NO I X I SUMiV1ARY On December 28, 2007, the Housing Authority of the City of Chula Vista issued Multifamily Housing Revenue Bonds to fmance the development of an affordable 92-unit multifamily residential rental project, known as The Landings in Winding Walk, located at the intersection of Discovery Falls Drive and Crossroads Street in the City of Chula Vista. As a requirement of other financing obtained for The Landings through the State of California's Multifamily Housing Program, amendments to the Bonds are required at this time. ENVIRONMENT AL REVIEW The Environmental Review Coordinator has reviewed the proposed actIvIty for compliance with the California Environmental Quality Act (CEQA) and has determined that amendment of the loan and financing agreement and related documents is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; therefore, pursuant to Section l5060(c)(3) of the State CEQA Guidelines the actions proposed are not subject to CEQA. RECOMMENDATION The Housing Authority adopt the Resolution. 11-1 SEPTEMBER I, 2009, Item~ Page 2 of3 BOARDS/COMMISSION RECOM1'1ENDATION Not Applicable DISCUSSION On December 28, 2007, the Housing Authority of the City of Chula Vista (the "Authority") issued its Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (The Landings Apartments), Series 2007C in the aggregate principal amount of $16,670,000 (the "Bonds") for the purpose of fmancing the acquisition, and construction of The Landings at Winding Walk (the "Project"). The project is a 92-unit affordable multifamily residential rental project located at Discovery Falls Drive and Crossroads Street in the City of Chula Vista. It is owned and operated by CIC Landings, L.P., a California limited partnership (CIC). Financing and development of The Landings was a joint pnvate-public partnership. CIC used Tax Exempt Multi-Family Revenue Bonds, Low Income Housing Tax Credit financing, California Department of Housing and Community Development (HCD) Multifamily Housing Program (MHP) and City of Chula Vista HOME Investment Partnership (HOME) funds to support the majority of the costs of the Project. Construction of The Landings was completed in November 2008. Amendment to Bond Financing Documents At this time, CIC wishes to convert the Bonds to the Permanent Loan Period. In order to convert to the Permanent Loan, State HCD has requested certain amendments to the Trust Indenture and the Loan and Financing Agreement of the Bonds to, among other things, eliminate the Bond Purchaser's right to put the Bonds on or after December I, 2024 pursuant to Section 3.3(b)(ii) of the Indenture and grant the Bond Purchaser the right to remarket the Bonds on or after December I, 2024 pursuant to the terms and conditions set forth in the Indenture. Staff is recommending that a First Amendment to the Trust Indenture and a First Amendment to the Loan and Financing Agreement for the Bonds be approved to allow for the conversion to permanent loan financing for the Project. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. CURRENT YEAR FISCAL IMPACT Bond financing is a self-supporting program with the owner responsible for the payment of all costs of issuance and other costs and repayment of the bonds. All costs related to the issuance of the bonds will be paid for from bond proceeds or profits. The bonds will be secured by the project and will not constitute a liability to or obligation of the City or Housing Authority. 11-2 SEPTEMBER 1, 2009, Item~ Page 3 of 3 The City of Chula Vista Housing Authority received compensation for its services in preparing the bond issuance by charging an origination fee of 1/8 of 1 % of the bond loan. ONGOING FISCAL IMPACT Staff costs associated with monitoring compliance of the regulatory restnctlOns and administration of the outstanding bonds will be reimbursed from an annual administrative fee based upon 1/8 of 1 % of the permanent bond loan paid to the Housing Authority by the owner. ATTACHNIENTS 1. Locator Map 2. First Amendment to the Trust Indenture 3. First Amendment to the Loan and Financing Agreement Prepared by: Leilani Hines, Principal Project Coordinator, Development Services-Redevelopment & Housing 11-3 The Landings II at Winding Walk BIR01 R 11-4 Attachment 1 S R , , S E A S n. A K The landings I & /I 2122 Burdock Way FIRST AiVIEl'illMENT TO TRUST Il'.'DENTURE THIS FIRST AL\1ENDMENT TO TRUST INDENTURE (this "First Amendment") is made as of and shall be effective for all purposes as of the day of , 2009, by and between HOUSING AUTHORITY OF THE CITY OF CffilLA VISTA, a public body corporate and politic, duly organized and existing under the laws of the State of California (the "Issuer"), and U.S. BA-I'\il< NATIONAL ASSOCIATION, a national banking association, its successors and assigns (the "Trustee"), and is consented to by CIC GLEN RIDGE, L.P., a California limited partnership (the "Borrower"), MIJ1'I.1MAE PORTFOLIO SERVICES, LLC, a Maryland limited liability company (the "Servicing Agent"), EMBASSY & CO., as nominee for U.S. BANK TRUST NATIONAL ASSOCIATION, in its capacity as the registered owner of the hereinafter defmed Bonds (the "Bondholder"), and CHELSEA ASSET CORPORATION, a California corporation fi'k/a CHELSEA INVESTMENT CORPORATION, and CHELSEA INVESTMENT CORPORATION, a California corporation, in their capacities as Key Principal. RECIT ALS WHEREAS, pursuant to and in accordance with Chapter 1 of Part 2 of Division 24 of the California Health and Safety Code (as amended from time to time, the "Act"), and a Trust Indenture dated as of December 1,2007 between the Issuer and the Trustee, the Issuer previously issued its Multifamily Housing Revenue Bonds (The Landings Apartments) Series 2007C in the maximum principal amount of$I6,670,000 (the "Bonds"); WHEREAS, the proceeds of the Bonds have been used to fund a loan to the Borrower pursuant to a Loan and Financing Agreement dated as of December 1, 2007 (the "Original Financing Agreement") between the Issuer and the Borrower, in order to provide financing for the acquisition and construction of an approximately 92-unit multifamily residential rental apartment project located in Chula Vista, California (the "Project"); and WHEREAS, the parties to this First lunendment desire to amend the Indenture as hereinafter provided. NOW, THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the panies to this First Agreement hereby agree as follows: 1. IncOTDOratlOn of Recitals. The foregoing Recitals are incorporated in tbis First Amendment and made a part hereof by this reference to the same e;.,:tent as if set forth herein in full. All section references shall mean the corresponding section of the Indenture. 2. Definitions. All capitalized terms used herein shall have the meanings given such terms in the Recitals hereto or, if not defined therein, in Appendix I attached to the Indenture (as amended pursuant to Section 3 of this First Amendment). # 382055 011367-0292 11-5 3. Amendments. The Indenture is hereby amended as follows: (a) Section 3.3(b)(ii) of the Indenture is hereby deleted in its entirety. All references in the Indenture to Section 3.3(b )(ii) of the Indenture are hereby deleted and of no further force or effect. (b) Section 3.7 of the Indenture is hereby amended as follows: (i) following: . Paragraph (a) is deleted in its entirety and replaced with the "(a) The Borrower and the Holders of 100% of the outstanding principal amount of the Bonds shall each have the unilateral option to remarket the Bonds by providing Notice of such election to the Trustee, the Issuer, the Servicing Agent and, as applicable, the Borrower and the Holders. This initial election to cause the remarketing of the Bonds may only be made one time, by either the Borrower or the Holders of 100% of the outstanding principal amount of the Bonds (whichever shall make the election first). The date of the initial remarketing of the Bonds at the election of the Borrower or the Holders of 100% of the outstanding principal amount of the Bonds pursuant to the terms of this Section 3.7 (the "Initial Remarketing Date") shall be the first Business Day of any month occurring on or after December I, 2024. Not less than one hundred twenty (120) days prior to the Initial Remarketing Date and each ensuing Remarketing Date established in accordance with the terms of this Section 3.7, the Borrower (or, in the case of the Initial Remarketing Date following an initial election by the Holders of 100% of the outstanding principal amount of the Bonds, the Holders of the Bonds) shall give Notice to the Trustee, the Servicing Agent, the Holders, the Issuer, and, as applicable, the Borrower, of (i) the proposed Remarketing Date, and (ii) the election of the Borrower or the Holders of 100% of the outstanding principal amount of the Bonds to cause a remarketing of the Bonds to occur in accordance with the terms of this Section 3.7. Within fifteen (15) days of the provision by the Borrower or the Holders of 100% of the outstanding principal amount of the Bonds of the Notice required in the foregoing sentence, the Borrower shall provide to the Trustee, the Servicing Agent, the Holders, the Issuer, and the Remarketing Agent Notice of (i) appointment of a Remarketing Agent (who shall sa11sfy the criteria established in Section 9.19 hereof), (ii) the term of the Remarketing Period to be established by the Remarketing Agent, which shall be selected by the Borrower and may be any period of one (l) year or more (unless the Maturity Date for the Bonds is less than one year from such Remarketing Date) ending on the Maturity Date for the Bonds or an anniversary of the Remarketing Date, and (iii) the amortization terms elected by the Borrower to apply during the term of such Remarketing Period, which amortization terms shall not provide for any interest-only period and shall # 382055 011367-0292 2 11-6 # 382055 011 367-0292 require the amortization in full of the remaining principal amount of the Bonds on or prior to the Maturity Date." (ii) following: Paragraph (b) is deleted in its entirety and replaced with the "(b)(i) On or before the ninth (9th) Business day prior to each Remarketing Date, the Remarketing Agent, having due regard to prevailing financial market conditions, shall determine the minimum rate of interest per annum which, if the Bonds were amortized during the Remarketing Period elected by the Borrower under paragraph (a) of this Section 3.7 pursuant to the amortization schedule elected by the Borrower under paragraph (a) of this Section 3.7, would .enable the Remarketing Agent to remarket and sell the Bonds on such Remarketing Date for a price equal to 100% of the principal amount thereof, and such interest rate will, subject to the terms of Section 3.7(b)(ii) below, be the Remarketing Rate for such Remarketing Period and monthly payments of principal and interest will be made on the Bonds in accordance \.\~th the amortization schedule elected by the Borrower under paragraph (a) of this Section 3.7; provided that subject to the further restrictions of paragraph (ii) below, the Remarketing Rate shall not exceed the M<L'Cimum Rate. (ii) Not\.\ithstanding the provisions of Section 3.7(b)(i), in the event that the interest rate detennined by the Remarketing Agent pursuant to Section 3. 7(b )(i) is in excess of nine percent (9.0%) per annum, then (A) the Remarketing Agent, having due regard to prevailing fmancial market conditions, shall, on such day, detennine the longest Remarketing Period ending on any anniversary of such Remarketing Date, but on or before the Maturity Date, that would enable the Remarketing Agent to sell the Bonds for a price equal to 100% of the principal amount thereof with an interest rate of nine percent (9%) per armum and combined monthly payments of principal and intere'st made on the Bonds in accordance with an amortization schedule which amortizes the remaining principal balance of the Bonds in full at such interest rate over the remaining term of the Bonds, and such interest rate \\ill be the Remarketing Rate for such Remarketing Period, and payments on the Bonds will be made in accordance with such schedule, and (B) if no Remarketing Period would enable the Remarketing Agent .to sell the Bonds for a price equal to 100% of the principal amount thereof at a rate of interest not exceeding nine percent (9%) per annum, then (1) the Remarketing Rate shall be set at nine percent (9%) per annum for a Remarketing Period of one (1) year from such Remarketing Date, (2) the Holders shall, subject to their rights to transfer the Bonds in accordance with the terms of Article II of this Indenture, be required to retain such Bonds during such Remarketing Period, and (3) combined monthly payments of principal and interest shall be made on the Bonds during such Remarketing Period in accordance with an amortization schedule which amortizes the 3 11-7 remaining principal balance of the Bonds in full at such Remarketing Rate over the remaining term of the Bonds." (iii) Paragraph (e) is hereby deleted in its entirety. (c) Section 3.8 of the Indenture is hereby amended by deleting the text in paragraph (h) thereof and replacing such text with the following: "(h) Notwithstanding the foregoing provisions of Section 3.7 or this Section 3.8, in the event the interest rate determined by the Remarketing Agent pursuant to Section 3.7(b)(i) is in excess of nine percent (9.0%) per annum, then the provisions of Section 3.7(b)(ii) shall apply, the Bonds shall no longer be subj ect to mandatory tender by the Holders pursuant to the terms of this Section 3.8 and the terms and conditions of this Section 3.8 shall be null and void and shall no longer apply with respect to such Remarketing Date, and the Bonds shall, subject to the rights of the Holders to transfer the Bonds in accordance with the terms of Article II of this Indenture, continue to be held by the Holders for the duration of the Remarketing Period pursuant to the terms and conditions of Section 3.7(b)(ii) hereof." (d) All references in the Indenture to the remarketing of the Bonds at the election of.the Borrower pursuant to the terms of Sections 3.7 and 3.8 of the Indenture (including, but not limited to, Sections 3.3(e) and 9.19 of the Indenture) shall, to the extent appropriate in the context, be deemed to also refer to and apply to any remarketing of the Bonds at the election of the Holders of the Bonds pursuant to the terms of Sections 3.7 and 3.8 ofthe Indenture. 4. Ratification of Agreement. Except as set forth in this First Amendment, all the terms and conditions contained in the Indenture are hereby ratified and shall remain in full force and effect. In the event that any of the terms, conditions and provisions of this First Amendment shall conflict with any of the terms, conditions and provisions of the Indenture, then, and in such event, the terms, conditions and provisions of this First Amendment shall prevail and be controlling. Hereafter, all references to the Indenture shall mean the Indenture as amended by this First Amendment. 5. shall be Effective Date of First Amendment. The effective date of this First Amendment ,2009. 6. Countemarts. This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed to be a single instrument. 7. Applicable Law. This First Amendment shall be governed by the laws of the State of California. [Signature Page Follows] # 382055 011367-0292 4 11-8 IN WITNESS WHEREOF, and intending to be legally bound, tbe Issuer and tbe Trustee have caused this First Amendment to be executed on tbeir behalf by their duly autborized representatives as oftbe date set forth above. ISSUER: HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, CALIFORNIA By: James D. Sandoval, Executive Director TRUSTEE: U.S. BA..l'\!K. NATIONAL ASSOCIATION, as Trustee By: Name: Title: [SignalUre Page to First Amendment to Trust lndenture- continued on the following page] # 382055 011367-0292 11-9 CONSENT The undersigned hereby execute this First Amendment to evidence their approval of the terms of this First Amendment. BORROWER: CIC LANDINGS, L.P., a California limited partnership By: Ajax-Landings, LLC, a California limited liability company, its Administrative General Partner By: Chelsea Investment Corporation, a California corporation, its Manager By: James 1. Schmid, President By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Jaynes, Executive Director/President SERVICING AGENT: MlJNliYlA.E PORTFOLIO SERVICES, LLC By: Name: Title: [Signature Page to First Amendment to Trust Indenture- continued on the following page] # 382055 011367-0292 11-10 BONDHOLDER: EMBASSY & CO., as nominee for U.S. BAAl( TRUST NATIONAL ASSOCIA nON By: Name: Title: KEY PRINCIPAL: CHELSEA ASSET CORPORATION, a California corporation fi'kla Chelsea Investment Corporation By: James 1. Schmid, President CHELSEA INVESTMENT CORPORATION, a California corporation By: James 1. Schmid, President [Signature Page to First Amendment to Trust Indenture- continued fi'om the previous page] # 382055 011367-0292 11-11 FIRST AMENDMENT TO LOAJ'" M'D FINANCING AGREEMENT THIS FIRST AMENDWlENT TO LOAN MID FINANCING AGREEWlENT (this "First Amendment") is made as of and shall be effective for all purposes as of the _ day of ,2009, by and between HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, a public body corporate and politic, duly organized and existing under the laws of the State of California (the "Issuer"), and CIC LAi'lil)INGS, L.P., a California limited partnersillp (the "Borrower"), and is consented to by U.S. BA1'-'K NAnONAL ASSOCIATION, a national banking association, its successors and assigns (the "Trustee"), MUNli\1....\E PORTFOLIO SERVICES, LLC, a Maryland limited liability company (the "Servicing Agent"), EMBASSY & CO., as nominee for U.S. BANK TRUST NATIONAL ASSOCIATION, in its capacity as the registered owner of the hereinafter defmed Bonds (the "Bondholder"), and CHELSEA ASSET CORPORATION, a California corporation flkIa CHELSEA INVESTWlENT CORPORATION, and CHELSEA INVESTMENT CORPORAnON, a California corporation, in their capacities as Key Principal. RECITALS WHEREAS, pursuant to and in accordance with Chapter I of Part 2 of Division 24 of the California Health and Safety Code (as amended from time to time, the "Act"), and a Trust Indenture dated as of December 1,2007 between the Issuer and the Trustee, the Issuer previously issued its Multifamily Housing Revenue Bonds (The Landings Apartments) Series 2007C in the maximum principal amount of $16,670,000 (the "Bonds"); WHEREAS, the proceeds of the Bonds have been used to fund a loan to the Borrower pursuant to a Loan and Financing Agreement dated as of December I, 2007 (the "Financing Agreement") between the Issuer and the Borrower, in order to provide fmancing for the acquisition and construction of an approximately 92-unit multifamily residential rental apartment project located in Chula Vista, California (the "Project"); and WHEREAS, the parties to tills First Amendment desire to amend the Financing Agreement as hereinafter provided. NOW, THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of willch are hereby acknowledged, the parties to this First Agreement hereby agree as follows: I. Incorooration of Recitals, The foregoing Recitals are incorporated in this First Amendment and made a part hereof by this reference to the same extent as if set forth herein in full. Ail section references shall mean the corresponding section of the Financing Agreement. 2. Definitions. Ail capitalized terms used herein shall have the meanings given such terms in the Recitals hereto or, if not defmed therein, in Appendix I attached to the Financing Agreement (as amended pursuant to Section 3 of this First Amendment). # 382052 011367-0292 11-12 3. Amendments. All references in the Financing Agreement to the remarketing of the Bonds at the election of the Borrower pursuant to the terms of Sections 3.7 and 3.8 of the Indenture shall, to the extent appropriate in the context, be deemed to also refer to and apply to any remarketing of the Bonds at the election of the Holders of the Bonds pursuant to the terms of Sections 3.7 and 3.8 ofthe Indenture. 4. PaYment of Costs. The Borrower shall be responsible for the payment of all costs (including, without limitation, the reasonable legal fees of the Holders, the Servicing Agent, the Trustee and the Issuer, the fees of the Remarketing Agent, and all fInancing costs and commitment fees necessary in connection therewith) incurred in connection with any optional or mandatory remarketing of the Bonds pursuant to the terms of Sections 3.7 or 3.8 of the Indenture; provided, however, that in the event any such remarketing is initiated at the option of the Holders of the Bonds, then (a) the Holders of the Bonds shall be responsible for the payment of the fees of the Remarketing Agent and the fees of counsel to the Holders of the Bonds, (b) Ajax-Landings, LLC, as administrative general partner of the Borrower, and PacifIc Southwest Community Development Corporation, as managing general partner of the Borrower (collectively, the "General Partners"), shall, in lieu of the Borrower, be jointly and severally responsible for the payment of all other fees, costs and expenses otherwise payable by the Borrower under the terms of this Section 4, and (c) Chelsea Investment Corporation, a California corporation (the "Guarantor"), shall guarantee the payment in full by the General Partners of all fees, costs and expenses required to be paid by the General Partners under the terms of the foregoing clause (b). The Department of Housing and Community Development, a public agency of the State of California ("HCD") is an express third- party beneficiary of the terms of this Section 4. In providing the guaranty in clause (c) above, the Guarantor waives the rights of the Guarantor or any other surety to subrogation, reimbursement, inderrmification and contribution and any other rights and defenses that are or may become available to the Guarantor or any other surety by reasons of Sections 2787 to 2855, inclusive, of the California Code of Civil Procedure, and waives all rights and defenses arising out of an election of remedies by the Issuer, the Trustee or the Servicing Agent, even though that election of remedies has destroyed the Guarantor's rights of subrogation and reimbursement against the Borrower or the General Partner by the operation of Section 580d of the California Code of Civil Procedure or otherwise. IN EXECUTING THE CONSENT AT THE END OF THIS AMENDMENT, THE GENERAL PARTNERS AND THE GUARANTOR EXPRESSLY ACKNOWLEDGE AND AGREE TO BE BOUNTI BY THE TERMS OF, AND TO PERFOR.lv1 THEIR OBLIGATIONS UNDER, THIS SECTION 4. 5. RatifIcation of Agreement. Except as set forth in this First Amendment, all the terms and conditions contained in the Financing Agreement are hereby ratifIed and shall remain in full force and effect. In the event that any of the terms, conditions and provisions of this First .A.mendment shall conflict with any of the terms, conditions and provisions of the Financing Agreement, then, and in such event, the terms, conditions and provisions of this First Amendment shall prevail and be controlling. Hereafter, all references to the Financing Agreement shall mean the Financing Agreement as amended by this First Amendment. 6. shall be Effective Date of First Amendment. The effective date of this First Amendment ,2009. # 382052 011367-0292 2 11-13 7. Counterparts. This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed to be a single instrument. 8. ADDlicable Law. This First Amendment shall be governed by the laws of the State of California. [Signature Page Follows] # 382052 011367-0292 3 11-14 IN WITNESS WHEREOF, and intending to be legally bound, the Issuer and the Borrower have caused this First Amendment to be executed on their behalf by their duly authorized representatives as of the date set forth above. ISSUER: HOUSJNG AUTHORITY OF THE CITY OF CHlTLA, VISTA, CALIFOR..NLA. By: James D. Sandoval, Executive Director BORROWER: CIC LANDJNGS, L.P., a California limited partnership By: Ajax-Landings, LLC, a California limited liability company, its Administrative General Partner By: Chelsea Investment Corporation, a California corporation, its Manager By: James 1. Schmid, President By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Jaynes, Executive DirectorlPresident [Signature Page to First Amendment to Loan and Financing Agreement- continued on the following page] # 382052 011367-0292 11-15 CONSENT The undersigned hereby execute this First .Amendment to evidence their approval of the terms of this First Amendment. TRUSTEE: U.S. BA.l\,TK NATIONAL ASSOCIATION, as Trustee By: Name: Title: SERVICING AGENT: MUNil'vlA,E PORTFOLIO SERVICES, LLC By: Name: Title: [Signature Page to First Amendment to Loan and Financing Agreement- continued on the following page] # 382052 011367-0292 11-16 # 382052 011367-0292 BONDHOLDER: EMBASSY & CO., as nominee for U.S. BAl'lK TRUST NATIONAL ASSOClA. TION By: Name: Title: KEY PRlNCIP AL: CHELSEA ASSET CORPORATION, a California corporation fi'k/a Chelsea Investment Corporation By: James J. Schmid, President CHELSEA INVESTMENT CORPORATION, a California corporation By: James J. Schmid, President [Signature Page to First Amendment to Loan and Financing Agreement- continuedfrom the previous page] 11-17 HA RESOLUTION NUMBER RESOLUTION OF THE HOUSING AUTHORITY OF THE CITY OF CHULA VISTA APPROVING At"JD AUTHORIZLNG THE EXECUTION AND DELIVERY OF AMENDMENTS TO THE TRUST INDENTURE AND LOAt"J At'lD FINANCING AGREEMENT OF THE CITY OF CHULA VISTA MUL TIF AMIL Y HOUSING REVENUE BONDS (THE LANDINGS APARTMENTS), SERIES 2007C AND ANY DOCUMENTS NECESSARY TO CARRY OUT THE PURPOSES OF THIS RESOLUTION WHEREAS, on December 28,2007, pursuant to Chapter 1 of Part 2 of Division 24 of the California Health & Safety Code ("Housing Authorities Law"), the Housing Authority of the City of Chula Vista (the "Authority") issued its Housing Authority of the City of Chula Vista Multifamily Housing Revenue Bonds (The Landings Apartments), Series 2007C in the aggregate principal amount of $16,670,000 (the "Bonds") for the purpose of financing the acquisition, and construction of a 92-unit affordable multifamily residential rental project located at the intersection of Discovery Falls Drive and Crossroads Street in the City of Chula Vista (the "Project") to be owned and operated by CIC Landings, L.P., a California limited partnership (the "Borrowerll); and ' WHEREAS, the Bonds were issued pursuant to that certain Trust Indenture, dated as of December 1,2007, by and between the Authority and U.S. Bank National Association, as trustee (the "Indenture"); and WHEREAS, the Bonds were purchased by MMA Landings, LLC (the "Purchaser") in a private placement to the Purchaser. The proceeds of the Bonds were loaned to the Borrower pursuant to the terms of that certain Loan and Financing Agreement, dated as of December 1, 2007, by and between the Authority and the Borrower (the "Loan Agreement"); and WHEREAS, the Borrower used the proceeds of the Bonds loaned to it through the Loan Agreement to finance costs of the development of the Project; and WHEREAS, the Project has been completed and the Borrower wishes to convert the Bonds to the Permanent Loan Period (as defined in the Indenture) pursuant to terms and conditions of the Indenture, including but not limited to Section 3.4 thereof; and WHEREAS, in connection therewith, the California Department of Housing and Community Development (the "MI-IP Lender") has requested certain amendments to the Indenture and the Loan Agreement to, among other things, eliminate the Purchaser's right to put the Bonds on or after December 1,2024 pursuant to Section 3.3(b)(ii) of the Indenture and grant the Purchaser the right to remarket the Bonds on or after December 1, 2024 pursuant to the terms and conditions set forth in the Indenture; and DOCSOC/1359174v2/024036-0038 11-18 WHEREAS, there has been presented to the Board of Commissioners of the Housing Authority of the City of Chula Vista (the "Board") a proposed form of First Amendment to the Trust Indenture (the "First Amendment to the Trust Indenture") amending the Indenture and a proposed form of First Amendment to Loan and Financing Agreement (the "First Amendment to the Loan and Financing Agreement") amending the Loan Agreement. NOW, THEREFORE, BE IT RESOLVED, by the Board of Commissioners of the Housing Authority of the City of Chula Vista, as follows: Section 1. The form of First Amendment to the Trust Indenture is hereby approved in substantially the form presented to the Board, a copy of which is on file in the office of the Executive Director. Anyone of the Chair or Executive Director or any designee thereof (each, an "Authorized Officer") is authorized to execute, and the Secretary of the Authority is authorized to attest, the First Amendment to the Trust Indenture in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 3 hereof. Section 2. The form of First Amendment to the Loan and Financing Agreement is hereby approved in substantially the form presented to the Board, a copy of which is on file in the office of the Executive Director. Any Authorized Officer is authorized to execute, and the Secretary of the Authority is authorized to attest, the Financing Agreement, in substantially said form, with such additions thereto and changes therein as such Authorized Officer may approve or recommend in accordance with Section 3 hereof. Section 3. Any Authorized Officer executing a document approved herein, in consultation with General Counsel to the Authority and Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California, Bond Counsel, is authorized to approve and make such modifications, changes or additions to such document, including, but not limited to, the First Amendment to the Trust Indenture and the First Amendment to the Loan and Financing Agreement, or other document as may be necessary or advisable, and the approval of any modification, change or addition to any of the aforementioned agreements shall be evidenced conclusively by the execution and delivery thereof by such Authorized Officer. Section 4. The officers, employees and agents of the Authority are authorized and directed, for and in the name and on behalf of the Authority, to do any and all things and take any and all actions and execute and deliver any and all certificates, agreements, assignments and other documents which they, or any of them, may deem necessary or advisable in order to consummate the lawful execution and delivery of the First Amendment to the Trust Indenture and the First Amendment to the Loan and Financing and to effectuate the purposes thereof and of the documents herein approved in accordance with this resolution and resolutions heretofore adopted by the Board. In the event that the Secretary of the Authority is unavailable to sign the First Amendment to the Trust Indenture and the First Amendment to the Loan and Financing or any document related thereto, any Deputy Secretary of the Authority may sign on behalf of the Secretary. DOCSOC/1359174v2/024036-0038 11-19 Section 5. All prior resolutions or parts thereof in conflict with this resolution are, to the extent of such conflict, repealed. Section 6. If any section, paragraph or provision of this resolution shall be held to be invalid or lmenforceable for any reason, the invalidity or unenforeeability of such section, paragraph or provision shall not affect any remaining sections, paragraphs or provisions of this resolution. Section 7. This resolution shall take effect immediately upon its adoption. Presented by Approved as to form by: Gary Halbert Deputy City Services Director Manager/Development Ah~~ 4-e fort- Bart Miesfeld Housing Authority Attorney DOCSOC!l359174v2/024036-0038 11-20 THE A TT ACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPRO V AL BY THE CITY COUNCIL Az~A7V7 ~ h,y Bart C. Miesfeld City Attorney Dated: ql"25 !o~ I I First Amendment to Loan Financing Agreement between the Housing Authority of the City ofChula Vista and CIC Landings, L.P. 11-21 FIRST AMENDMENT TO LOAt~ AND FINAt~CING AGREEMENT THIS FIRST A.MENDMENT TO LOAN AND FINANCING AGREEMENT (this "First Amendment") is made as of and shall be effective for all pwposes as of the _ day of ,2009, by and between HOUSING AUTHORITY OF THE CITY OF CHULA VISTA, a public body corporate and politic, duly organized and existing under the laws of the State of California (the "Issuer"), and CIC LAt'iDINGS, L.P., a California limited partnership (the "Borrower"), and is consented to by U.S" BANK NATIONAL ASSOCIATION, a national banking association, its successors and assigns (the "Trustee"), MUNIMAE PORTFOLIO SERVICES, LLC, a Maryland limited liability company (the "Servicing Agent"), EMBASSY & CO., as nominee for U.S. BANK TRUST NATIONAL ASSOCIATION, in its capacity as the registered owner of the hereinafter defined Bonds (the "Bondholder"), and CHELSEA ASSET CORPORATION, a California corporation f7k/a CHELSEA INVESTMENT CORPORi\.TION, and CHELSEA INVESTMENT CORPORATION, a California corporation, in their capacities as Key Principal. RECITALS WHEREAS, pursuant to and in accordance with Chapter 1 of Part 2 of Division 24 of the California Health and Safety Code (as amended from time to time, the "Act"), and a Trust Indenture dated as of December 1, 2007 between the Issuer and the Trustee, the Issuer previously issued its Multifamily Housing Revenue Bonds (The Landings Apartments) Series 2007C in the maximum principal amount of$16,670,000 (the "Bonds"); WHEREAS, the proceeds of the Bonds have been used to fund a loan to the Borrower . pursuant to a Loan and Financing Agreement dated as of December 1, 2007 (the "Financing Agreement") between the Issuer and the Borrower, in order to provide fmancing for the acquisition and construction of an approximately 92-unit multifamily residential rental apartment project located in ChuIa Vista, California (the "Project"); and WHEREAS, the parties to this First Amendment desire to amend the Financing Agreement as hereinafter provided. NOW, THEREFORE, in consideration of the foregoing recitals, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this First Agreement hereby agree as follows: 1. Incomoration of Recitals. The foregoing Recitals are incorporated in this First Amendment and made a part hereof by this reference to the same extent as if set forth herein in full. All section references shall mean the corresponding section of the Financing Agreement. 2. Definitions. All capitalized terms used herein shall have the meanings given such terms in the Recitals hereto or, if not defmed therein, in Appendix I attached to the Financing Agreement (as amended pursuant to Section 3 of this First Amendment). # 382052 011367-0292 11-22 3. Amendments. All references in the Financing Agreement to the remarketing of the Bonds at the election of the Borrower pursuant to the terms of Sections 3.7 and 3.8 of the Indenture shall, to the extent appropriate in the context, be deemed to also refer to and apply to any remarketing of the Bonds at the election of the Holders of the Bonds pursuant to the terms of Sections 3.7 and 3.8 of the Indenture. 4. PaYment of Costs. The Borrower shall be responsible for the payment of all costs (including, without limitation, the reasonable legal fees of the Holders, the Servicing Agent, the Trustee and the Issuer, the fees of the Remarketing Agent, and all fmancing costs and commitment fees necessary in connection therewith) incurred in connection with any optional or mandatory remarketing of the Bonds pursuant to the terms of Sections 3.7 or 3.8 of the Indenture; provided, however, that in the event any such remarketing is initiated at the option of the Holders of the Bonds, then (a) the Holders of the Bonds shall be responsible for the payment of the fees of the Remarketing Agent and the fees of counsel to the Holders of the Bonds, (b) Ajax-Landings, LLC, as administrative general partner of the Borrower, and Pacific Southwest Community Development Corporation, as managing general partner of the Borrower (collectively, the "General Partners"), shall, in lieu of the Borrower, be jointly and severally responsible for the payment of all other fees, costs and expenses otherwise payable by the Borrower under the terms of this Section 4, and (c) Chelsea Investment Corporation, a California corporation (the "Guarantor"), shall guarantee the payment in full by the General Partners of all fees, costs and expenses required to be paid by the General Partners under the terms of the foregoing clause (b). The Department of Housing and Community Development, a public agency of the State of California ("HCD") is an express third- party beneficiary of the terms of this Section 4. In providing the guaranty in clause (c) above, the Guarantor waives the rights of the Guarantor or any other surety to subrogation, reimbursement, indemnification and contribution and any other rights and defenses that are or may become available to the Guarantor or any other surety by reasons of Sections 2787 to 2855, inclusive, of the California Code of Civil Procedure, and waives all rights and defenses arising out of an election of remedies by the Issuer, the Trustee or the Servicing Agent, even though that election of remedies has destroyed the Guarantor's rights of subrogation and reimbursement against the Borrower or the General Partner by the operation of Section 580d of the California Code of Civil Procedure or otherwise. IN EXECUTING THE CONSENT AT THE ENTI OF THIS AMENDMENT, THE GENERAL PARTNERS AND THE GUARANTOR EXPRESSLY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS OF, AND TO PERFORM THEIR OBLIGATIONS UNDER, THIS SECTION 4. 5. Ratification of Agreement. Except as set forth in this First Amendment, all the terms and conditions contained in the Financing Agreement are hereby ratified and shall remain in full force and effect. In the event that any of the terms, conditions and provisions of this First Amendment shall conflict with any of the terms, conditions and provisions of the Financing Agreement, then, and in such event, the terms, conditions and provisions of this First Amendment shall prevail and be controlling. Hereafter, all references to the Financing Agreement shall mean . the Financing Agreement as amended by this First Amendment. 6. shall be Effective Date of First Amendment. The effective date of this First Amendment ,2009. # 382052 011367-0292 2 11-23 7. Countemarts. Tbis First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed to be a single instrument. 8. Applicable Law. Tbis First Amendment shall be governed by the laws of the State of California. [Signature Page Follows] # 382052 011367-0292 3 11-24 IN WITNESS WHEREOF, and intending to be legally bound, the Issuer and the Borrower have caused this First Amendment to be executed on their behalf by their duly authorized representatives as of the date set forth above. ISSUER: HOUSING AUTHORITY OF THE CITY OF CHULA, VISTA, CALIFORNIA By: Name: Title: BORROWER: CIC LANDINGS, L.P., a California limited partnership By: Ajax-Landings, LLC, a California limited liability company, its Administrative General Partner By: Chelsea Corporation, a corporation, its Manager Investment California By: James 1. Schmid, President By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation, its Managing General Partner By: Jack K. Jaynes, Executive OirectorlPresident [Signature Page to First Amendment to Loan and Financing Agreement- continued on the following page] # 382052 011367-0292 11-25 CONSENt The undersigned hereby execute this First Amendment to evidence their approval of the terms of this First Amendment. TRUSTEE: U.S. BAAl( NA TlONAL ASSOCIA nON, as Trustee By: Name: Title: SERVICING AGENT: MUNIMAE PORTFOLIO SERVICES, LLC By: Name: Title: [Signature Page to First Amendment to Loan and Financing Agreement- continued on the following page] # 382052 011367-0292 11-26 # 382052 011367-0292 BO]\lTIHOLDER: EMBASSY & CO., as nominee for U.S. BAi"\JK TRUST NATIONAL ASSOClA TION By: Name: Title: KEY PRINCIPAL: CHELSEA ASSET CORPORATION, a California corporation :flk/a Chelsea Investment Corporation By: James J. Schmid, President CHELSEA INVESTMENT CORPORATION, a California corporation By: James J. Schrnid, President [Signature Page to First Amendment to Loan and Financing Agreement- continued from the previous page] 11-27 CITY COUNCIL AGENDA STATEMENT . ~\1f:. CITY OF '-~ (HULA VISTA SEPTEMBER I, 2009, Item 12 ITEM TITLE: PtJBLlC HEARING TO CONSIDER A.MENDING THE FISCAL YEAR 2008/2009 HUD ANNUAL ACTION PLAN SUBMITTED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE FISCAL YEAR 2008/2009 MNUAL ACTION PLAN OF THE NEIGHBORHOOD STABILIZATION PROGRAM (NSP) FUNDS TO EXPAND THE AREAS OF GREATEST NEED; ADD A NSP ELIGIBLE USE TO ACQUIRE, REHABILITATE, AND RESELL FORECLOSED OR ABANDONED PROPERTIES; AND AUTHORIZE THE REALLOCATION OF NSP F~S AS NECESSARY DEPUTY CITY MANAGEia1 DEVELOPMENT SERVICES DIRECTOR ..,- CITY MANAGER I- 7) 4/5THS VOTE: YES D NO 0 REVIEWED BY: SUMMARY The Chula Vista City Council previously approved an amendment of the 2008/2009 BUD Annual Action Plan to allocate Neighborhood Stabilization Program (NSP) fimds. The purpose of the public hearing is to solicit public input and take action on .a proposed amendment to the 2008/2009 .Annual Action Plan to expand the approved areas of greatest need to include additional census tracts due to changing market conditions; add a NSP eligible use for the acquisition, rehabilitation, and resale of foreclosed or abandoned properties; and authorize slaffto reallocate NSP fimds as necessary. ENv'IRONJ\lIENT AL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the National Environmental Protection Act due to the use of Federal funds, and has determined that the proposed project is deemed exempt under the National Environmental Protection Act (NEPA) Regulations. RECOMMENDATION Council conduct the public hearing and adopt the resolution. 12-1 9/1109, Item /2- Page 2 of3 BOARDS/COMMISSION RECOM..I\1ENDA nON The Housing Advisory Commission was provided an Information Memo on this action. Due to current membership quorum issues they were unable to meet on this item. DISCUSSION Council previously approved an amendment of the 2008/2009 HUD Annual Action Plan to allocate NSP funds established by Title ill of the Housing and Economic Recovery Act on November 25, 2008 and appropriated said funds on March 24, 2009. During development of the amendment of the 2008/2009 HUD Annual Action Plan to allocate NSP funds , staff focused on targeting smaller pocket neighborhoods affected by foreclosures based on available data. Over the ensuing months, the foreclosure market in the San Diego region changed dramatically. Since April 2009 when the first eligible first-time home buyers were pre-committed for funds, buyers have had difficulty fmding properties that meet program criteria and that compete effectively with other purchase offers. This difficulty is due to a significant decrease in inventory caused by state and federal imposed moratoriums on foreclosures, bank actions, and investor activity. Although the neighborhoods originally selected are still greatly affected by households in the foreclosure process, many homes are not available for purchase as banks have not listed them on the open market. There is hope that NSP buyers will begin to be more . competitive since HUD has reduced the required discount to a minimum of 1 % below appraised value (per the NSP Bridge Notice, 6/11109) and there has been a slow increase in foreclosed properties available for purchase. However, NSP buyers will continue to have difficulty if NSP activity is limited to current target areas. Staff is therefore proposing to expand the eligible area by including census tracts (including portions) previously excluded but eligible under plan thresholds from the areas of greatest need, and add four (4) additional tracts that have seen large increases in foreclosures in recent months, as depicted in Attachments 1 & 2. By expanding the eligible areas, buyers will have greater opportunity to fmd eligible homes (doubling the target areas from approximately 12% to 24% of the city). Since Chula Vista has seen high absorption rates of foreclosed properties, staff believes that the NSP goal to stabilize neighborhoods affected by foreclosures will still be accomplished. in addition, this action will amend the 2008/2009 HUD Annual Action Plan to include program changes consistent ",ith NSP Bridge Notice requirements and clarify the home buyer program description. It will further add a NSP eligible use to purchase and rehabilitate homes and residential properties that have been abandoned or foreclosed upon, in order to resell such properties to low and moderate income first-time homebuyers. Should staff find properties that are not being removed from the market through market sales or NSP purchases, and monies are left over from the $1,547,064 NSP fmancing mechanism use after December 2009, staff may use a portion of these funds to partner with NSP non-profit contractors/developers to acquire and rehabilitate these properties for the purpose of renting or reselling to qualified NSP participants. This will further enable NSP funds to be focused to neighborhoods that have been destabilized by unoccupied and distressed foreclosed properties. 12-2 9/1/09, Item /2- Page 3 of3 Citizen Participation Process City Staff has been working since the notification of NSP to encourage input on the use of funds. The City of Chula Vista held workshops during initial plan development to recei ve feedback and project suggestions. As required, a 15-day comment period to allow for the public to review the proposed amendment and make comments or suggestions began August 21 st and will end on September 5, 2009. There have been no comments received to date. Comments received at this public hearing will be incorporated into the amendment. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the .City Council and has found that two conflicts exist, in that Councilmembers Castaneda and Bensoussan have property holdings within 500 feet of the boundaries or within the target neighborhoods which are the subject of this action. . Due to identified conflicts during the initial target area development, City staff requested a written opinion from the Fair Political Practices Commission ("FPPC"). In response, the FPPC opined that Councilmembers could participate in the decision on this matter because, "it does not appear foreseeable that the decision to appropriate HUD funds will have a material financial effect (on a council member)." FISCAL IMPACT Current There is no fiscal impact by tonight's action. NSP funds were previously appropriated by Council on March 24, 2009. Ongoing There is no ongoing fiscal impact as the program is revenue offset by the grant funds. ATTACHMENT 1. Updated Census Tract Summary of Recorded Foreclosures 2. Proposed NSP Target Area Map Prepared by: Stacey,' Kurz, Senior Project Coordinator, Development Services Deparrment, Housing Division 12-3 Attachment 1 Updated Census Tract Summary of Recorded Foreclosures (Pmposed Ta'getMea highlighted) . ; .. . . . . - .. . . - . - - . - . , ::l . . - . . - . , : , : I I 12302 y 5 10 9 -10 12303 y 6 26 22 -15.4 12304 Y 6 14 17 21.4 12401 y 5 8 12 50 '~24(j2,';'Ml"";~ y ""';''lIi'i,~~ 28 23 -17.9 .-,--. -'.:ij;", "'~ I~~'~; :1I7k~'; I y 28 29 3.6 I I Y F;h~.il!&i~il!!1ltr 43 34 -20.9 ~i:~LI,U.U y r""~ .,'..' -' , 27 36 33.3 12800 Y 6 27 28 3.7 y 6 29 41 . I I Y 5 34 53 13102 Y 6 39 36 -7 7 13103 Y 5 6 5 -16. 7 13104 Y 6 26 28 7.7 13203 y 6 16 18 12.5 13204 Y . 7 8 14.3 1320512){O) Y 14 14 0 13206(2)13} y 20 28 40 13301 Y 5 58 67 15.5 13302 y . 41 44 7.3 E~l y 61 63 3.3 "'~~"~il"'13306'..'~-'-N~ Y 57 53 -7 "ir~~'_ ',;,";'!;' .;lff.'t; .. ,.__~i~, Y 39 33 -15.4 ::r&~~:f.t::~~:r~~t1'~~9 ~:f~l't~~~:~~ y 76 91 19.7 Y 6 ~100'~ 94 -6 '''''''''''''f,13310 ~"""'~ lll\i!t~;l81~!~j1l,~'~'l .'~-'''. ~_.." .. . '.'" ,.',.. y 6 ~;:,1#.?~,<~..~t46?:~~~~ -18.4 ''>:>'''.;.j ","3f.'a~~ ......L-..;2!:> -'/(fi:tf ~,._._~ N 6,;" 25.6 t~~!~;:;~~':13312{~J$~Y;'f"if~ y ~:~,:;':~~'!~.'t~~'i:,oI:: 4 1 ~,~:2,~...: .~W ' _':LM~':5:t'.;'-~~1 .,......"~._-;". "'I;':'i"1llii":' "''''~..,.~ 43 4.9 Y ~ 22.8 13401 N 6 46 6.5 13409 Y 3 43 ~ ' . N 6 80 ; . ", . ~'"" 13411 N 5 :~ ..". :,'r 134121')13) N 5 23 13413 Y 5 73 74 1.4 13414 N 4 72 79 9 7 13415 y 5 15 17 -- ~ y 5 18 33 N ~ 24 19 -20.8 Y ~;"LU,"_"21n~ 0 ,_:s::,-::,,,,;-,~.,,,,,, .. -., '"1:;;:;'." ;;::',",' ;''''.. - --. ~;'----"--'F;":' :,~,'lfC; .:::~:;:;'~-i1;.1~:!9Nf%...'":>.!~;'.~":";f""1'5'" Y 6 ;'~i!i~,;t52,,,Mj1ilii ~'i"i!;1.8Ei~~,i 22.4 (1) Census Tracts identified as eligible if any block group within the tract was LMMH. (2) Census Tract was ex::luded from Initial Amendment even though it met threshold criteria. (3) Excluded due to efforts to target & composition of census tract. (4) Only a portion of the census tract was included in the Initial Amendment target area. (5) Non-LMMH census tract eligible since serving LMMA households. 2008/2009 Action Plan Amendment (NSP) Update of Target Areas NSP Substantial Amendment 12-4 Large Market Changes Target Neighborhoods .~~oo () PROPOSED TARGET AREA AMENDMENT ~". 0>, ~""C~ "'H,(t,. Red/."Vc1opmc.nr'; ~HI!lISillJ; Proposed Target Area , - ,~, ",""" moo ~~~~'~ ~ - Exduded From Initial Target Area D Census Tr<lct 2000 12-5 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING Ai'\[ AMENDMENT TO THE FISCAL YEAR 2008/2009 ANNUAL ACTION PLAN OF .THE NEIGHBORHOOD STABILIZATION PROGRAM (NSP) FUNDS TO EXPAND THE AREAS OF GREATEST NEED; ADD A NSP ELIGIBLE USE TO ACQUIRE, REHABILITATE, AND RESELL -FORECLOSED OR ABANDONED PROPERTIES; AND AUTHORIZE THE REALLOCATION OF NSP FUNDS AS NECESSARY WHEREAS, on May 6, 2008, pursuant to Resolution No. 2008-121, the City Council approved the Fiscal Year 2008/2009 Annual Action Plan for the Community Development Block Grant (CDBG), the HOME Investment Partnership (HOME), and the Emergency Shelter Grant (ESG) Federal Grant Programs; and WHEREAS, in September 2008, the United States Department of Housing and Urban Development (HUD) notified the City that the City is eligible to receive approximately $2.8 million in one-time CDBG funds through the new Neighborhood Stabilization Program (NSP) in addition to its annual CDBG entitlement; and WHEREAS, on November 25, 2008, Council approved the submittal of an amendment of the Fiscal Year 2008/2009 Action Plan, HUD approved the amendment on January 13,2009, and on March 24, 2009 Council appropriated $2,830,072 in CDBG NSP funds consistent with the approved plan; and WHEREAS, staff initially identified NSP eligible uses and areas of greatest need for the use of these funds within the City and these target neighborhoods include portions of northwest and southwest Chula Vista, Eastlake, and Otay Ranch communities; and WHEREAS, due to changing market conditions since that time, the City desires to "expand" these target areas to include" additional census tracts in the Northwest (south and west of the existing target area) and East Target Neighborhoods (adding areas of Eastlake, Rolling Hills, San Miguel Ranch, Otay Ranch, and Sunbow) and add a NSP eligible use to purchase and rehabilitate homes and residential properties that have been abandoned or foreclosed upon, in order to sell such homes and properties. NOW, THEREFORE, BE IT RESOLVED by the City Council of Chula Vista that it amends the Fiscal Year 2008/2009 Annual Action Plan for Neighborhood Stabilization Plan (NSP) funds to "expand" the target areas of greatest need by including additional census tracts in the Northwest (south and west of the existing target area) and East Target Neighborhoods (adding areas of Eastlake, Rolling Hills, San Miguel Ranch, Otay Ranch, and Sunbow); utilize such funds in the "expanded" areas of greatest need; add a NSP eligible use to purchase and rehabilitate homes that have been abandoned or foreclosed upon, in order to sell such homes and properties; and authorizes staff to reallocate funds as necessary. 12-6 Resolution Page 2 of 2 Presented by Approved by /~ 4 ,IDCA James D. Sandoval City Manager Bart Miesfeld Interim City Attorney C:\Documents and Settings\joycem\Local Scttings\Tcmporary Internet Files\OLK12\RESO NSP Expanded Areas 9 1.09 REVISED.doc 12-7 CITY COUNCIL AGENDA STATEMENT ~ I f{:.. CITY OF .4~ (HULA VISTA Item: Ip Meeting Date:09/0l/09 ITEM TITLE: PUBLIC HEARING TO CONSIDER Ai'i APPEAL OF THE DETERiYIINATION OF THE DEVELOPMENT SERVICES DIRECTOR THAT THE PROJECT (TMP 08-08 SUBDIVISION OF A 23,381 SQUARE FOOT SITE INTO THREE LEGAL LOTS) IS CATEGORICALLY EXEMPT FROM THE PROVISIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT PER SECTION 15315 OF THE STATE CEQA GUIDELINES. THE SITE IS LOCATED AT 634 SECOND AVE. SUBMITn~D BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DENYING THE APPEAL AND UPHOLD THE DECISION OF THE DEVELOPMENT SERVICES DIRECTOR THAT THE PROJECT IS CATEGORICALLY EXEMPT FROM CEQA PURSUANT TO SECTION 15315 (MINOR LAND DIVISION) OF THE STATE CEQA GUIDELINES AND TO DENY THE REQUEST TO WAIVE ALL APPLICATION FEES FOR THIS PROJECT-SAVE OU:"fERITAGE ORGAi'iIZATION. DEPUTY CITY MANAGE~EVELOPMENT SERVICES DIRECTOR REVIEWED BY: CITY MANAGE~Sr 4/5THS VOTE: YES NO X RECOMMENDATION Staff recommends the Council continue this item to a date certain, September 15, 2009. 13-1 CITY COUNCIL AGENDA STATEMENT ~(rt.- C1TYOF ~~ (HULA VISTA SEPTEMBER 1, 2009, Item~ ITEM TlTLE: EXTENTION OF AN INTERIM URGENCY ORDINANCE OF THE COUNCIL OF THE CfTY OF CHULA VIST A EXTENDING A MORATORIUM ON THE LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES AND COOPERATIVES WITHIN THE CfTY OF CHULA VISTA CITY ATTORNEY'S OFFiCE(!)/-- CITY ATTORNEY'S OFFIC0~ SUBMITTED BY: REVIEWED BY: 4/5THS VOTE: YES I X I NO D SUi\li\'i.-\I<Y ''^t its meeling on.lllly 21, 2009, the Council adopted anllltenm urgency ordiJlance bya vote 01'4-0 establishing an interim urgency ordinance placing a 45-day moratorium on the legal establishment and operation of medical marijuana dlspensariesl In Chula Vista. The interim urgency ordll1ance was passed to protect the public safety, he,1Ith and welfare of Chula Vista and because medical manjuima organizations conflicted with the Geneml Plan. This urgency ordinance shall expire on September 4th unless otherwise extended by this Council Council also requested staff provide responses to specific questions that Council had on this issue and provide insight with regard to potential regulations the next time the matter was heard. This staff report and enclosures slll'llld resp()nd to many of the Council's questions. Stalf will also provide brief presentations from the Development Services Department and the Cl1l1la Vista Police Department on this matter and has also requested a representative oftl1e San Diego County District Attorney's Office be present should any questions on criminal law enforcement policy with regard to these types ofbuslIlesses be raised. Starr is n"" requesting an extensIon of the moratorillln 'by 10 months and i5 days which IS the standard' extenslOll listed in GoVelll111ent Code 65858. Under Govemment Code 65858 only 2 extensions of the interim I TIll' I,\'ord "l!ispellStll"ies" dnes not appetlr 111 Californi::l's llledic<ll111arijuoI1J stahltes. and is often llsed to describe a variety of operali()lls rel;1tecl tu distributing medic,,] mariju:lIl:J., which l1lay or I11<1Y nut comply with state luw. Under the Caltfornia Attorney Geller<.1)'" (iuide!ines ollly "collectives" or "cooper<1tlves" <Ire legal under California law. 14-1 SEPTEMBER 1, 2009, Item~ Page 2 0 f 8 urgency ordinance are pernlitted; the first extension for 10 months and 15 days, and the second extension for 12 months. No other fornl of extension is pern11tted under Government Code 65858. This extension is necessary because: !) the interim urgency ordinance initially adopted by Council will expire on Septemher 4th; 2) the expiration of the interim urgency ordinance poses potential liability exposure to the City; 3) the extension IS necessary to protect the public safety, health and welfare of Chula Vista residents with regcmltn the proliferation of negative secondary effects related to medical marijuana dispensalies; 4) there is no standard Cllirornia city regulatory policy or ordl1lance model with regard to medical marijuana dispensaries and staff needs more time to evaluate the eXisting ordinances to deternline which form of regulation/legislation will be l11os1 ellective; and 5) the Appellate Court decision in Qualified Patients Association, et al. v. eit\' of Anuheilll hclS not been issued which will provide guidance on municipal regulation of medical marijuana dispensaries under a zoning ordinance. ENVIRONMENTAL REVIEW ThiS proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEA W) and it has been detem1ined 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 15UGO( c)( 3) of the State CEQA GUidelines, the activity is not subject to the CEQA. Thus, no envIronmental review is necessary. RECOMMENDATIONS E,'.;tend an interim urgency ordinance placlllg a moratorium on the legal establishment and operation of mecllcalmarijuana dispensaries and cooperatives; and/or ., Direct stalTto study the applicable legal and land use issues and develop appropriate zoning and licensing glll(lelines or regulations govel11ing such uses and/or prohibition of sllch uses. BOARDS/COIVIMISSION RECOMMENDATION N/A DISCliSSION BACKGROUND ON URGENCY ORDINANCE EXTENSION REQUEST On July 21,2009, City Council adopted an interim Urgency Ordinance by a vote of 4-to-0. This urgency ordmance shall expire on September 4, 2009, unless the interim Ordinance is extended, The 1I1tenm urgency ordinance was approved by Council to lllsulate the City from li'ability and to protect tbe publiC safelv. hecllth and welt'are of Chula Vista residents With regard to the proliferation of negatIve secol1dary elTeets relcll-cd to medical marijuana dispensaries This proposal IS comprised of one component, which is to extend for ten months and fifteen days an Interim urgency ordinance. Tbis extension would continue the moratorium on the legal establishment and 14-2 SEPTEMBER 1,2009, Item /LI- p age 3 0 f S operation of medical marijuana dispensarIes while staff prepares a report and recommendation for regulating this land use. Sll1ce the adoption of the interim urgency ordinance, the City has not adopted rules and regulations specl ['ically applicable to the establIshment and operation of medical marijuana dispensaries, Staff has met with proponents, applicants and those opposing regulation to seek public input and guidance on any potential regulation. Although Proposition 215 was passed in 1996, no guidance has been provided to Califoll1ia Cities by either the courts or the state on how to apply Proposition 215 and how to best regulate organizations that provide medical marij uClna. Staff' cannOl overemphasize the dearth of direction to cities on this issue, The Califoll1ia Attoll1ey Gener,,1 Guidelines (attached hereto) merely discuss how to go about legally establishing cooperatives and the Attomey General h'1s not prOVided any insight Into how cities should regulate this issue (nor does staff expect him to). Each city that does regulate medical marijuana takes an ad hoc approach to regulatIOn with differing regulatory methods and statutory language, There are many issues involved with a regulatory ordinance and none of the current regubtory ordinances are consistent with each other. Thus, there is no "cookie cutter" municipal ordinance to regulate i"edlcal marijuana that cities could easily employ and adopt. Moreover, many California cities that have adopted regulatory proviSIOns are now re-thinking their regulations bec'ause of the proliferation of medIcal marijuana dispensaries and the ineffectiveness of their regulations, For e.'{ample, the City of San Diego's Committee on Public Safety and Neighborhood Services recently passed a moratOrIum and established a 12-month task force committee to prepare a draft ordinance goverlllng medical marijuana dispensaries. Other cIties such as Oakland that have experIenced an excessive number of dispensaries have passed caps on the total number pelmitted within city limits. This issue IS extremely expansive and there are multiple zonmg, operational and law enforcement concelllS rcl"I,:d III the establishment of cooperatives within city limits. In movmg forward, many complex zoning and regulalol'v Cllncems need to be researched and analyzed, A few of these concerns include: I) In what zones will medical marIjuana cooperatives be allowed if at all"; 2) Are there playgrounds, elementary schools, etc" that would limit the areas where medical marijuana dispensarIes could exist within these zones" 3) Wh,,! Impacts on other businesses withIn these zones may result if medical marijuana dispensaries are permitted"; 4) What type of medical marIjuana establishmenls will be permitted withll1 Chula Vista?, 5) Will cooperatives be permitted to have storefront locations where they dispense to patients?; 6) Wh"t definitions should be employed from other ordmances to regulate these establishments and IllcdlcalmariJu<lllJ. LIse: 14-3 SEPTEMBER 1,2009, Item 1'1- Page 4 ofS 7) HOI\ far will the cooperatives be pem1itted to operate from each other, schools, day care centers and p~lrks') , 8) Will there be a "cap" on the total number of cooperatives?; 9) What hours of operation shall be set"; 10) Wlnt regulatory tools should be employed by way of an ordll1ance, i.e., a conditional use pennit?; II) What types of fees should be established to process these applicatIOns?; 12) Will the ordinance mandate Chief of Police background check approval on proprietors, employees"; 13) Can the penlllts that may be issued go through a revocation hearing based on calls for service"; 14\ Does Council want to establish a special tax on these businesses"; IS) WI"lt [iXll1 Ill' public input should be sought on this matter and how can it be incorporated into this process') 1 Ci) Would be COUl1Ctl desire to establish a citizen task force committee to research and prepare recommendations to the Plannll1g Commission akin to what the City of San Diego has done" 17) To what extent should staff coordinate with other South County cities facing the same issue and IncoqJorate their effol1s on any regulatory provisions? The proposed extension of this ordinance would allow for the time needed to analyze each of these issues and present a thoughtful, effective and well-devised regulatory scheme that addresses all relevant issues If directed to do so. The extension Will provide additional time for garnering public input, conducting meeti ngs, completing research and considering regulations for these establishments in a manner that Will protect the general public, residents and businesses adjacent to and near such busll1esses, and the patients or clients of such establishments. The zoning ordinance would need to be amended which would first have to go through Planning Commission to make reCl'll1mendatlons to Council A zoning ordinance amendment must be requested by a majority vote of CounCil. (VIVIC ~ 19.12.020. Many San Diego Cities have also passed similar interim urgency moratOliums includll1g Santee, Oceanside (10 month extenslon), Escol1dido, National City and Imperial Beach. The County also recently approved a sunilar moratorium (45 days). Staff expects any of these mUl1lcipalities that have approved the initial 4s-day moratorium to also approve the 10-month extension. Many Cities In Califomia have outright, explicit bans on medical marijuana dispensanes and cooperatives. Some 01' these Cities include Escondida, Vista, San Marcos, El Cajon, La Mesa, Lemon Grove, San Marcos, PleasclI1lon, Pleasant Hill, Concord, Cathedral City. Moreno Valley, Roseville, San Rafael, Redlands, Windsor, 14-4 , SEPTEMBER l, 2009, Item I"f Page 5 of8 Ukiah, Oceanside, Slmi Valley, Trinidad, Cloverdale, Petaluma, Susanville, Oxnard and Palm Desert (to name 'a few). [n addition. manv cities are currently involved in medical marijuana civil litigation over their bans or regulatory ordlllances including: Anaheim, Chico, Los Angeles, Fresno, San FranCISco, Oakland and Alameda, Accordin:; to the Americans For Safe Access website, in Califomia over 113 cities and 7 counties have medical mariju~ll'" dispensary bans (120 total), 51 cities and 3 counties have moratoriums (54 total), whereas only 32 cities and <) counties (40 total) cUITently pem1it medical manJuana dispensaries, According to these statistiCS the maJol'ity of Call fornia municipal organizations currently ban medical marijuana or have a moratorium on it. BACKGROUND ON MEDICAL MARIJUANA IN CALIFORL'\'IA In 199(" Colli lamia voters approved Proposition 215, also known as the "Compassionate Use Act or 1996" Cal. HCC1[th 8: Safety Code ~ 113625, Proposition 215 provides seriously ill Californians the right to obtain and use marijuallO! fix medical purposes when such use is recommended by a physician, The recommendation can be ol'a[ or \\Tlnen. Proposition 215 further provides that both the patient and the patient's "primary caregiver" are exempt from prosecution for violatmg state laws against the possession and cultivation of marijuana, "Primary caregiver" IS defined as the Individual deSIgnated by the patient who has consistently assumed responsibility for the hOUSing, health, or safety of that person, lei. EHectll'e January L 2004, the Legis]ature enacted the "Article 2,5 Medical Marijuana Program" [Medical Marijuana Program] also commonly referred to as "SB 420" (Senate Bill 420), Cat. Health & Safety Coele ~~ II 3e,2 7- [1,'(,2.83 The legislation expanded the state law exemptions for qualified patients and primary care!;ivers to Include exemptions from an'est and prosecution for possession for sale; transportation. distribution, and imponatlon: mamtaming a place for unlawfully selling, distributing, or using: knowingly making available a place for unlawful manufacturing, storage, and distribution; and using such a place, The legislation also allows marijuana to be collectively or cooperatively cultivated for meJical purposes by qualified p~llienls and primary caregivers, Cal. Health & Safety Coele 0 llJ62.775, C\rltivating or distributing marijuana for profit is expressly disallowed, Cal. Health & Safety Code 0 11362,765(a), Primary caregIvers may recover I'easonabk compensation for services and for out-of-pocket expenses, Cat. Health & Safety COlle ~ 11362.765(c), State law does not authorize the smoking of marijuana in places where smoking is otherwise prohibited, nor does it authorize smoking on a school bus, in a motor vehicle that is being operated, or within 1,000 feet of a school, recreation center, or youth center, unless the medical use occurs withm a residence, Cat. Health & Safety Code ~ llJ62.79. State law does not require workplaces or jails to allow medical manJuana use, Cal. Health 8: Safety Coele ~ 11367.785, The Medlc"l Marijuana Program also established a voluntary Identification card system to he maintained by the Srate Depanment of Health Servlces, Cal. Health & Safety Code S llJ62.7]' The intent of the Medica[ Marijuana Program is, ill part, to lI1sure a UI1l form. statewide identificatIOn program for patients and pnmary caregivers. ,'\s part of the Medical Marijualla Program, each county health department. or the county's designee, provides applications, receives and processes completed applications, and issues identification cards, Cal. I kaki) & Safety Code ~~ 1 ]362.71(b): 11362,72-11362,74, Participation is voluntary and possession of an 14-5. SEPTEMBER 1,2009, Item I'f Page 6 01'8 identification card IS not required to qualify for the protections of Proposition 215 and the MedIcal Marijuana Program. The County recently began iSSUing identification cards. COUNCIL REFERRAL ITEMS At the July ~ I" meeting. Counei Imembers requested the following questions be answered or the following items be discussed at the next Council meeting: I)Are there existing guidelines set forth by the Attomey General for operation 01' legal marijuana dispensaries7; 2) What are the methods by which cities could regulate and provide oversight. with the suggestion of perhaps the requirement of a conditional use pel1l11it7; 3) Where are existing marijuana dispensaries located in San Dieg07; 4) What is the regulatIOn of hours of operation of sueh businesscs". 5) Input by the Police Chief on the matter; 6) Statistics on existing marijuana businesses that are operational in San Diego; 7) The process by which the state collects sales tax revenue from such businesses; and 8) Legal an,llysis hv stall about the City's obligations under the law in providing access and space for this type 0[' use. RESPONSE TO COUNCIL REFERRAL ITEMS With this agenda statement. staff has provided Council WIth the following documents that may respond to the questions above: I) The Attorney General's Guidelines On Medical Marijuana [discussing the legal establishment of cooperatives]; 2) sample ordinances from other Califomia cities; 3) The Califomia State Board of Equalizati,)n's Information on Sales Tax and Registration for Medical Marijuana Sellers'; 4) the Califomia Plllicc Chiefs .Assoclation's White Paper On Manjuana Dispensaries [discussing in part law enforcement chcr!len!;c'" With San Diego's dispensanes] and 5) a current list of existing San Diego dispensaries and CI)Operatl\CS prOVided to staff by the San Dieguito AlIianc.e for Drug Free Youth.' The Allornev General's Guidelines disCllss the legal establishment of cooperatives only. While medical marijuana cooperatives can be legally established under Califomw law according to the San DIego District Atturnev's Oftice many of these legally established cooperatives in San Diego are operating illegally under Callf(Jr1l1~1 Ltw. Meellcal marijuana dispensaries and cooperatl'ves are subject to sales tax per the State Board of EqualizatIon. Ho\' the sales tax IS tracked, administered and allocated to Chula Vista is technical question requinng research and reView by City stall. Should ('ouneil deSire to create a special tax (above and beyond sales tax) that targets medical marijuana, much like the City of Oaldand did last year. the City Council would have to submit any special tax as a general ballot electlon pursuant to Proposition 218 and the City Charter In Chula Vista. certain bUSinesses and occupations are "poltce-regulated," meaning they cannot operate WIthout a police permit, are subject to inspectioll by the police department, and must comply with various regulations governing their occupations and bUSinesses. Applicants must complete a background check and, in addition to any other penal or Civil remedies, are subject to various regulatory penalties including suspension and Stafr notes tll<J.t technically the "sale" of marijuana is still i Ilegalunder California law despite the State continuing to levy sales tax on S<.lIeS. The BOE's tax policy does not imply legCllity for l1larijuano:t sales. ~ Sl:.1ff IHHcs. hO\vt'vel. that many other dispensJries may be up and running that are not included in the list. 14-6 SEPTEMBER \, 2009, \temJ!f_ Page 7 of8 revocation n r their permit for speci fled violations of the Chula Vista Municipal Code or other applicable law There is no case or statute directly addressing the issue of police regulation over collectives or cooperatives. California Health and Safety Code section 11362.83 (part of Senate Bill 420, the Medical Marijuana Program) says, "Nothing in this article shall prevent a city. from adopting and enforcing laws consIstent with this article." Generally. so long as any ordinance passed by the City is consistent with state law, it is not preempted. 880p Cal. Att'y Gen 113. i 17 (2005). [n this case. the "industry" is not an industry In the sense of a retail business. State law says that those who colleCli\'cl) or cooperatively cultLvate medical marijuana are not subject to arrest and prosecution for violating CaILti>r11La\ drug laws: it does not make such endeavors "legal" and such endeavors still remain illegal under fedcrcrll:t\\ Proposition 215 and the Medical Marijuana Program provide protection from arrest and prosecution for engaging III certaLn activities: the cooperotive or collective cultivation of marijuana by certain qualifIed persons means they can assert an affinnatLve defense, Careful consideration must be given as to whether regLllatLon by the Chula Vista Police Department makes sense in this situation in addition to the impact on CULTent Police Depmtment resources it may bear. With regard to the City's obligations LInder the 18w in providing access and space for this type of use, staff expects thai tillS question wrll be resolved by the ruling in Qualified Patients AssociatlOl/, er al. v, eirv of AI/ull/lilll. According to the number of cities that ban medical marijuana it is clear that many CalifoL11la cities take the positLon that they are not obligated to provide access to medical marijuana organizations, ANAL YSIS The I'roposed extension of the interim urgency ordinance would affect most land use designations and lands within the City's jUrisdiction. The proposed extension of the interim ordinance would continue a mOI'al,)I'ILlI11 on the legal establishment and operation of medical marijuana dispensaries that was established on Julv 21, 2009 This use would not be permitted in any Zoning DLstrict within the City during the moratorium. Proposing an extension for the Lnterim ordinance conforms to the goals, objectives, and policies of the Gener,d Plan. The Cit:', Ceneral Plan is geared towards LllQintaining "strong and safe neighborhoods" and one of its gnals IS th'll "[e]ach neighborhood in Chula Vista, is safe and attractive" [and where] Citizens ['eel s'Lk t,.' ""llk \VithLn and among nelghborhollds and allow their children to do the same." General Platl al Page V&T-5. As stated in the Cilv 's General Plan, "[(Jhe Zoning Ordinance is the primary tool for implementing the' General Plan, and LS designed to protect the public health; safety; comfort; convenience: prosperity and general well'are of the people," General Plan at Page LUT-5. The proposed extension of the moratOrLum on the legal establishment and operation of medical Lm1l'ljuana dispensarLes prOVides the City Coullcil the opportunity to direct staff to prepare a report descrlhlng how thiS land use would or would not 1) ensure the longterm community and neighborhood 14-7 SEPTEMBER I, 2009, Item~ Page 8 0 f 8 "liLies: 2) comply with Chula Vista's community enhancement goal, objective, and policies as stated in the Gener,li Plan, and 3) describe measures which the City has taken to address the conditIons that led to thc adoption of an interim urgency ordinance. The proposed Interim ordinance complies with go,lis 'llld objectives stated in the General Plan. The proposed extension will also allow the City to await judicial opinion expected ll1 a case currently before the Fourth Distnct Court of Appeal (Quultjied Puliellls AsslI. V. City of Allaheim) on the constitutionahty of medical marijuana dispensary bans. Oral argument is scheduled for that case for September 23, 2009, with an opinion expected by December 2009. [n order to protect the .publlc safety, health and welfare, the 'City Council, after a public hearing, Ill<lY extend the interim urgency ordinance prohibiting the establishment of medical marijuana dispensaries within the City if It finds that such uses may be in conflict with a contemplated general plan, specific plan, or zoning proposal that the Development Services Department is studying. The City Council shall hear testimony from staff and any interested parties regarding the extension of the interim ol'dinance, after which the City Council shall adopt or reject the proposed extensIOn. Extension of the interim ordinance reqL1II'es a super-majority (four-fifths) vote of the City Council The interim ordinance shall be of no further force and effect 12 months after the ll1itial adoption, if the Interim ur:;ency ordinance is extended for the full 10 months, IS days. The City Attorney's Office has reviewed the proposed ordll1ance and approved it as to form. DECISION MAKER CONFLICT Sta~T has reViewed the decislon contemplated by this action and has determined that it is not site specific and consequently the 500 toot rule found in Califomia Code of Regulations section 18704.2(a)(1) is not applicable to thiS d~CISiol1. CURRENT YEAR FISCAL IMPACT The temporary ban results in no fiscal impact currently. ONGOING FISCAL IMPACT The temll"rary ban results in no fiscal impact currently. ATTACHi\IENTS NOlle Prepurcd h.l'. Chu/7I..:r.: C HUH'kins, Deput}' Ci(v A({url7e:v. Ci(l' Atlorney 's qfliet;.' 14-8 EDMUND G. BROWN JR. Attorney General DEPARTMENT OF JUSTICE State of California GUIDELINES FOR THE SECURITY AL','D NON-DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE August 2008 In 1996, California voters approved an initiative that exempted certain patients and their primary caregivers from criminal liability under state law for the possession and cultivation of marijuana. In 2003, the Legislature enacted additional legislation relating to medical marijuana. One of those statutes requires the Attorney General to adopt "guidelines to ensure the security and nondiversion of marijuana grown for medical use." (Health & Saf. Code, 9 11362.81 (d).I) To fulfill this mandate, this Office is issuing the following guidelines to (1) ensure that marijuana grown for medical purposes remains secure and does not find its way to non-patients or il1icit markets, (2) help law enforcement agencies perform their duties effectively and in accordance with California law, and (3) help patients and primary caregivers understand how they may cultivate, transport, possess, and use medical marijuana under California law. I. SUMMARY OF ApPLICABLE LAW A. California Penal Provisions Relating to Marijuana. The possession, sale, cultivation, or transportation of marijuana is ordinarily a crime under California law. (See, e.g., 9 11357 [possession of marijuana is a misdemeanor]; 9 11358 [cultivation of marijuana is a felony]; Veh. Code, 923222 [possession of less than 1 oz. of marijuana while driving is a misdemeanor]; 9 11359 [possession with intent to sel1 any amount of marijuana is a felony]; 9 11360 [transporting, selling, or giving away marijuana in California is a felony; under 28.5 grams is a .misdemeanor]; 9 11361 [selling or disiributing marijuana to minors, or using a minor to transport, sell, or give away marijuana, is a felony].) B. Proposition 215 - The Compassionate Use Act of 1996. On November 5, 1996, California voters passed Proposition 215, which decriminalized the cultivation and use of marijuana by seriously ill individuals upon a physician's recommendation. (9 11362.5.) Proposition 215 was enacted to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana," and to "ensure that patients and their primary caregivers who obtain and use marijuana for Unless otherwise noted, all statutory references are to the Health & Safety Code. -1- 14-9 June 2007 Special Notice that addressed several frequently asked questions concerning taxation of medical marijuana transactions. (http://www.boe.ca.gov/news/pdfIl73.pdf.) E. Medical Board of California. The Medical Board of California licenses, investigates, and disciplines California physicians. (Bus. & Prof. Code, S 2000, et seq.) Although state law prohibits punishing a physician simplyJor recommending marijuana for treatment of a serious medical condition (9 lI362.5(c)), the Medical Board can and does take disciplinary action against physicians who fail to comply with accepted medical standards when recommending marijuana. In a May 13,2004 press release, the Medical Board clarified that these accepted standards are the same ones that a reasonable and prudent physician would follow when recommending or approving any medication. They include the following: 1. Taking a history and conducting a good faith examination of the patient; 2. Developing a treatment plan with objectives; 3. Providing informed consent, including discussion of side effects; 4. Periodically reviewing the treatment's efficacy; 5. Consultations, as necessary; and 6. Keeping proper' records supporting the decision to recommend the use of medical marijuana. (http://www.mbc.ca.govlhoardlmedialreleases_2004_05-l3_marijuana.htm!.) Complaints about physicians should be addressed to the Medical Board (1-800-633-2322 or www.mbc.ca.gov). which investigates and prosecutes alleged licensing violations in conjunction with the Attorney General's Office. F. The Federal Controlled Substances Act. Adopted in 1970, the Controlled Substances Act (CSA) established a federal regulatory system designed to combat recreational drug abuse by making it unlawful to manufacture, distribute, dispense, or possess any controlled substance. (21 U.S.c. S 801, et seq.; Gonzales v. Oregon (2006) 546 U.S. 243, 271-273.) The CSA reflects the federal government's view that marijuana is a drug with "no currently accepted medical use." (21 U.S.c. 9 812(b)(1).) Accordingly, the manufacture, distribution, or possession of marijuana is a federal criminal offense. (Id. at 99 841(a)(I), 844(a).) The incongruity between federal and state law has given rise to understandable confusion, but no legal conflict exists merely because state law and federal law treat marijuana differently. Indeed, California's medical marijuana laws have been challenged unsuccessfully in court on the ground that they are preempted.by the CSA. (County of San Diego v. San Diego NORML (July 31, 2008) _n Ca!.Rptr.3d ---, 2008 WL 2930117.) Congress has provided that states are free to regulate in the area of controlled substances, including marijuana, provided that state law does not positively conflict with the CSA. (21 U.S.c. S 903.) Neither Proposition 215, nor the MMP, conflict with the CSA because, in adopting these laws, California did not "legalize" medical marijuana, but instead exercised the state's reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition. (See City of Garden Grove v. Superior Court (Kha) (2007) 157 Ca!.App.4th 355, 371-373, 381-382.) - 3 - 14-10 HI. GUIDELINES REGARDING INDIVIDUAL QUALIFIED PATIENTS AND PRIMARY CAREGIVERS A. State Law Compliance Guidelines. i. Physician Recommendation: Patients must have a written or verbal recommendation for medical marijuana from a licensed physician. CII1362.5(d).) 2. State of California Medical Marijuana Identification Card: Under the MMP, qualified patients and tbeir primary caregivers may voluntarily apply for a card issued by DPH identifying them as a person who is authorized to use, possess, or transport marijuana grown for medical purposes. To help law enforcement officers verify the cardholder's identity, each card bears a unique identification number, and a verification database is available online (www.calmmp.ca.gov).ln addition, the cards contain the name of the county health department that approved the application, a 24-hour verification telephone number, and an expiration date. (9S 11362.71(a); I 1362.735(a)(3)-(4); 11362.745.) 3. Proof of Qualified PatientStatus: Although verbal recommendations are technically permitted under Proposition 215, patients should obtain and carry written proof of their physician recommendations to help them avoid arrest. A state identification card is the best form of proof, because it is easily verifiable and provides immunity from arrest if certain conditions are met (see section IILBA, below). The next best forms of proof are a city- or county-issued patient identification card, or a written recommendation from a physician. 4. Possession Guidelines: a) MMP:' Qualified patients and primary caregivers who possess a state- issued identification card may possess 8 'oz. of dried marijuana, and may maintain no more than 6 mature or 12 immature plants per qualitled patient. (g 11362.77(a).) But, if"a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs." (g 11362.77(b).) Only the dried marure processed flowers or buds of the female cannabis plant should be considered when determining allowable quantities of medical marijuana for purposes of the MMP. (g 11362.77(d).) b) Local Possession Guidelines: Counties and cities may adopt regulations that allow qualified patients or primary caregivers to possess On May 22, 2008, California's Second District Court of Appeal severed Health & Safety Code S 11362.77 from the M!vIP on the ground that the statute's possession guidelines were an unconstitutional amendment of Proposition 215, which does not quantify the marijuana a patient may possess. (See People v. Kelly (2008) 163 CaLAppAth 124,77 CaLRptr.3d 390.) The Third District Court of Appeal recently reached a similar conclusion in People v. Phomphakdy (July 31, 2008) --- Cal.Rptr.3d _n, 2008 WL 2931369. The California Supreme Court has granted review in Kelly and the Attorney General intends to seek review in Phomphakdy. - 5 - 14-11 has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently." (9 11362.78.) 5. Non-Cardholders: When a person claims protection under Proposition 215 or the MMP and only has a locally-issued (i.e., non-state) patient identification card, or a written (or verbal).recommendation from a licensed physician, officers should use their sound professional judgment to assess the validity of the person's medical-use claim: a) Officers need not abandon their search or investigation. The standard search and seizure rules apply to the enforcement of marijuana-related violations. Reasonable suspicion is required for detention, while probable cause is required for search, seizure, and arrest. b) Officers should review any written documentation for validity. It may contain the physician's name, telephone number, address, and license number. c) If the officer reasonably believes that the medical-use claim is valid based upon the totality of the circumstances (including the quantity of marijuana, packaging for sale, the presence of weapons, illicit drugs, or large amounts of cash), and the person is within the state or local possession guidelines or has an amount consistent with their current medical needs, the person should be released and the marijuana should not be seized. d) Alternatively, if the officer has probable cause to doubt the validity of a person's medical marijuana claim based upon the facts and circumstances, the person may be arrested and the marijuana may be seized. It will then be up to the person to establish his or her medical marijuana defense in court. e) Officers are not obligated to accept a person's claim of having a verbal physician's recommendation that cannot be readily verified with the physician at the time of detention. 6. Exceeding Possession Guidelines: If a person has what appears to be valid medical marijuana documentation, but exceeds the applicable possession guidelines identified above, all marijuana may be seized. 7. Return of Seized Medical Marijuana: If a person whose marijuana is seized by law enforcement successfully establishes a medical marijuana defense in court, or the case is not prosecuted, he or she may file a motion for return of the marijuana. If a court grants the motion and orders the return of marijuana seized incident to an arrest, the individual or entity subject to the order must return the property. State law enforcement officers who handle controlled substances in the course of their official duties are immune from liability under the CSA. (21 U.S.C. 9885(d).) Once the marijuana is returned, federal authorities are free to exercise jurisdiction over it. (21 U.S.C. 99 8l2(c)(IO), 844(a); City of Garden Grove v. Superior Court (Kha) (2007) 157 Cal.AppAth 355, 369, 386, 391.) - 7 - 14-12 B. Guidelines for the Lawful Operation of a Cooperative or Collective: Collectives and cooperatives should be organized with sufficient structure to ensure security, non-diversion of marijuana to illicit markets, and compliance with all state and local laws. The following are some suggested guidelines and practices for operating collective growing operations to help ensure lawful operation. 1. Non-Profit Operation: Nothing in Proposition 215 or the MMP authorizes collectives, cooperatives, or individuals to profit from the sale or distribution of marijuana. (See, e.g., S l1362.765(a) ["nothing in this section shall authorize. . . any individual or group to cultivate or distribute marijuana for profit"]. 2. Business Licenses, Sales Tax, and Seller's Permits: The State Board of Equalization has determined that medical marijuana transactions are subject to sales tax, regardless of whether the individual or group makes a profit, and those engaging in transactions involving medical marijuana must obtain a Seller's Permit. Some cities and counties also require dispensing collectives and cooperatives to obtain business licenses. 3. Membership Application and Verification: When a patient or primary caregiver wishes to join a collective or cooperative, the group can help prevent the diversion of marijuana for non-medical use by having potential members complete a written membership application. The following application guidelines should be followed to help ensure that marijuana grown for medical use is not diverted to illicit markets: a) Verify the individual's status as a qualified patient or primary caregiver. Unless he or she has a valid state medical marijuana identification card, this should involve personal contact with the recommending physician (or his or her agent), verification of the physician's identity, as well as his or her state licensing status. Verification of primary caregiver status should indude contact with the qualified patient, as well as validation of the patient's recommendation. Copies should be made of the physician's recommendation or identification card, if any; b) Have the individual agree not to distribute marijuana to non-members; c) Have the individual agree not to use the marijuana for other than medical purposes; d) Maintain membership records on-site or have them reasonably available; e) Track when members' medical marijuana recommendation and/or identification cards expire; and f) Enforce conditions of membership by exduding members whose identification card or physician recommendation are invalid or have expired, or who are caught diverting marijuana for non-medicalllse: - 9- 14-13 8. Security: Collectives and cooperatives should provide adequate security to ensure that patients are safe and that the surrounding homes or businesses are not negatively impacted by nuisance activity such as loitering or crime. Further, to maintain security, prevent fraud, and deter robberies, collectives and cooperatives should keep accurate records and follow accepted cash handling practices, including regular bank runs and cash drops, and maintain a general ledger of cash transactions. C. Enforcement Guidelines: Depending upon the facts and circumstances, deviations from the guidelines outlined above, or other indicia that marijuana is not for medical use, may give rise to probable cause for arrest and seizure. The following are additional guidelines to help identify medical marijuana collectives and cooperatives that are operating outside of state law. I. Storefront Dispensaries: Although medical marijuana "dispensaries" have been operating in California for years, dispensaries, as such, are not recognized under the law. As noted above, the only recognized group entities are cooperatives and collectives. (9 11362.775.) It is the opinion of this Office that a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law, but that dispensaries that do not substantially comply with the guidelines set forth in sections IV(A) and (B), above, are likely operating outside the protections of Proposition 215 and the MMP, and that the individuals operating such entities may be subject to arrest and criminal prosecution under California law. For example, dispensaries that merely require patients to complete a form summarily designating the business owner as their primary caregiver - and then offering marijuana in exchange for cash "donations" - are likely unlawful. (Peron, supra, 59 Cal.App.4th at p. 1400 [cannabis club owner was not the primary caregiver to thousands of patients where he did not consistently assume responsibility for their housing, health, or safety].) 2. Indicia of Unlawful Operation: When investigating collectives or cooperatives, law enforcement officers should be alert for signs of mass production or illegal sales, including (a) excessive amounts of marijuana, (b) excessive amounts of cash, (c) failure to follow local and state laws applicable to similar businesses, such as maintenance of any required licenses and payment of any required taxes, including sales taxes, (d) weapons, (e) illicit drugs, (I) purchases from, or sales or distribution to, non-members, or (g) distribution outside of California. -11- 14-14 City of Clovis Chapter 5.22 MEDICAL MARlJUANA'" Sections: 5 .22.0 I Purpose and intent. 5 .22.02Definitions. 5.22.03Regulations applicable to the cultivation of medical marijuana. 522.04Regulations applicable to medical marijuana dispensaries. S.22.0SRegulations applicable to the consumption of medical marijuana. S.22.06Penalties and enforcement. S.22.07.Judicial review. "'Code reviser's note Ordinance 05-41J adds the provisions of this chapter as Chapter 5.21 The provisions have been editoriclily renumbered [Q prevent duplication of numbering. 5.22.0 I Purpose and intent. It is the pmpose and intent of this chapter to promote the health. safety. morals. and general welfare of the residents and businesses within the City by regulating the cultivation. distribution. and consumption of medical marijuana. (* 2, Ord. 05-40, eff. January S. 21J(6) 5.22.1J2 Defin itions. For purposes of this chapter, the following definitions shall apply: la)"Medical marijuana" is defined in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. Ib)"Cultivation of medical marijuana" means the growing of medical marijuana for medical purposes as defined in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. [cJ"Collective or cooperative cultivation" means the association within California of qualified patients. peronns with valid identification cards, and designated primary caregivers to cultivate marijuana for medic:.!l purposes as defined in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. IdJ"Medicalmarijuana dispensary" means any facility or location. whether fixed or mobile, alld any building or structure: (I) where medical marijuana is made available to, distributed by. or distributed to more than two (2) qualified patients, persons with an identitication carel, or primary caregivers whelc those persons are not immediate family 14-15 members residing in the same household: and (2) where medical marijuana is made available to. distributed by. or distributed to more than four (4) qualified patients, persons with ;.lll identification care!. 01" primary caregivers where those persons are immediate family members residing in the same household. The terms "qualified patients," "persons with an identification card." or "primary caregivers" are defined in strict accordance with California Health and Safety Cock Sections 11362.5 and 11362.7 et seq. A medical marijuana dispensary shall not include the following uses, as long as these uses comr1y strictly with Health and Safety Code Sections 11362.5 and 11362.7 et seq., and all other State and local laws pertaining to the uses, including zoning, permitting, and licensing requirements: (I)A clinic licensed pursuant to Chapter I (commencing with Section 1200) of Division 2 of the Health and Safety Code: (2),"- health care facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division.2 of the Health and Safety Code; (3)A residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.0 I (commencing with Section 1568.0 I) of Division 2 of the Health and Safety Code; (4)A residential care facility for the elderly licensed pursuant to Chapter 3.2 (commencing with Section 1569) of Division 2 of the Health and Safety Code: (5)A residential hospice, or a home health agency licensed pursuant to Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code. (e)"Immediate family member" means spouse, child, stepchild, brother, stepbrother, sister. stepsister, mother. stepmother. father, stepfather, grandmother. or grandfather. (ij 2, Ord. 05-40, efr January 5,20(6) 5 22.0:;Regulations applicable to the cultivation of medical marijuana. To the extent that the City is required to allow the cultivation of medical marijuana under State law, the rules set f0l1h herein shall apply. Nothing in this section shall be interpreted to permit medical marijuana dispensaries otherwise prohibited by this chapter or the City's Unchaptered Health, Safety and WelfJre Ordinance pertaining to. medical marijuana dispensaries. (a)Secure enclosed structure. The cultivation of medical marijuana shall at all times occur in ~l secure, locked. and fully enclosed structure, including a ceiling, roof or top. Ib)Max;mum of ninety-nine (<)<)) plants. The individual, collective, or cooperative cultivation of more than ninety-nine (99) marijuana plants. whether mature or immature, is a prohibited use in all zones of the City. 14-16 (c)tvhiximulll of twenty-four (24) plants except where cooperative growing is allowed. The individual. collective, or cooperative cultivation of more than twenty-four (24) marijuana plants, whether mature or immature, shall occur only in zones where cooperative cultivation is permitted. (d)Patient cultivation. For qualified pcnients and persons with identification cards, the following shall apply' each qualified patient and person with an identification card may cultivate in 'lilY zone six (6) mature or twelve (12) immature marijuana plants, or as otherwise recommended by a doctor in accordance with Section 11362.77, subject to the limits specified in this section. (e)Primary caregiver cultivation. For primary caregivers, the following shall apply: each primary caregiver may cultivate in any zone six (6) mature or twelve (12) immature marijuana plants. or as otherwise recommended by a doctor. for each qualified patient in accordance with Section 11362.77. subject to the limits specified in this section and subject [0 the medical marijuana dispensary prohibition. (nCollective or cooperative cultivation. For the collective or cooperative cultivation. such cultivation shall be confined to the M-I (Light [ndustrial) orthe R-A (Rural Residential) District within the City and be subject to the following additional requirements: ( I )Requiremenls in R-A District. The collective or cooperative cultivation in R-A Districts within the City shall OCCUr within an area not exceeding twenty feet (20') by twenty feet (20') and be not less than twenty-flve feet (25') from the nearest side and rear propeny line and not less than one hundred feet (100') from the front propelty line. (2)Relluirecl participation in the cultivation: No employees. All persons who associate together for the collective or cooperative cultivation must participate in the cultivation and the clllliv~ltiol1ll111St OCCllI" solely among members of the association. No employees, independent contractors. or other persolls may be utilized for the cultivation. (J)No compensatlon or sales: Distribution only among members. No member may compensate any other member to cultivate on its behalf. All distribution of the cultivated marijualta shall be solely among members of the association and shall be without compensation of any kind. Nothing in this subsection shall be deemed to prevent a primary caregiver from subsequently providing the cultivated marijuana to one of his or her qu~lIifiecl patients. . (4)Nn on-;..;ite cnnSlllllptioll. No Oil-site consumption of medical marijuana shall OCCllr except by llualified patients or persons with identification cards who live on the property as their principal place of residence. 14-17 (5)No cultivation in conjunction with a business: No sales of goods or services. The cultivation shall not occur in conjunction with any business. No products or services shall be sold from the property where the cultivation occurs. (6)Record requirements. The owner or lessee of the propel1y upon which the cooperative or collective growing occurs shall provide the following information to the Police Department in a form and manner approved by the Police Department: (a) full name, address, and telephone number(s) of the owner or lessee, including all alias names used in the previous ten (10) years; (b) the address where correspondence is to be mailed; (c) a list of all qualified patients, persons with identification cards, and primary caregivers participating in the cultivation; (d) a copy of all participant physician recommendations, identification cards, and primary caregiver evidence; (e) a sketch or diagram showing the property with the location of the cultivation and all buildings on the propelty, including a statement showing the total 'Irea occupied by the cultivation and the distance from the property lines: (f) a statement setting forth the number of plants to be cultivated and demonstrating that the cultiv,ltion cloes not exceed the maximums set fOtth under State law or this chapter. namely patient maximums and the cap of ninety-nine (99) plants; (gi a statement identifying all persons who will be tending to the cultivation and describing the cultivation pmcess: (h) such other information as the Police Department determines is necessary to ensure compliance with State law and this chapter. This information shall be provtded prior to the commencement of the collective or cooperative cultivation, except that for existing collective or cooperative cultivation operations, the information shall be provided within ten ( 10) days of the effective date of the ordinance codified in this chapter. The information pl'Ovided ,hall be updated upon any change within ten (10) clay'. The Police Department ,hall keep patient information confidential to the extent required by law. (71lnspections. The cultivation operation sha\1 be open for inspection by any law enforcement officer or City code enforcement oftlcer between the hours of 8:00 a.m. and <):00 p.m. seven (7) clays a week. or at any time upon responding to a call for service related to the propeny where the cultivation is occurring. (SlYinlations. In addition to the remedies provided in this chapter, if the co\1ective or cooperative cultivation occms in violation of this chapter or any other local Ol' State law or regul,tti"n. the owner Ot les,ee shall be prohibited from further co\1ective or coopercltive cultivation at ;lIlY location within the City for a period of one year after notice by the City of the violation. Subsequent violations shall result in a three (3) year prohibitioll. (~ 2, Ord. 05-40. ert'. January 5.2006) S.:n.04Regulations applicable to medical marijuana dispensaries. Mec1icalmarijuana dispensaries as defined in Section 5.22.02 are prohibited. (s 2, Ord. 05-40. ell. January 5.2006) S.22.1J5Regulations applicable to the consumption of medical marijuana. No person shall smoke. ingesL or otherwise consume medical marijuana in the City of Clovis unless such smoking. ingesting: or consumption occurs entirely within a priv::1te 14-18 residence or.on the premises of a private residence but out of public view "Out of public view" shall mean out of view from public rights-ot~way where members of the public are lawfully entitled to be. "Inside a private residence" shall mean inside habitable areas and sh,dlnot mclude garages. whether attached or detached. and other accessory buildings. Con,sumption in garages and other accessory buildings shall be outside of public view. (* 2. Orcl. OS-4IJ. etl January S. 20IJ6) S.22.06Penalties and enforcement. Violations of this chapter shall be considered misdemeanors and are punishable in accordance with Chapter 1.2 of the municipal code. Each and every day. or ponion thereof, a violation exists is a separate offense. The City may also pursue all applicable civil and administrative remedies, including but not limited to injunctive relief and ,-ldll1il1i~trlltive citations. Should a coul1 of competent jurisdiction subsequently determine that the criminal penalty provision renders this chapter unlawful. the City intends that the misdemeanor provision be severable from the remaining penalty provisions and the City will only pursue nonuiminal remedies for violations of this chapter. (* 2. Ord. OS-40, eff. January 5. 20(6) S.22.07Judicial review. Judic"ll review 01' a decision made under this chapter may be had by filing a petition for a writ ohnandate with the superior .court in accordance with the provisions of the California Code of Civil Procedlll'e Section I004.S. Any such petition shall be flied within ninety (90) davs arrel' the day the decision becomes tlnal as provided in California Code of Civil Proceclme Section 1994.6. which shall be applicable fol' such actions. (~2, Ol'd. OS-40. eff January 5. 20(6) 14-19 ARTICLE 33: MEDICAL CANNABIS ACT :')t:\.'. 3YII. Lkfillltiolls. Sec. ~U02. 0.'1cdi(.'aI Call11abi::: t.iuiddJllCS. S\..':...'. 3Y.iJ. Permit ReLluired rot" I\ledical C'annabis DisDensarv. ~,~C. 3304. Application tilt" tvledical Cannabis DisDellsarv Permil. Sc:c. .nilS. Relerral to Olhl':r LlclJarimcllls. SeLJ.~i!.(', Notice or Hearin~on Penllit N1Plication. 2~.:_.:L\U7. r.~suallce-2.f lvfcdical Cannabis Disoensarv Permit. .see }J..0iL Oneratiol.! R~llilirelnel1ts for L'....ledical Cannabis Dispensary. Sec... 33()l), ()rohibitcLI Opcrat'joll,'L ;i,~:))JfL...P.iiQ.I,JLQH~UD.iL i.~::..~:'...:...,.1.1 L~i..)ale (}(Tr~ll'1;.:fl'r of Permit'). ~ (:, .:._;:~,,;_~~.L2.~..Jll,~J~~L~l..lJ_~]J~~.~~~.L~)-iDJ.1~,. Su;, 3.1 j ~~. InsrK:cliut'l Lind Notices of ViolatioJl, $..~':::~ :.}.}.J__~+ .._~L~~~hH LQ.!1.~U]_Ef:U:~.nlIJJie~_.. See. 3) 15. f{evlj...:atioll and :)usnensioll 01' Pennit. SC(.:. 3316. Notice ~l11d I-karin12: fur Adlllil1istr~lt;ve Pellaltv and/or Revocation or S LlSfH..',I1:-:; 1011. ,S....'S::... .)? 1 "7. /\PDcals lo Buard or c<\ PDeals. Sec. .:U ! 0. Business LiCl..'Il;..;e and Busine::;,s Reei:;tratioll Certificate. .,'~L'~'> l~L~). i )isl..:hllillCfti alld Llahilitv. St..,,:, .132U. Scvcmhililv. SC',:. .:U21. /'\nnua! J{C!1\I!1 b\. Din:::ctl)!". SEe. 3301. DEFIN1TIONS For the purposes of this Anicle: (a) "Cannabis" means marijuana and all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It includes marijuana mfused in foodstutf. It does not include the mature stalks of the plant, tiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt.. derivative, mixture, or preparationof the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant are incapable of ge1111ination. (b) "City" means the City and County of San Francisco (c) lOConvlcted" means having pled guilty or having received a verdict of guilty, including a verdict foIlowmg a plea of nolo contendere, to a crime. (d) "Director" means the Director of Public Health or any individual designated by the Dlfector to act on his or her behalf. including but not li'11lted to inspectors. (e) "E.\ccssive protits" means the receipt ofcllnsideration ofa value substantially higher than. the reasonable costs of operating the faciliry. Such reasonable costs shall include expenses for rent or mortgage, utilIties, employee costs, fun1ihlre, maintenance, or reserves maintained 111 a segregated account set aside exclusively for potential financial or legal liability. 14-20 (r) "Medical cannabis dispensary" means anv association, cooperative, or collective of ten or more qualitied patients or primary caregivers that facilitates the lawful distribution ofmecl1cal cannabis. (g) "Medical Cannobis Identitlcation Card" or "ldentilication Card" means a document issued by the State Department of Health Services pursuant to California Health and Safety Code Sections 11362.7 et seq. or the City pursuant to Health Code Article 28 that identities a person authorized to engage 111 the medical use of cannabis and the person's designated primary caregiver, if any, or identifies a person as a prilnary caregiver for a medIcal cannabis patient. (h) "Permittee" means the owner. proprietor, manager, or operator of a medical cannabis dispen,ary 01' other Individual, c0l110ration, or partnership who obtains a pern1it pursuant to this Article. (i) "Pnmary caregiver" shall have the same definition as California Health and Safety Code Section 11362.7 et seq., and as may be amended, and which detlnes "primary caregiver" os an individual, designoted by a qualified patient or by a person with an identiticatlon card, who has consistently assumed responsibility for the housmg, health, or safety of that patient or person, and may include a licensed clinic, a licensed health care ['acility, a residential care facility, a hospice, or a home health agency as allowed by Caliti)rnia Health and Safety Code Section 11362.7(d){l-3). Ij) "Qualilied patient" shall have the same detinitiol1 as California Health and Safety Code Section 11362 7 et seq., and as may be amended, and which states that a "qualitied patient" means a person who is entitled to the protections of California Health and Safety Code Section 11362.5,but who does not have a valid medical cannabis identification carli. FOl the purposes of this Article, a "qualified patient who has a valid identification card" shall mean a person who tliltills all of the requirements to be a "qualified patient" under Calitornia f-1ealth and Safety Code Section 11362.7 et seq. and also has a valid medical cannabis identification card (Added by Ord. 275-05, File No 051250, App. 11/30/2005; Ord. 225-07, File No. 070(,67. App. 10/2/2(07) SEe. 3302. MEDICAL CANNABIS GUIDELINES. Pursuant to the authority granted under Health and Safety Code section 11362.77, the City and County of San Francisco enacts the following medical cannabis guidelines: (a) A qualified patient, person With a valid Identification card, or primary caregiver may possess no more than eight ounces of dried cannabis per qualified patient. 1n addition, a qualitied patient, person with a valid Identification card, or primary caregiver may also maintain no more than twenty-lour (24) cannabis plcnts par qua Ii tied patient or up to 25 slJuare feet of total garden canopy mea3ured by the combined vegetative growth area. (.b) I f a qualiried patient, person With an identification card, or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient, person with an identification card, or primary caregiver may possess an Jmount of cannabis consistent with the patienes needs. (cJ Only the dried mature processed nowers offemale cannabis plant or the plant conversion shall be considered when determining allowable quantities of cannabis under this section. (Added by Orc!. 275-05, File No 051250, App. 11/30/2(05) 14-21 SEe. JJOJ. PERN[IT REQUIRED FOR MEDICAL CANNABIS DISPENSARY. Except lor research facilities, it is unlawful to operate or maintain, or to participate therem. or to cause or to pem1it to be operated or maintained, any medical cannabis dispensary without tirst obtarning a tinal permit pursuant to this Article. It is unlawful to operate or maintain, or to partrcipate therein, or to cause or to pern1it to be operated or maintained, any medica] cannabis dispensary with a provisional pem1it issued pursuant to thiS Article. (Added hy Orc!. 275-05. File No. 05]250, App 11/30/2005; Ord. 225-06, File No. 0(,0032, Effective without the signature of the Mayor) SEC 3J04. APPLICATION FOR MEDICAL CANNABIS DISPENSARY PERMIT. (a) Every applicant for a medical cannabis dispensary pem1it shall tile an application with the Director upon a f0l111 provided by the Director and pay a non-renmdable pem1it application tee of $6691.00 to cover the costs to all City departments of investlgatmg and processing the application and any applicable surcharges, exclusive of tiling fees for appeals before the Board of Appeals. Beginning with fiscal year 2006-2007, the application fee may be adjusted each year, without further actIOn by the Board of Supervisors, to rellect changes in the relevant Consumer Price Index, as detern1ined by the Controller No later than April 15th of each year, the Health Department shall, in collaboration with the Tax Collector's Office, submit the application fee to the Controller, who shall apply the price index adjustment to produce a new application fee for the following year. No later than May 15th of each year, the Controller shall file a report with the Board of Supervisors reporting the new application fee and certifying that: (a) the application fee produces sut1icient revenue to support the costs of providing the services For which the annual fee is being charged and (b) the application fee does not produce revenue that exceeds the costs of' providing the services for \vhich the application fee is ch;lrged Notwithstanding the procedures set forth in this Section, the Board of Supervisors, in Its discletion, may modify the application fee by ordinance at any time. (b) The permit application form shall provide clear notice to applicants that the CaliFornia Fire Code includes a requirement, among others that may apply, that an establishment obtam a place of assembly pem1it if it will accommodate 50 or more persons based on its square footage. (e) The applicant for a medical cannabis dispensary pernlit shall set forth, under penalty of perjury, [allowing on the permit application. (I) The proposed location of the medical cannabis dispensary; (2) The name and residence address of' each person applying for the pennit and any other person who will be engaged in the management of the medical cannabis dispensary; (3) A unique identifying number from at least one government-issued fonn of identification, slIch as a SOCial secunty' card, a state driverls license or identification card, or a passport for of each person applying for the permit and any other person who will be engaged in the management of the medical cannabis dispensmy; (4) Written evidence that each person applying for the pennit and any other person who will be engagedm the management of the medical cannabis dispensary is at least 18 years orage: 14-22 (5) A II felony convictions at' each person applying for the pem1it and any other person who \vill be engaged in the management of the medical cannabis dispensary; (6) Whether cultivation of medical cannabis shall occur on the premises of the medical cannabis chspensary; (7) Whether smoking of medical cannabis shall occur on the premIses of the medical canl1tlbis dispensary: IS) Whether food will be prepared, dispensed or sold on the premises of the medical cannahis dlspensalY: and (9) Proposed security measures for the medical cannabis dispensary, including lighting and alarms, to ensure the safety of persons and to protect the premises from theft. (e) (fthe applicant is a corporation. the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation, and the names and residence addresses at' each of the ofticers. directors and each stockholder owning more than 10 percent of the stock of the c("1'orat;on. If the applicant is a partnership, the applIcation shall set torth the name and reSidence address of each of the partners. including limited partners. 1 l' one or more of the partners is a cOI1'oration, the proviSIOns of this Section pertainIng to a corporJtion apply. (t) The Director IS hereby authorized to require in the pem1it application any other infol111atioll including, but not limited to, Jny information necessary to discover the truth 01' the matters set forth in the application. (g) The Department of Public Health shall make reasonable etIorts to arrange with the Department of Justice and with DOl-certified fingerprinting agencies for fingerprinting services and criminal background checks for the purposes of verifying the information provided under Section 3304(c)(5) and certifying the listed individuals as required by Section 3307(c)(4). The applicant or each person listed in Section 3304(c)(5) shall assume the cost of tinge'lJrlnting and background checks, and shall execute all fom1sand releases reqUired by the DOJ and the DOJ-certified fingerprinting agency. (Added by Ord. 271-05, File No. 051747, ApI'. 11/30/2005; amended by Ord. 273-05, File No. 051748, ApI'. 11/30/2005, Ord. 275-05, File No. 051250, ApI'. 11130/2005; Ord. 225-06, File No. 060032, Elfective without the signature of the Mayor: Ord. 225-07, File No. 070667, API'. 10/2/2007) SEe 33IJ5 REFERRAL TO OTHER DEPARTMENTS. (a) Upon receivl11g a completed medical cannabis dispensary permit application and permit application fee, the Director shall Immediately refer the permit application to the City's Planning Department. Department of Buildlllg Inspection, l'vfayor's Office 011 Dlsabilrty, and Fire Department. (b) Said departments shall inspect the premises proposed to be operated as a medical cannabis dispensary and confirm the inti)1l11ation provided in the application and shall make separate written recommendations to the Director concenling compliance With the code:--; that they administer. (Added by Ord. 275-05. File No. 051250. API'. 11/30/2005; Ord. 225-06, File No 060032. Effective without the signature of the Mavor; Ord. 225-07, File No. 070667. App I IJ/2/2007) SEe 3306. NOTICE OF HEARING ON PERMIT APPLICATION. 14-23 (a) A ner receivmg written approval of the permit application fr0111 other City Departments as set out In Section 3305, and notice from the Department of Building Inspection that it has approved a building pemlit. the Director shall fix a time and place [01' a public hearing on th.e application, which date shall not be more than 45 days after the Director's receipt of the written approval of the pemlit application from other City Departments. (b) No fewer than 10 days before the date of the hearing, the permit applicant shall cause to be posted a notice of such hearing in a conspicuous place on the property at which the proposed medical cannabis dispensary is to be operated. The applicant shall comply With any requirements regarding the size and type of notice specified by the Director. The applicant shall maintain the notice as posted the required number of days. (Added by Ord 275-05, File No. 051250, App. 11/30/2005; Ord. 225-06, File No. 060032. Hfective without the signature of the Mayor) SEe. 3307. ISSUANCE OF MEDICAL CANNABIS DISPENSARY PER.1V1IT. (a) Within 14 days following a heming, the Director shall either Issue a provisional permit or mail a written statement of his or her reasons for denial thereof to the applicant. (b) In recOlllmending the granting or denying ofa provisional permit and in granting or denying the same, the Director shall give particular consideration to the capacrty, capitalization. complamt history of the applicant and any other factors that in their discretion he or she deems necessary to the peace and order and welfare ofthe public. In addItion, prior to granting (I provisional pelll1ir, the Dlrector shall review criminal history \I1fOIl1Hltion provided by the Department of Justice for the purpose of certifying that each person applying for the pellllit and any other person who will be engaged in the management of the medical cannabiS dispensary has not been convicted of a vlOlent felony within the State ofCalifOlllia. as defined in Penal Code section 667.5(c), or a crime that would have constituted a violent telony as defined in Penal Code section 667.5(c) ifcommitted within the State ofCalifolllia. However, the Director may certify and is",e u medical cannabis dispensary provisional penllit to any individualconvicted of slIch a crime It' the Director finds that the conviction occurred at least five years prior to the date of the permit application or more than three years have passed from the date of the telminatlon of a penalty for such conviction to the date of the pellllit application and, that no subsequent felony convictions of any nature have occurred. (c) No medical cannabis dispensary provisional pemlit shall be isslIed if the Director finds. (\) That the applicant has plOvided materially false documents or testimony; or (2) That the applicant has not complied fully with the provisions of this Article: or (3) That the operation as proposed by the applicant, ifpemlitted, would not have complied will all applicable laws, including, but not limited to, the Building, Planning, I-lousing, Police, Fire, and Health Codes of the City, including the provisions of this Article and regulations issued by the Director pursuant to this Article; or (4) That the permit applicant or any other person who will be engaged in the management of the medical cannabis dispensary has been convicted of a violent felony as defined in Penal Code section 667.5(c) within the State of Calif ami a or a crime that would have constitllted a violent felony as defined in Penal Code section 667.5(c) if committed within the State of California. However, the Director may Issue a medical 14-24 cannabis dispensary provislOllOl permit to any individual cOlwlcted of sucb a crime iftbe Director llnds that tbe conviction occurred at least five years prior to the date oftbe pemlit application or more tban tbree years bave passed from tbe date of the temlination ofa penalty lor sucb conviction to tbe date oftbe pemlit apphcation and, tbat 1;0 subsequent felony convictions of any nature bave occuned; or (5) Tbat a pcnnit for tbe operation ofa medical cannabis dispensary, wbich pemlit bad been Issued to tbe applicant or to any otber person wbo will be engaged in the m<1nagt'llltnt of the medical cannabis dispensary, has been revoked, unless more than five yeals bave passed from the date arthe revocation to the date of the application; or ((l) That the City bas revoked a pennit lor the operatlOil ofa business in the City which permit had been issued to the applicant or to any otber person who will be engaged in tbe 111zIllal;elllent of the medical cannabis dispensary unless more than five years have passed from the dale of tbe application to the date of the revocation. (d) Applicants witb provisional permits sball secure a Certificate of Final Completion and Occupancy as defIned in San Francisco Building Code Section 307 and present it to the Director, and tbe Director shall issue tbe applicant a final pemlit. ' (e) The Director shallnotity the Police Department of all approved pennn applications. (I) The rinal permit shall contain the following language: "Issuance of this pemlit by the City and County of San Francisco is not intended to and does not authorize the violation of Stale or Federal law." (Added hy Ord. 275-05, File No. 051250, App. 11/30/2005; Ord. 225-06, File No. 060032, Elfectlve without the signature of the Mayor; Ord. 225-07, File No. 070667, App 10/2/2007) SEe. 330S. OPERATlNG REOUIREMENTS FOR MEDiCAL CAl'TNABIS DISPENSARY. ("I Ivledic,,1 cannabiS dispensaries shall meet all the operating criteria for the chspensing Mmeclical cannabis as is required pursuant to Califoml3 Health and Safety Code Section 113627 et sell., by thiS Article, and by the Director's administrative regulations for the pet 1111tti ng and operation of medical cannabis dispensaries. (b) Mcdical cannabis dispensaries shall be operated only as collectives or cooperatives in accordance with Calitornia Health and Safety Code Section 11362.7 et seq. All patients or caregivers served by a medical cannabis dispensary sha1l be members of that medical Canl1.1blS dlspens;lIY's collective or cooperative. (c) The medical cannabis dispensary sha1l receive only compensation for actual expenses, II1cludll1g reasonable compensation incurred for services provided to qualified patients or primary caregivers to enable that person to LIse or transport c:J.nno.bis pursuant to Calilolllia Health and Safety Code Section 1\362.7 et seq., or for payment for ollt-of- pockel expenses incurred in providing those services, or both. Sale of medical cannabis for excessive profits is explicitly prohibited. Once a year, commencing in Nlarch 200S, each medical cannabis dispensary shall provide to the Department a written statement by the clispens.1r~/s pemlittee made under penalty of perjury attesting to the dispensarls compliance with this paragmph. (dl Medical cannabis dispensaries shall sell or distribute only cannabis manufactured '1I1d processed in the State ofCalifolllla that has not left the State before aniving at the llledil.:al cannabis dispensary 14-25 (e) It is unlawful for any person or association operating a medical cannabis dispensary under the provisions of this Article to pennit any breach of peace therein or any disturbance of public order or decorum by any tumultuous, riotous or disorderly conduct, or otherwise, or to permit such dispensary to remain open, or patrons to remain upon the premises, between the hours of 10 p.m. and 8 a.m. the next day. However, the Department shall issue pelllllts to two medical cannabis dispensaries pellllitting them to renHlln open 24 hours per day. These medical cannabis dispensaries shall be located in order to provide services to the population most in need of24 hour access to medical cannabiS. These medical cannabis dispensaries shall be located at least one mile from each other and shall be accessible by late night public transportation services. However, III no event shall a medical cannabiS dispensary located in a Small-Scale Neighborhood Comlllercial District, a Moderate Scale Neighborhood Commercial District, or a Neighborhood Commercial Shopping Center Distnct as defined in Sections 71 1,712 and 71 \ at. the Planning Code, be one of the two medical cannabis dispensmies pemlitted to remalll open 24 hours per clay. (I) Medical cannabis dispensaries lllay not dispense more than one ounce of dried cannabis per qualitied patient to a qualitied patient or primary caregiver per visit to the medical cannabis dispensary. Medical cannabis dispensaries may not maintain more than ninety-nine (99) cannabis plants in up to 100 square feet of total garden canopy measured by the combined vegetative growth area. Medical cannabis dispensaries shall use medical cannabis identification card numbers to ensure compliance with this provision. If a qualified patient or a primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or the primary caregiver may possess and the medical cannabis dispensary may dispense an amount of dried cannabis uncll11aintain a number cannabis plants consistent with those needs. Only the dried marure processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of cannabis under this Section. (g) No medical cannabis shall be snioked, ingested or otherwise consumed in the public right-ot~way within fifty (SO) teet ofa medical cannabis dispensary. Any person violatlL1g this provision shall be deemed guilty of an infraction and upon the convlctlOn thereof shall be punished by a fine of $1 00. Medical cannabis dispensaries shall post a sign near their entrances and exits providing notice of this policy. (h) Any cultivation ofmed!cal cannabis on the premises ofa medical cannabis di~pells;]ry must be conducted indoors. (I) All sales and dispensing of medical cannabis shall be conducted on the premises of the medical cannabiS dispensary. However, delivery of cannabis to qualified patients with valId identltication cards or a verifiable, written recommendation from a physician for medical cannabis and primary caregivers with a valid identification card outside the premises of the medical cannabis dispensary is permitted if the person delivering the cannabis is a qualified patient With a valid identification card or a veritiable, written recommendation from a physician for medical cannabis or a prin1ary caregiver with a valid identitication card who is a member of the medical cannabis dispensary. IJ) The medical cannabiS dispensary shall not hold or maintain a license from the State Department of Alcohol Beverage Control to sell alcoholic beverages, or operate a business that sells alcoholIc beverages. Nor shall alcoholic beverages be consumed on the 14-26 premises m on In the public rrght-of-wny within fifty feet of a medical cannabis dIspensary (k) In order to protect conlidentlality, the medical cannnbis dispensary shall mnintain records of all gualilied patlents with a valid identification card and primary caregivers wltl; a valrd identilication card using only the identification card number issued by the State or City pursuant to Califomia Health and Safety Code Section 11362.7 et seg. and City Health Code Artlc1e 28. (I) The medical cannabis dispensary shall provide litter removal services twice each day ()f uperation on and in front of the premises and, if necessary, on publIc sidewalks Within hundred ( 1 IJO) teet 0 t. the premises. (111) The medlc;]1 c<lnllnbis dispensary shall provide and maintain adequate security 011 the premises, Including lighting and alamls leasonably designed to ensure the safety of persons and to pl'Otect the premises from theft. (n) Signage for the medical cannabiS dispensary shall be limited to one wall sign not to exceed tell square feet in area. and olle identifying sign not to exceed two square feet in area, such signs shall not be directly illuminated. Any wall sign, or the identifying slgn if the medical cannabIS dispensary has no extenor wall sign, shall include the following l'lIlguage "Only indivlduols with legolly recognized Medical Cannabis Identification Cards or a verij'lable, written recommendation from a physician for medical cannabis may uhl<.lin C~ll1nJblS from medical cannabIS dispensaries, II The required text shall be a minIl11ulll of two I11ches III height. This requirement shall remain in effect so long as the system fOl distributing or assigning medical cannabis identification cards preserves the anonymity of the qualified patient or primary caregiver. (0) All Plint and electrolllc advertisements for medical cannabis dispensaries, including but not limIted to tlyers, general advertising signs, and newspaper'anu magazine advertisements, shall include the lollowing language' "Only individuals with legally recognized Medical Cannabis Identitication Cards or a verifiable, written recoll1lllend,-ltioll from ~l physician fur medical cannabis may ohtain cannabis from medical cannabis dIspensaries." The required text shall be a minimum of two inches in height c,'\cept in the case ofgent:'ra1 advertising signs where It shall be a mll1imum of six . l1lches in height. Oral advertisements for medica! cannabis dispensaries, including but not limited to racllo and television advertisements shall include the same language. This requirement shall re11l~lln in effect so long: as the system for distributing or aSSIgning medical cannabis Identllication cards preserves the anonymity of the qualilied patient or primary carver. (1') The medical cannobis dispensary shall provide the Director and all neighbors located within 50 feet of the establishment with the name phone number and facsimile number of an Oil-site cl)1lll11unity relations staffpelsoll to whom one can provide notice If there are npenlting problems associated with the establishment. The medIcal cannabis dispensary :;hal11llnke every good t:lith effort to t.'llcourage neighbors to call this person to try to solve operating problems, if any. betore any calls or complaints are made to the Police Department or other City ofticials. (q) Medical cannabis dispensaries may sell or distribute cannabis only to members of the medical cannabis dispensary's' collective or cooperative. ,I') Medical cannabis dispensaries may sell or distribute cannabis only to those members With a medical cannabis identilication card or a veritiable, written recommendation from 14-27 a physiclUn rar medical cannabis. This requIrement shall remain in effect so long as the system fur distributing or assigning medical cannabis identitication cards preserves the anonymity of the qualitled patient or primary caregiver. (s) It shall be unlawful tor any merltca] cannabis dispensary to employ any person who is not at least 18 years of age. (t) It shall be unlawful far any medical cannabis dispensary to allow any person who is not at least 18 years of age on the premises during hours of operation unless that person is " qual i tied patient with a valid identitic"tion card or primary caregiver with a valid identiticatlon curd or a verifiable, written recommendation [ro111 a physician for medical cannabis. (u) Medical cannabis dispensaries that display or sell dmg paraphemalia must do so in compliance with California Health and Safety Code GG 11364.5 and 11364.7. (v) Medical cannabis dispensaries shall maint"in all scales and weighing mechanisms on the premises in good working order. Scales and weighing mechanisms used by medical cannabis dispensaries are subject to inspection and certification by the Director. (w) Medical cannahis dispensaries that prepare. dispense or sell food must comply with and are subject to the provisions of all relevant State and local laws reg"rding the preparation. distribution and sale of taod. (\) The medical cannabis dispensary shall meet any specific. additional operating pi'Ocedures and measures as may be imposed as conditions of approval by the Director in order tt) insure th"t the operation or'the medical cannabis dispensary is consistent with the protection of the he"lth, safety and welfare of the community, qualitled patients and primary caregivers, anu will not adversely affect surrounding uses. (y) Medical cannabis dispensaries shall be accessible as required under the California Budding Code. Notwithstanding the foregoing, if a medical cannabis dispensary cannot shnw that it will be able to meet the disabled access standard for new constnrction, it shall meet the follow1l1g minimum stundards: (I) All accessible entrance; (2) r\ny ground tloor service area must be accessible, including an accessible reception counter and access aisle tQ the employee workspace behind; and, (3) An accessible bathroom. with a toilet and sink, if a bathroom is provided, except where an unreasonable hardship exemption is granted. (4) A "limited use/limited access" (LULA) elevator that complies with ASME A 17 1 Part XXV or an Article 15 elevator nlay be used on any accessible path of travel, but venical or inclined platfonn lilts may not. (5) Any medical cannabis dispensary that distributes medical cannabis solely through delivery to quali(ied patients or primary caregivers and does not engage in on-site distl ihutiOll or sales of medical cannabis shall be exempt from the requirements ofthi5 subsection 3308(y). (z) Any medical cannabis dispensary in" building that began the Landmark Initiation process (as coditied by Article 10 of the San Francisco Planning Code) by August 13, 2007 is exempt from the requirements set forth in section 3308(y) of this legislation until September 1. 2008. (aa) Prior to submission ofa building permit application, the applicant shall submit its ClpplicCltion to the Mayor's Oftice on Disability The Mayor's Office on Disability shall 14-28 review the application [or access compliance and forward recommendations to the Department of Building Inspection. (Added by Ord. 275-05, File No. 051250, App, 11/30/2005; Ord, 225-07, File No, 0706(,7, App 10/2/2007) SEe. 3309 PROHIBITED OPERATIONS f\llmedical cannabis lhspcnsarics operating in violation of California Health and Safety Code Sections 11362.5 and 11326.7 et seg., or this Article are expressly prohibited. No entity that distributed medicol cannabis prior to the enactment of this Article shall be deemed to have been a legally established use under the provisions of this Article, and such use shall not be entitled to claim legal nonconforming status for the purposes of permItting, (Added by Ord. 275-05, File No. 051250, App. 11/30/2005) SEe. 33 I 0 DISPLAY OF PERMlT Every penlllt to operate a medical cannabis lhspensary shall be displayed in a conspicuous place within the establishment so that the pennit may be readily seen by individuals entenng the premises. (Added by Ord, 275-05, File No 051250, App 11/30/2005) SEe. 3311 SALE OR TRANSFER OF PERMlTS, (al Upon sale, transfer or relocation 01' a medical cannabis dispensary, the pem1it and license ("r the establishment shall be null and vOid unless another pennil has been issued pursuant to this Article: provided, however, that upon the death or incapacity of the penlllttee. the medical cannabis dispensary may continue in business for six months to allow for an orderly transfer of the pelllli!. (b) I f the peml i ttee is a corporation, a transfer 0 t' 25 percent of the stock ownership of the permittee will be deemed to be a sale or transfer and the pemlit and license for the establishment shall be null and void unless a permit 11as been issued pursuant to this Article: provided, however that this subsection shall not apply to a permittee coqJoration, the stock ohvhich is listed on a stock exchange in this State or in the City of New York, State orNew York, or which is required by law, to tile periodic reports with the SecuritIes and Exchange Commission. ('\dded by Ord, 275-05, File No, 051250, App. 11/30/2005) SEe 3312. RULES AND REGULATIONS, (a) The Dlrector shall issue rules and regulations regarding the conduct of hearings concerning the denial, suspension or revocation of pemlits and the imposition of administrative pen31tles on medical cannabis dispensanes. (b) The Director 1113Y issue regulations governing the operation of meJical cannabis dispensaries. These regulations shallll1clude, bUlneednol be lImited ,to: (I) L\ requirement that the operator provide patients and cllstomers with information regarding those activities that are prohibited on the premises; (2) A requirement that the operntur prohibit patrons from entering or remaining on the prell1ises ifrhey are in possession Oral' are consllming alcoholic beverages or are under (he intluence of alcohol, 14-29 (J) A requirement that the operator require employees to wash hands and use sanitmy utensils when handling cannabis; (4) A description of the size and type of notice of hearing to be posted in a conspicuous pl"ce on the property at which the proposed medical cannabis dispensary is to be "pcrated and the number of days said notice shall remain posted; and (5) A descnption ot'the size and type of sign posted near the entrances and eXits of medical cannabis dispensaries providing notice that no medical cannabis shall be smoked, ingested or otherwise consumed in the public right of way within fifty (50) feet ofa medical cannabis dispensary and that any person violating this policy shall be deemed gUilty of an infraction and upon the conviction thereof shall be punished by a fine of $100 (c) Failure by an operator to do either ot'the following shall be grollnds for sllspension or revocation of a medical cannabis dispensary permit: (I) comply with any regulation adopted by the Director under this Article, or (2) give free access to areas of the establishment to which patrons have access during the hours the establishment IS open to the public, and at all other reasonable times, at the direction of the Director, or at tbe directron ot' any City tire, planning, or building official or inspector for inspection with respect to the laws that they are responsible for enforcing, (f\dded by Ord. 275-05, File No 051250, App, 11lJ0/2005; Ord, 225-06, File No, 0600J2, Etlective Without the signature of the Mayor) SEe JJ IJ INSPECTION AND NOTICES OF VIOLATION (a) The Director may inspect each medical cannabis dispensary regularly and based on complamts, but in no event fewer than two times annually, for the purpose ofdetemlining compliance With the provisions of this Article and/or the nrles and regulations adopted pmsuant to thiS Article. I t' informal attempts by the Director to obtain compliance with the proviSions of this Article faiL the Director may take the following steps: ( I) The Director lllay send written notice of noncompliance with the provisions of this Article to the operator ot'the medical cannabis dispensary, The notice shan specifY the steps that lllUSt be taken to bnng the establishment into compliance, The notice shall speci fy that the operator has] 0 days in which to bring the establrshment mto compliance (2) If the Director inspector determines that the operator has corrected the problem and is in compliance with the provisions of thiS Article, the Director may so inform the operator. (J) If the Director determines that the operator failed to make the necessary changes in order to come into compliance With the provisions of this Article, the Director may issue a notIce ofVlOlatioIl. (b) The Director may not sllspend or revoke a pemli! issued pursuant to this Article, impose all administrative penalty. or take other enforcement action against a medical cannabis dispensary until the Director has issued a notice of violation and provided the operator an opportunity to be heard and respond as provided in Section 3J 16. (c) If the Director concludes that announced inspections are inadequate to ascertain compliance with this Article (based on public complaints or other relevant circumstances), the Director may use other appropriate means to inspect the areas of the establishment to which patrons have access. If such additional inspection shows 14-30 noncompliance, the Director may issue either a notice ofnoncomplwnce or a notice of violation. as the Director dee.llls nppropriate. (el) Every person to whom a permit shall have been granted pursuant to this Article shall post a sign III a conspicuous pbce in the medical cannabis dispensary. The sign shall state that it is unlawtlil to refuse to permit an inspection by the Department of Public Health, or any City peace. fire, planning, or building official or inspector, conducted during the hours the establishment is open to the public and at all other reasonable tmles, of the areas of the establishment to which patrons have access. (e) Nothing in this Section shall limit or restrict the authority ofa Police Officer to enter premises licensed or permitted under this Article (i) pursuant to a search warrant signed by a magistrate and issueclupon a showing of probable calise to believe that a crime has heen COllllllltted or attempted, (II) without a wan-ant in the case of an en1ergency or other exigent circumstances. or (iii) as part of any other lawful entry in connection with a criminal investigation or enforcement action. (Added by Ord. 275-05, File No 051250, App. 11IJO/2005) SEe. JJ 14. VIOLATIONS AND PENALTIES. (a) Any dispensary, dispensary operator or dispensary manager who violates any provisioll of thIs Article ur any ruk or regulation adopted pursuant to this ArtIcle may. a ttel' hell1g provided notice and an oppnl'tunity to be heard, be subject to an administrative penalty not to exceed $1.000 for the tirst violation of a provision or regulation In a I1-month period. $2.500 for the second violatlOl1 of the same provision or I'egulation in a 12-month period; and $5, 000 for the third and subsequent violations of the some provislOll Ot regulation in a 12-month penod. (b) The Director may not Impose an administrative penalty or take other enforcement action under this Article against a medical cannabis dispensary until the Director has issued a notice of violation and provided the operator an opportunity to be heard and respond as provided in Section 3316. (c) Nothing herein shall prohibit the District Attorney from exercising the sole discretion vested in that officer by law to charge an operator, employee, or any other persoll associated with a l11edlc~1] cann8bls dispensary with violating this or any other local or State law. (Added by Ord. 275-05. File No 051250, App. 11/30/2005) SEe 3315 REVOCATION AND SUSPENSION OF PERMIT (a) Any pel'mit issued tlJr a medical cannabiS dispensary may be revoked, or suspenclecl I"r up to 3D days. by the Director if the Dil'ector determines that: ( I) the manager. operator or any employee has violated any provision of this Anic]e or any regulatioll issued pursuant to this Article~ (2.) the permittee has engaged in any conduct in connection with the operation of the medic"l cannabiS dispensary that violates any State or local laws, or any employee of the permittee has engaged in JllY conduct that violates any State or local laws at permittee's medical cannabis dispensary, and the pellnittee had or should have had actual or constructIve knowledge by clue ddigence that the illegal conduct was occurring: (3) the permittee bas engaged in any material misrepresentation when applying for a permit: 14-31 (4) the medical cannabis dispensary is being managed, conducted, or 111aintained without regard for the public health or tbe health of patrons; (5) the manager, operator or any employee has refused to allow any duly authorized City otlicial to inspect the premises or the operations of the medlcal cannabis dispensary; (6) based on a determination by another City department, including the Department of Buildmg Inspections, the Fire Department, the Police Department, and the Planning Department. that the medical cannabis dispensary is not in compliance with the laws under the jurisdiction of the Department. (b) The Director may not suspend or revoke a pem1it issued pursuant to this Article or rake other enforcement action against a medical cannabis dispensary until the Director has Issued a notice of violation and provided the operator an opportunity to be heard and respond as provided in Section 3316. (e) Notwithstanding paragraph (b), the Director may suspend summarily any medical c,mnabis dispensary pe\ll1it issued under this Article pending a noticed hearing on revocation or suspensIOn when in the opinion of the Director the public health or safety requires such S1ll11l11nry suspension. Any affected permittee shall be given notice OfSllCh sUlllmary :-1uspensioll in writing delivered to said pell11ittee in person or by registered letter. (dl [fa pel1l1lt is revoked no application for a medical cannabis dispensary may be submitted by the same person tl)r three years. (Added by Ord 275-05, File No. 05 \ 250, App. 11/30/2005) SEe. 3316 NOTiCE AND HEARlNG FOR ADMINiSTRAT1VE PENALTY AND/OR REVOCATION OR SUSPENSION (al [r the Director determines that a medical cannnbis dispensary is operating in vlo[allon ot' this Article and/or the rules and regulations adopted pursuant to this Article, he ()I" she shall issue a notice ofviolatlllll to the operator of the medica! cannabis dispt::l1sary (hi The notice oCviolation shall include a copy of this Section and the rules and regulations adopted pursuant to this ArtIcle regarding the conduct of hearings concen1ing the denial. suspension or revocation ot'permits and the imposition of administrative penalties on medical cannabis dispensaries. The notice of VIolation shall include a statement or' any infollllal attempts by the Director to obtain compliance with the provisions ot' this Article pursuant to Section 3313(a). The notice of violation shall informthe operator that: (I) The Director has made an mitial determination that the medical cannabis dispensary IS operating in violation of this Article and/or the rules and regulations adopted pursuant to thiS Article: and (2) The alleged acts or lailures to act that constitute the baSIS for the Directors initial determination: and (3) That the Director intends to take enforcement action against the operator, and the nature 01' that action including the administrative penalty to be imposed, if any, and/or the slIspension or revocation of the operatur's permit: and (-4) Th,lt the operator has the right to request a hearing before the Director within fifteen ( IS) dClYs 01' receipt ai' the notice ot' violation in order to allow the operator an opportunity 14-32 to show that the medical cannabis dispensary is operating in compliance with this Article ;:111d/or the rules and regulations adopted pursuant to this Article. Ic) I f no request tix a hearing is. tiled with the Drrector within the appropnate period, the ,nitial determination shall be deemed linal and shall be effective fifteen (15) days after the noLlce or- initial c1eter1111118tiol: was served on the alleged violator. The Director shall issue an Order imposIng the enfl,rcement action and serve it upon the party served with the nutice of initial determination. Payment of any administrative penalty IS due within 30 days of service of the Director's Order. Any administrativepenalty assessed and received in an action brought under this Article shall be paid to the Treasurer of the City and COllllty of San Francisco. The alleged violator against whom an administrative penalty is imposed also shall be liable for the costs and attorney's fees incuned by the City ill hringing any civil action to enforce the provisions of this Section, includlllg l)htallling;l COLllt order reqUIring piJyment of the administrative penalty. (dl If the alleged violator liles a timely request 101 a hearing, within fifteen (15) days of receipt 01' the request the Director shall notify the requestor of the c1ate, time, and place t.)fthe hearing. The Director shalll11ake available all documentary evidence against the medical camiabis cbspensalY no later than tifteen (15) days prior to the hearing. Such heanng shall be held no later than forty-live (45) days after the Director receives the request, unless time is extended by mutual agreement of the affected parties. Ie) At the hearing, the medical cannabis dispensary shall be provided an opportunity to refute all evidence against it. The Dlrector shall conduct the hearing. The hearing shall be cnllllUCled pursuant to rules and regulations adopted by the Director. (I) Within twenty (20) days oFthe conclusion of the hearing, the Director shall serve I,.vritten notice of the Director's deciSion un the alleged "violation. [fthe Director's decision is that the alleged violator must pay an administrative penalty, the notice of decision shall state that the recipient has ten (10) clays In which to pay the penalty Any administrative penalty assessed anel received III an action brought under this Article shall be paid to the Treasurer ofrhe City. The alleged violator against whom an administrative penalty is imposed also shall be liable tor the costs and attomey's fees incuned by the City in bringIng any civil action to. enforce the provisions of this Section, Including obtaining a cuurt nrder requiring payment of the administrative penalty. (Added hy Ord. 275-05, File N<J. 051250. App. 11/3012005) SEe. 3317 APPEALS TO BOARD OF APPEALS. (el) Right ol'f\ppeal The tinal decision ot'the Director to grant, deny, suspend, or revoke J permit, or to impose adl11ll1isrrative sanctions, as provided Il1 this A111cle, may be appealed to the Board of Appeals III the manner prescribed in Article I of the San Francisco Business and Tax Relations Code. An appeal shall stay the action of the Director. (b) Hearing. The procedure and requirements govenling an appeal to the Board of Appeals shall be as specitiedlll Article I of the San Francisco Business and Tax Regulations Code. (r\dded by Ord 275-05, File No. 051250, App. 11/3012U05) SEC 331 S BUSINESS LICENSE AND BUSINESS REGISTRA nON CERTIFICATE. 14-33 (a) Every medical cannabis dispensary shall be required to obtain a business license I'rom the City in compliance with Article 2 of the Bus mess and Tax Regulations Code. (b) Every medical cannabis dispensary shall be required to obtain a business registration certilicate li'om the City In compliance with Article 12 of the Business and Tax Regulations Code. (Added by Ord 275-05. File No 051250, App. 1)/30/2005) SEe. 3319. DISCLAIMERS AND LIABILITY. By regulating medical cannabis dispensaries. the City and County of San Francisco is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its ofticers and employees. an obligation for breach of which it is liable in \1Hllley damages to <111Y person \.'lho Clall11S that such breach proximately caused injury. To the tltlle,1 exlenl permitled by law, the City shall assume no liability whatsoever, and expressly does not waive sovereign iml11unity, with respect to the pellllitting and licensing provisions ot' Ihis Article. or for the activities of any medical cannabis dISpensary. To the tltllest extent permitted by law, any actions taken by a public officer or employee under the provisions of this Article shall not become a personal liability of any public oftlcer or employee of the City. ThiS Article (the "Medical Cannabis Act") does l1<)t authorize the violation of state or federal law. (Added by Ord. 275-05. File No 051250. App. 1)/30/2005) SEe 3320 SEVERABILITY It' any provlsiol1 of this Article or the application of any such provision to any person or circumstance, shall be held invalid. the remainder of this Article, to the extent it can be given etfect, or the application of those provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby, and to this end the provisions of this Article are severable (f\dded by Ord. 275-05. File No 051250, App. 11130/2005) SEe. 3321 ANNUAL REPORT BY DIRECTOR (a) Ol1ce a year. commencing in January 2007, the Director shall make a report to the Board of Supervisors that: ( I) sets forth the number ancllocallon of medical cannabis dispensaries currently permitted and operating Il1 the City; (2) sets torth an estimate of the number of medical cannabis patients currently active in the City; (3) provides an analysis of the adequacy of the cun'ently pel111itted and operating medical cannnhls dispensaries in the City in meeting the 111edical needs of patients; (4) pmvicles a summary of the past year's violations of this Article and penalties ~lssessed. (11) Upon receipt oflhls Report. the Board of Supervisors shall hold a hearing to consider whether any changes tn City l.:1w, including but not limited to amendments to the Health Code or Planning Code. are warranted. (Added by Ord 275-05, File No. 051250, App. 1)/30/2005) 14-34 19.36 1 (is Medical Marijuan" Dispensaries. Fage 1 of 3 !,i'\t'~st iHfiJiYWDGd Munidpai Code t Jp Pn:~'/j(:>.U$ Nf.'rt Mai;c Search Print i.ilk: 19 Zoning.Or.di!J<J!1cc .t.rtjr::[e 1.~:3 Sit~'LPJ.~nning_?lld c;~n~[alJ~'€;y.r;lOj:Flle.nt Stanc!ards (hapter 1936 Standards for Spt~cific Land Uses 19.36, 16"..M.ed ica..I./-larij ua na.[).ispe"sa.r:i.es,. A. AjJ/dicuhilify, The .,tancbrds and criterlJ. established in this section apply to any site. facility. [oention, 11.'iC. c()()pcralivc or entity in lhe City of \Vc,c;t Hollywood that distributes. dispenses, stores, sells, exchanges. prnn:.-':scs. deliver.<;, gives away. or cultivates l11~lrijllal1a for medical purposes to qualifieu patients, health care prl)\"idcr,...;. paliellts' pril11<1ry carcgivcr.<;, or physicians. pursuant to Health & Safety Code Section 11362.5 (ad(lpteLl :'IS Proposition 215. the "'Compassionate u.c.;e Act or 1996") or any state regulations Jdopted in 1"1Inhcrance thereof. Nothing in this section shall be interpreted to contlict with provisions of Health & Safety Code Section 1136'2.5 et set;. B Defil/itio/l.\'. For purposes or the urdinance codified in this section, a "medicalmarijuana dispensary" IllCclll.c.; ,1 facility where marijuana is made avaibblt:: for medical purposes in accordance with Health & Safety Code SectIon 11362.5 The word "marijuana" shall have the same meaning as the definition of that word in Health l\.. S:'lJ't:ty Code Section IIOIS. C. Perll/ir Relfll;,.('d A major conditional u.c.;c permit shall be required to establish OJ. medical marijualla dispcll.c.;:'lry. D Locor;o/l Crirer;u. A proposedll1cclicallllarijuana dispensary shall be located in compliance with the 1"111\( lwillg rcquil Clllents: I. The use ,.,hall not be located within a I.OOO-foot radius of any other l1lcdicalmarijuana dispensary located \vilhin or outside the city. J The use shaJJnot be located within a JOG-foot radius of a church. temple, or other place.s used exclusively 1'01' religious worship. or a rl:'lygroullCl. park. chilli day care facility. or school that is located within or (1l1t.-,idc the city For the purpo.<.;c.c.; of this requirement. '"school" shall mean any property containing a structure wlliLh is u.c.;cll for educatioll (11' instructioll. whether public or private. at grade levels preschool anL! kindergarten thl()u~h 12. .) The di.'.qJt::nsary .c.;hall have il.c.; pril1l<lry frontage on one of the following commercial streets: Santa l'v!ollica Boulevard. Sunset Boulevard. La Cienega Boulevard. Melrose Avenue. Beverly Avenue. La Brea AVt:11UC or Fairfax Avenue. The lIse ,.,hallnot have its primary frontage on a local residential street providing local circulatioll. E. Dc\'eioj1mellf w:d Perf()rnlWICe Srwu/unls. All dispensaries in the City of West Hollywood shall operate in conformance with the following standards to assure that the operations of medicall11arijuana dispcn.qrie.c.; tire in compliallce with Calirorll1tl Ia\V and to mitigate the adverse secondary effects from operJlion.s nr dispensaries. DisjlCllsallcs shall provide adequate .c.;ecurity and lighting on site to ensure the safety of persolls Qlld protecl the premises from theft at all times. 2. All security guards employed by di.c.;pensari-.:s shaJJ be licensed and possess a vo.lid Department of COllsumer AITairs "Security Guard C,llcl'" at all times. Security guards shall not posse,';s firearm,'; or tazers. _1 Di.c.;pensaries ,.,hall provide <lllcighborhood security guard patrol for a two-block radius surrounding the dispensary during all hours of operation. '-1-. No rcco1l11l1cmlatinns I'ur medicll Illarijuana .c.;hall be issued on-site. http://L[code.lIs/cl)cles/westho[lywood/view.php''tb~ic~RJ-19_3-19_36-19_36_[ 65&frames. 7/1 7/2009 Il)3h. 165 Medical Marijuana Dispensaries. Page 2 of 3 ), Then:::: shall be nn on-site _..;ales or alcohol or tobacco. and no on-site consumption of food. alcohol, l()bacco or 1llariju<.ltla by patron,,,. 6. Hours of operation shall be limited to. Monday - Saturday, 10.00 a.m. - 8.00 p.m. and Sunday noon - 7 on p.m. 7. Dispen,c;aries shall only c1i:-i[lense medical marijuana to qualified patients and their caregivers as dcrillCd hy CJlifomiJ Health ane! Sal'ety Cock Section 11362.5 (Proposition 21"5). This shall include po~se.c;sion Ilrll valid dnclo(s rccollll1H..:nclalinl1. nut more thall one-year old, for medical marijuana use by the patient. ~ Dispensaries ."hall notil'"y patrons of the following verbally and through posting of a .'iign in a l'llIISI)icuuus l(lCalillll I. Use 01" medical marijuana :::11:111 be limited to the patient identified on the doctor's rccullllllcndatil)n Secondary sale, barter or di.'>tribution of medical marijuana is a crime and can lead to arrest. II Patrons must immediately leave the site and not consume medical marijuana until at home ur in an etluivalent priv.lle location. Di,"pensary stalT slulll1lonitor the site and vicinity to ensure compliance. iii. Forgery or medical documents is a felony crime. CJ. Dispcn.<.;aries shall not provide marijuana to any individual in an amount not con~istent with I1L'I"."\ \[1.11 l1ledicalll...;e. 10 Dispellsaries shallnol store more than two hundred dollars ($200.00) in cash reserves overnight on lhe pre11li,..;es ;}nJ ,..;hallmakc at least one tbily bank drop th;}t includes all cash collected on that business day. II. Any palient under 18 year."; or age ..-hall be accompanied by a parent or legal guardinn. 12. Di..-pellsaries shall provide liJW enl-'orcement and all neighbors within] 00 feet of the dispensary with the name Jllcl phone number of an on-site comlllunity relations staff person to notify if there are operational j1mbkm:-i with the c~tablishment. I:'. Each dispensary opel ator(;.;) ;.;hall complete a criminal background check, 14 Di...;pell...;ary operalor{...;) Illu;.;l alLend the bi-mollthly coordination meetings with the Los Angele;.; Cllllllly ShcI'ilrs De[larLlllent ant! City staff which are organized by the City's Public Safety Division. 15. The es,terior appcarann: ur the ,"truclurc ,..;hall be compatible with commercial structures already cunslruClcc! or under cunstructiun within the immedi::tte neighborhood. to ensure ::tgainst blight. deterioration. or sub."l~lIllial diminishment or impairment of property value:; in the vicinity. 16 \Ve,<.;l Hollywoud City Code Enforcement Officers, \Vest Hollywood Sheriff's Deputies or other a;;Cllls Ilr employee,,, or the City rcque.,>ling admi,'>sion for the purpose of determining compliance with these :'l,\llLlard.... shall be givenllllrestrictcd access. 17 The proposed u...;c ,,,hall comply with all other applicable property development Llllcl design .";lantlart!;.; Ill' the MUllicip~ll Cotk and wilh the provisions of Hezdth & Safety Cocle Section 11362.5 (aclopted a~ PI(\l'n~iliClIl 215. the "Culllp'-l~siollate U...;c Act of 19')6") 01 Jny State regulations adopted in furtherance thereof. F NUl/lericol Limir No more than Four (4) l11eclicalmarijuJna dispens::lrie~ shall be permitted to operate ill the Cily al any limt:. Nutwith.,>tanding the foregoing, a medical marijuana dispensary thal wa." open and in uperation on January 16,2007 and does not meet the location requirements of thi~ section ."hall bt: Jllowecl to conlinue operJlion in nccorc!ance with the regulations for non-conforming land uses in Scclillll j().72..050 until December J I. lOO\) at which time it shJll cease all operations at the location: however, unlillhallilllc .";llch dispensaries shall comply with nil other standards of Section [9.36 !65. Any cli,..;pensary that doc."; Ilt)l meet the location rcquil'elllcnts or' this section and i..- discontinued or ha~ cC~lsed operation...; for 30 days ()r llll)rC shall nol be rc-establishecl on the ."ite and any further use of the site shall comply with all applicable I1ttp:l/qcocie.ll.,lcncies/westhnllywoocilview .phpot1~c~I~-19_3-19_36-19_36_165&frames.. 71l7/2009 lcur, 165 Meclic"j tv!"riJlICln" Dispensaries Page 3 of 3 p\'nvi.-:inll.<..; ll]' the Municip;:tl Code. (Qrcl 07 -743 ~ 6. 2007) http.//llcncle lIs/cncles/westhollywoocl/view.php');b~lc~i~-19_3-19_36-19_36_16S&fromes.. 7/17/2009 Page I of2 Title 4. BUSII'JESS R.EGUlATION Chapter 4.20 MEDICAL MARIJUANA DISPENSARIES Anaheim Municioal Code Chapter 4.20 MEDICAL MARIJUANA DISPENSARIES Sections: 4.20.010 Purpose and findings. 4.20.020 Definitions. 4.20.030 Medical marijuana dispensary prohibited. 4.20.040 Use or activity prohibited by state or federal law. 4.20.010 PURPOSE AND FINDINGS. The City Council finds that federal and state laws prohibiting the possession, sale and distribution of marijuana would preclude the opening of medical marijuana dispensaries sanctioned by the City of Anaheim, and in order to serve public health, safety, and welfare of the residents and businesses within the City, the declared purpose of this chapter is to prohibit medical marijuana dispensaries as stated in this chapter. (Ord. 6067 9 I; August 8, 2007.) 4.20.020 DEFINITIONS. The following terms and phrases, whenever used in this chapter, shall be construed as defined in this section: .010 "Identification card" is a document issued by the State Department of Health Services which identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any. .020 "Medical marijuana" is marijuana used for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code Section 11362.7. .030 "Medical marijuana dispensary or dispensary" is any facility or location where medical marijuana is made available to and/or distributed by or to three or more of the following: a qualified patient, a person with an identification card, or a primary caregiver. Each of these terms is defined herein and shall be interpreted in strict accordance with California Health and Safety Code Sectionsl1362.5 and 11362.7 et seq. as such sections may be amended from time to time. http://www.amlegal.com!nxtJ gateway. dll/Califoihi\dnaAheim!ti tIe4businessre gulation/ chap... 7/27/2009 Page20f2 .040 "Primary caregiver" is the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person. .050 "Physician" is an individual who possesses a recogmtlOn in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient's medical record the physician's assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate. .060 "Qualified patient" is a person who is entitled to the protections of California Health and Safety Code Section I 1362.5, but who does not have an identification card issued by the State Department of Health Services. (Ord. 6066 S I; August 8, 2007.) 4.20.030 J'vlEDICAL MARIJUANA DISPENSARY PROHIBITED. It shall be unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana dispensary in the City of Anaheim. (Ord. 6066 S 1; August 8, 2007.) 4.20.040 USE OR ACTIVITY PROHIBITED BY STATE OR FEDERAL LAW. Nothing contained in this chapter shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law . (Ord. 6066 S I; August 8, 2007.) Disclaimer: This Code of Ordinances and/or any other documents that appear on this sile may not reflect the most current legislation adopted by the Municipality American Legal Publishing Corporation provides these documents for informational purposes only These documems should not be relied upon as the definitive authority for local legislation. Additionally, the formatting and pagination 01 the posted docurnen!.s varies from the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action being tal,en. For further information regarding Ule official version 01 any of this Code of Ordinances or other documents posted en this site, please contact the Municipality directly or contact American Legal Publishing toll-free at 800-445-5588. @2008 American Legal Publishing Corporation techSUDDort(a)amleaal.com 1.800.445.5588. http://www.amlegal.com/nxt/ gateway. dlVCalifoihildaaaheim/ti tle4businessre gulationl chap... 7/27/2009 ~ ~ ~ ~ Special Notice STATE BOARD OF EQUALIZATION Information on Sales Tax and Registration for Medical Marijuana Sellers 450 N Street Sacramento California 95814 1. What is the Board of Equalization's (BOE) policy regarding sales of medical marijuana? The sale of medical marijuana has always been considered taxable. However, prior to October 2005, the Board did not issue seller's pennits to sellers of property that may be considered illegal. 2. Is this a change of policy? In October 2005, after meeting with taxpayers, businesses, and advocacy groups, the Board directed staff to issue seller's permits regardless of the fact that the property being sold may be illegal, or because the applicant for the permit did not indicate what products it sold. This new policy was effective immediately. 3. What does the amended BOE policy say? BOE policy regarding the issuance of a seller's pennit was amended to provide that a seller's pennit shall be issued to anyone requesting a permit to sell tangible personal property, the sale of which would be subject to sales tax if sold at retail. Previously, the Board would not issue a seller's permit when sales consisted only of medical marijuana. 4. Who is expected to comply with the BOE policy by applying for a seller's pennit? Anyone selling tangible personal property in California, the sale of which would be subject to sales tax if sold at retail, is required to hold a seller's permit and report and pay the taxes due on their sales. 5. Over-the-counter medications are subject to sales tax, but prescribed medications are not. Where does medical marijuana,lIrecommended" by a physician, fit in? The sale of tangible personal property in California is generally subject to tax unless the sale qualifies for a specific exemption or exclusion. Sales and Use Tax Regula- tion 1591, Medicines and Medical Devices, explains when the sale or use of property meeting the definition of "medicine" qualifies for exemption from tax. Generally, for an item's sale or use to qualify for an exemption from tax under Regulation 1591, the item must qualify as a medicine alId the sale or use of the item must meet specific conditions. Regulation 1591 defines a medicine, in part, as any substance or preparation intended for use by external or internal application to the human body in the diagnosis, cure, mitigation, treatment, or prevention of disease and which is commonly recognized as a substance or preparation intended for that use. A medicine is also defined as any drug or any biologic, when such are approved by the U.S. Food and Drug Administration to diagnose, cure, mitigate, treat, or prevent any disease, illness, or medical condition regardless of ultimate use. BOARD MEMBERS BETTY T. YES First District San Fral1ciscQ BILL LEONARO Second District Ol1laric/Sacramento MICHELLE STEEL Third District Roiling Hills Estates JUDY CHU Fourtt1 District Los Angeles JOHN CHIANG SlaleConlroller EXECUTIVE DJRECTOR RAMON J. HIRSIG Board website and Member contact Information: www.boe.ca.gov Taxpayers' Rights Advocate 888-324-2798 Information Center 800.400-7115 TDDITTY: 800.735-2929 June 2007 L.173 In order to be exempt, a medicine must qualify under the definition, and it must be either (1) prescribed for treatment by medical professional authorized to prescribe medicines and dispensed by a pharmacy; (2) furnished by a physician to his or her own patients; or (3) furnished by a licensed health facility on a physician's order. (There are some other specific circumstances not addressed here such as being 14-40 STATE BOARD OF EQUALIZATION Special Notice Information on Sales Ta.1: and Registration for Medical Marijuana Sellers furnished by a state-run medical facility or a pharmaceutical company without charge for medical research.) Generally, all of these requirements must be fulfilled in accordance with state and federal law. June 2007 Page 2 6. Many medical marijuana dispensing collectives consider themselves to be health care facilities. Are they exempt from applying for a seller's permit and paying sales tax for this reason? Regulation 1591 exempts the sale or use of medicines furnished by qualify- ing health care facilities. (See response to Question 5, above, regarding the requirements to qualify as an exempt medicine.) State law defines a qualifying "health facility" as either a facility licensed under state law to provide 24-hour inpatient care or a state-licensed clinic. 7. If I don't make any profit whatsoever from providing medical marijuana, do I still need to apply for a seller's permit? Yes. Not making a profit does not relieve a seller of his or her sales tax liability. However, whether or not you make a profit, like other retailers making tax- able sales, you can ask YOllr customers to reimburse you for the sales taxes due on your sales, if you fulfill the requirements explained in Regulation 1700, Reimbursement for Sales Tax. As discussed in the response to Question 10, the Board may enter into a pay- ment plan with a seller when the seller has difficulty meeting its tax liabilities. The Board has an Offers in Compromise Program that provides a payment alternative for individuals and businesses who have closed out their accounts. 8. Is there a way to apply for a seller's permit without divulging the product being sold? Yes. The Board will issue a seller's permit to an applicant who does not indi- cate the products being sold. The applicant, however, will be asked to sign a waiver acknowledging that his or her application is incomplete, which may result in the applicant not being provided with complete information regard- ing obligations as a holder of a seller's permit, or notified of future require- ments by the Board related to the products sold. Applicants who do not wish to indicate the type of products they are selling should leave the line, "What items do you se!!?" blank and discuss the issue with a Board representative regarding the incomplete application. 9. If I have been providing medical marijuana for some time, but have never applied for a seller's permit, will I owe any back taxes? Yes. As with any other seller who has operated without a permit, or who has failed to timely file and pay the taxes due, back taxes are owed on any taxable sales made, but not reported and paid. Generally, penalty and interest will also be due. When you apply for a seller's permit and your application is processed, Board staff will provide sales and use tax returns from prior periods for you to report your sales of medical marijuana and any other products you may have sold, but did not report. You will need to use these returns to self-report all your sales beginning with the month you first started selling taxable products. Once you have filed all your back returns, you will receive a current return for each reporting period in which you make sales. You will continue to receive a return until such time as you stop making sales and have notified the Board of the discontinuance of your business. 14-41 STATE BOARD OF EQUALIZATION Special Notice Infonnation on Sales Tax and Registration for Medical Marijuana Sellers June 2007 Page 3 The Board, however, may grant relief from penalty charges if it is determined that a person's failure to file a timely return or payment was due to reasonable cause and circumstances beyond the person's control. If a seller wishes to file for such relief, he or she must file a statement with the Board stating, under penalty of perjury, the facts that apply. Sellers may use form BOE-735, Request for Relief from Penally, avail- able on the Board's website. A seller who cannot pay a liability in full may be eligible for an installment pay- ment agreement. Sellers in need of this type of plan should contact their local Board office, as eligibility is determined on a case-by-case basis. 10. Is there a deadline by which I must apply for a seller's permit? All California sellers of tangible personal property the sale of which would be subject to tax if sold at retail are required to hold seller's permits. A seller's permit should be obtained prior to making sales of tangible personal property. If you are currently making sales of medical marijuana and you do not hold a seller's permit, you should obtain one as soon as possible. Sellers have a continuing obligation to hold a seller's permit until such time they stop making sales of products that are subject to tax when sold at retail. 11. Where will the money go that is collected from sellers paying this sales tax? Sales tax provides revenues to the state's General Fund as well as to cities, counties, and other local jurisdictions where the sale was made. 12. Are these tax revenues tied to any specific programs in the state budget? No. The tax from the sales of medical marijuana is treated the same as the tax received from the sale of all tangible personal property. 13. Does registering for a permit make my sales of medical marijuana any more lawful than they are currently? Registering for a seller's permit brings sellers into compliance with the Sales and Use Tax Law, but holding a seller's permit does not allow sales that are otherwise unlawful by state or federal law. The Compassionate Use Act of 1996 decriminal- ized the cultivation and use of marijuana by certain persons on the recommenda- tion of a physician. California's Medical Marijuana Program Act also exempted qualifying patients and primary caregivers from criminal sanctions for certain other activities involving marijuana. Apart from any provisions of state law, the sale of marijuana remains illegal under federal law. 14. Where can I find more information? Sellers are encouraged to use any of the resources listed below to obtain answers to their questions. They may: . Call our Information Center at 800-400-7115. . Request copies of the laws and regulations that apply to their business. . Write to the Board for advice. Note: For a taxpayer's protection, it is best to get the advice in writing. Taxpayers may be relieved of tax, penalty, and interest charges that are due on a transaction if the Board determines that the person reasonably relied on written advice from the Board regarding the transaction. For this relief to apply, a request for advice must be in writing, identify the taxpayer to whom the advice applies, and fully describe the facts and circumstances of the transaction. . Attend a basic class on how to report sales and use taxes. A listing of these classes is available on the Board's website at 7.owmboe.ca.go-v/sutax/tpsched.htm. This page also includes a link to an on-line tutorial for Sales and Use Tax. . Contact a local Board office and talk to a staff member. 14-42 WHITE PAPER ON MARIJUANA DISPENSARIES by CAUFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARlJllANA DISPENSARIES @2009 California Police Chiefs Assn. All Rights Reserved 14-43 ACKNOWLEDGMENTS Bevood any question, this White Paper is the product ofa major cooperative effort among I't'presenultives of llU11lerOllS b\ll enforcement agencies and allies who share in common the goal of hrlnglng to light the criminal nexus and attendant societal problems posed by marijuana dispensaries Ihai until now have been too otten hidden in the shadows. The critical need for this project.was (Irst recllgl1lzecl by the Califomia Police Chiefs Association, which put its implementation in the very Call:lhle hands of CPC A's Executive Dlrectur Leslie McGill, City of Modesto Chief of Police Roy Welsden, and City of EI Cerrito Chret'of Police Scott Kirkland to spearhead. More than 30 people CDntributed to thIs project as members ofCPCA's Medical Marijuana Dispensary CTIme/lmpact Issues Task Force, wlllch has been enjoymg the hospitality of Sheriff John McGin\1\s at regular meclll1gs held at the Sacramento County Sheriffs Department's Headquarters Office over the past Ihree vears 'Ibllut every three months. The ideas tor the White Paper's components came from this group. and the text is the collaborative effort of numerous persons both on and off the task torce. Sl'ccICIlll1enlion goes to Riverside County DIstrict Attorney Rod Pacheco and RIverside County ['cput)' Dlstrrct Attorney Jacqueline Jackson. who allowed their Oftlce's fine \\Il,ite !'Jper on ~kdical MarrJuana: HIstory and CUI lent Complications to be utilized as a partial guide, and granted permission to include material from that document. Also, Attorneys Martin Mayer and Richard Jones of the law timl of Jones & Mayer are thanked for preparing the pending legal questions and answers on relevant legal issues that appear at the end of this White Paper. And, I thank recently rctil'ed San Bemardlno County Sheriff Gary Pemod for lI1itially assigning me to contribute to tl1l5 important work. IdCIlllfYlng and thanking everyone who contributed in some way to this project would be well nigh JIllI)()ssible. Slllce the C,lSt of cllJracters changeel somewhat over the years, and some unknown II1divIIluals also helped meaningfully behind the scenes. Ultrmately, developIng a White Paper 011 Alurill/ulla Di,\'!)(!f/sur/{:s became a rite ufpassage for its creators as mllch as a wnting project. At times this dauntll1g. and sometimes unwieldy, Illulti-year project had many tusk force members, including the White Paper's editor. wondering 11' a polrshed tlnal product would ever really reach rnlllioll. But at last it has! ffany reader is enlightened and spurred to action to any degree by the White Paper':i Important and timely subject matter, all of the work that went into this collaborative proJecl will have been well worth the dl()rt ancl time expended by the many individuals who worked harmonluusly to make it possible SUl1le or the athel" persons and agenCIes who contributed in a meaningful way to this group venture ovel' the past three years, and deserve acknowledgment for their helpful input and support, are: George Anderson, California Department of JustIce Jacnb r\ppelsmith. Office of the California Attorney General John Avila. Califomia Narcotics Ot'llcers Associalion Phebe Chu, Office of San Bernardino County Counsel Scutt Collins. Los f\ngeles County District Attomey's Office C;Jthy Coyne, California State Shenffs' t-\ssociatlOl1 L()IT,-l( Craig, TrinIty CUUllty Sheriffs Depal tment .11]11 Denney, ralifomiJ State Sheriffs' Assocll1tion Thomas Dewey, Calitornia State University-Humboldt Pohce Department Dana Filkowski, Contra Costa County Dlstnct Attorney's Office John Games, California Department ofJlistice!Bureau of Narcotics Enforcement Cmig Gundlach, Modesto Pohce Depallment John Harlan. Los Angeles County DIstrict Attorney's Office-Major Narcotics Division @ 2i)OS' California Police Chiefs Assn. All Rights Reseo/ed 14-44 I ,I ,I :1 II II ~ ij II Nelle Johnson. Calitomlo State Ulllverslty Police Mike Kanalakis. Monterey CL)Unty Sheriffs Omce BL)!1 Kochly. Contra Costa County Omce of District Attomey Tommv LaNier. The National Marijuana Initiative. HIDTA Ca!"Ol Leveroni. Colitomia Peace Officers Association Kev'in McCarthy, Los Angeles Polrce Department Rcllldy Mendoza, Arcata Police Department ivlike Nivens, California Highway Patrol Rick Oules, Otlice of the United States Attol11ey Mark ['azll), Merced County Sheriffs Department Michael Regan. EI Cerrito Polrce Department Melissa Reisinger, laliti)rma Police Chiefs Association Kimberly Rlos. Calrfornio Department of Justice, Conference Planning Unit Kent Shaw, California Department of Justice/Bureau of Narcotics Enforcement Crystal Spencer. Califolllla Department of Justice, Conference Planning Unit Sellll Spiegel. Folsom Polrce Department V'llerle Taylm, ONDCP Th\)lll~\:-; Toller. Californiu District Attomt::ys ,L\ssoclation i\'Linlll Vrtllllcar, Jr.. Califl)rnin District Attorneys Association April 22,200') Dennis Tilton, Editor @ 2009 California Police Chiefs Assn, II All Rights Reserved 14-45 TABLE OF CONTENTS r\C KNOWLEDGMENTS . EXECUTJVE SUMMARY. WHITE PAPER ON MARJJUANA DISPENSARlES INTRODUCTION. . FUJERAL 1_.<\ W. . CAUFORNIA LAW. LA WS IN OTHER STATES. STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES. HOW EXISTING DISPENSARIES OPERATE. .. ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILARL Y OPERATING COOPERATIVES. ....... ANCILLARY CRIMES OTHER f\DVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES . . . . . . . . . . .. . . . . . SU'ONDAR Y ADVERSE IMPACTS IN THE COMMUNITY AT LARGE. ULTIMf\ TE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS. Pa\2:es .HI .IV-VI . .1-2 .2-6 .6 6-7 . .7-8 . .8 . .8-10 . JI /1-14 ./4 POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARlJUANA DISPENSARIES /4-17 L1.<\81L1TY ISSUES "\ SMvlPUNG OF EXPERIENCES WITH lVIARIJUANA DISPENSARIES. I)ENDING LEGAL QUEST/ONS. CONCLUSIONS. . ENDNOTES. NON-LEGAL REFERENcES. @ 2009 California Police Chiefs Assn. iii All Rights Reserved 14-46 . . . /8-19 19-30 . .31-39 .40 A/-44 45-49 WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES EXECUTIVE SUMMARY j,\TRODliCTION I'Jlli)u::;itiOll 21 :'. an lmtlati\'e authorizing the limited possession, cultivation. and use of marijuana by !Xlrlenb and thell care providers for certall1ll1elhcinal purposes recommended by a physician without subJectl11g stich persons to criminal punishment, was passed by CalifoD1ia voters in 1906. ThlS was supplemented by the California State Legislature's enactment in 2003 of the Medical Marijuana PlI'gram ".ct (58 420) that became effective in 2004. The language of Proposition 215 was codified III ( ,dili)rllla as the CompasSlOnate Use Act, which added section 11362.5 to the California Health & Silldy Code. Much later, the language of Senate 8i1l420 became the Medical Manjuana Program "\c\ (!\iIMPA), and was added tn the CalitiJlllla Health & Safety Code as sectIOn 11362.7 ct set! :-\IIHlIlt; (lfher require\11ents. it purports to dilt::ct all California counties to set LLP and administer a \,nlllnt~J!)' iden!ltication card system flir medical marijuana users and their caregivers Some cnlllllltS ha\.e already complied With the mandatory provisions ofthe MMPA, and others have chall~nged pruvlsions of the Act or are awaiting outcomes of other counties' legal challenges to it bell,re t"killg affirmative steps to follow all of its dictates. And, with respect to marijuana clLspensaries, the reaction of counties and municipalIties to these nascent businesses has been deCidedly Illlxed. Some have Issued pemlits for such enterprises. Others have refused to do so withill their jlllisdictIOIlS. Still others have cOllditioned permitting sllch operations on the condition thai they Ilot vinlate any state or federal law, nr h"ve reversecl course after initially allowillg such actiVities within their geograrhlcal borders by either limiting or refusing to allow any further d[;;pensaries to open In their community. ThiS vVhite Paper explores these matters, the apparent (\llllllcts between federal and Califumia law, and the scope of both direct and indirect advelse impacts uf marijuana dispensanes in local comlllumhes. It also recounts several examples that could be ernulatecl of what some govem111~lltJI officwls and law enfOlcement agencies have already inStituted in theirjurisdictlOlls to lImit the proliferati(;11 of marijuana dlspensanes and to mitigate their negative cunsequences. FEIlERAL LAW l:xcept for very limited and authorized research purposes, federal law through the Controlled Sllk-;tallce~:; )\ct abslllutely plohibits the use ofmarijudna for any legal purpose, and classifit:s it as a hUlllled Schedule I drug. It cannot be legally prescribed as medicine by a phYSIcian. And, the fnkral regulation supersedes any st8te regulation, so that under federal law California medical marijuana statutes do not provlde a legal defense for cultivating or possessing marijuana-even with a physician's recommendation for medical use '92009 California Police Chiefs Assn. iv All Rights Reserved 14-47 CALIFORNIA LAW Althou:;h Calit<m1ia low :;enerally prohibits the cultivation, possession, transportation, sale, or other tnnsfer of Illalljuana from one person to another, since late 1996 after passage of an mitiative (!'r"l'osItinn 215) Inter coditied as the Compassionate Use Act, it has provided a limited affil1l1ative lkiL'nse t(l criminal prosecLltion fur thuse who cultivate, possess, or use limited amollnts of marijuana il)l" Illedlcinal purposes::Is qualified patients with a physician's recommendation or their designated primary caregIver or cooperative. Nutwithstandlllg these limited exceptions to crin1inal culpability, C al![('rn!a lilW is notably silent on any such availilble defense for a storefront marijuana dIspensary, and Calit()l1lia Attorney General Edmund G. Brown, Jr. has recently issued guidelines that generally tind l11JrIJuana dIspensaries to be unprotected and illegal drug-trafficking enterprises except in the rart' instanL:e that one can qualify as J. true cooperatIve under California law A primary caregiver must cnnsIstently and regularly assume responsibility for the housing, health, or safety of an 1uthnnzed medical marijuana user, and nowhere does Califon11<l law authorize cultivating or )_,r!I\:lding marijuana-medical or non-medical-for profit. " 'III(;'rIlIa's Medical Marijuana Program Act (Senate Bi1l420) provides ti.mher guidelines for mandated county programs tar the issuance of identitication cards to authorized medicalmarijuam users 011 [1 voluntary basis, fur the chief purpose of giving them a n1eans of certification to show law enri,rcement onicers if such persons are investi:;ated tar an offense involving marijuana. This system is currently under challenge by the Counties of San Bernardino and San Diego and SheritI' Gary Penrod, pending a decision on review by the U.S Supreme Court, as is California's right to permit any legal use of marijuana in lIght of federal law that totally prohibits any personal cullivatlon. possession, sale, transportation, or use of this substance whatsoever, whether for medical III nun-medIcal purposes. PI{OBLEMS POSED BY MARIJUANA DISPENSARIES M~HIJuana dIspensaries are commonly large money-making enterprises that will sell marijuan;l to Illl,lst anyone who produces a physician's written recommendation for its medical use. These reel illlJl1ell{!<rtloIlS can be had by paying unscrupulolls physicians a fee and claiming to have most allY malady, even headaches. While the dispensaries will claim to receive only donations, no Ill~lnjlliJlla \\/i11 change hands without an exchange of money. These operations have been tied to llrgcullzed criminal gangs, foster large grn\\' operations, and are often l11ulti-million-dollar profit ,,'i'::'n\er;;; Becau::;e they are repositories ot'valuable tlwrijuana crops and large amounts of cash, severnl "pnat"I', of dispensaries have been attacked and murdered by arn1ed robbers both at their storeti'onts Llnd homes, and such places have been regularly burglarized. Drug dealing, sales to minors, lniterlllg, heavy vehicle and foot traffic in retail areas, increased nOIse, and robberies of customers just outside dispensaries are also common ancillary byproducts of their operations. To repel store I11VaSIOns, tirearms are often kept on band inside dispensaries, and firearn1s are used to hold up theIr proprietors These dispensaries are either linked to large marijuana grow operations or encourage home grn\\/s by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in rc.";lljelltJ~1111eighhnrhoods art often the result uf large indoor home grows designed to supply dl::'pclls~lncs. l1loney laundering also naturally results from dispensaries' likely unlawful operations. ''9 2009 California Police Chiefs Assn. v All Rights ReseIved 14-48 LOCAL GUVERNMENTAL RESPONSES LOC<.ll ~overnmel1tal bodies can impose a 111oratnrlU11l Oil the licensing of marijuana dispensaries \-vhile investigatlllg this issue; can han thIs type of actIvity because it violates federal law; can lIse zOl1in;; to control the dispersion of dispensaries and the attendant problems that accompany them in unwanted areas; nnd CJI1 condition their operation on not vIOlating any federal or state law, which is akin 1\' hanllll1;; them, since their prinlOlY activities will always violate federal law as it now eXlsts~ allll almnst surely California law as well. LIABILITY While highly unlikely, local public otl,cials, including county supervisors and city council members, could potentially be charged and prosecuted for aidll1g and abetting criminal acts by authonzing and licensing marijuana dlspensanes if they do not qualify as "cooperatives" lInder Calitornia law, which ',<'uld be a rare OCCUITence. Clvilliabiliry could also result. E:'- F(JRCE:VIENT OF MARI./UANA LAWS 'vVhile the Drug Enforcement Administration has been very Gctive in raidlllg large-scale marljuana dl.\litl1saries in CalIfornia in the recent past, and nrresting and proseclIting their principals under i"edcr,r1IJw in selective cases, the new U.S. Attomey General. Eric Holder, Jr., has very recently ann\Junced a m:Ijor change or. federal position in the enforcement of federal drug laws with respect to marijuana dispensaries. [t is to target for prosecution only marijuana dispensaries that are exposed :IS l"ronts for drug trafficking. It rem:Iins to be seen what standards and definitions will be used to dett'rml11e \vhat indicin will constitute a drug trat1icking operation suitable to trigger investIgation and enforcement under the new federal administration. Some counties. like law enlarcement agencies in the County of San Diego and County at. Riverside, h<.lve been aggressive in conrrontlllt; and prosecuting the operators of marijuana dispensaries under stale la\v Likewise. certain cities and counties h.1ve resisted granting marijuana dispensaries bUSiness licenses, have denied applIcations, or have imposed moratoria on such enterprises. Here, tOll. the future is uncertain, and permissible legal actIOn with respect to marijuana dispensaries may depend all future court decisions not yet handed down. I"a,-gely because the majority or. their citizens have been sympathetic and projected a favorable ;lttllucle toward medical marijuana patients, and have been tolerant of the cultivation and use of 1l],'ll'i.iu;ln~L other local public ntlicials 111 California cities and counties, especially in Northern C~lIifnrl1i<.l, have wken a -.h~ll1ds off' attitude with respect to proseclltll1g marijuana dispensary opel.atc',-s or atlemptlllg to close down such operations. But, because of the life safety hazards c<.\lL'ied by ellsulllg fires that have often eruptecllll resultant home grow operations, and the violent acts that have often shadowed dispensaries, some attitlldes have changed and a few political entities ha\'e reversed course after having previously licensed dispensaries and autborized liberal permissible amOllnts of marijuana for possession by medical marijuana patients in their jurisdictions. These "jxltients" have most often tl1111ecl out to be young adults who are not sick at all, but have secured a physl(,lal1'~':; vvritten recommendation for marijuana use by simply paying the required fee demanded i-~}r thiS doculllent \vithou[ even ~irst undergoing a physical examination. Too often '"medical Illcll'ijULIl1<.l" has been Llsed as a smokescreen for those who want to legalize it and profit off it. and slorefront dispensaries established as cover for selling an illegal substance for a lucrative letum. @ 2009 California Police Chiefs Assn. vi All Rights Reserved 14-49 WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION Editor' Dennis Tilton, M.A. Ed., tvlALit., M C'.L J.D. i\c1Jllllct ProFessor ofCnmmal Justice. Political SCience, & Public Admlllistration, Upper Iowa University She-rilTs Legal Counsel (Retned). San Bernardino County Sheriffs Department j',TI,ODliCTION [n Nnvembel' of 1996, Calilomia voters passed Proposition 2 [5. The initiative set out to make marijuana availab[e to people with certam illnesses. The initiative was later supplemented by the Medical Marijuana Program Act. Across the state, counties anclmunicipaIitles have varied in their n::~I~()nses to medical marijuana. Some have allo\ved businesses to open and provide medical marijuana. Olhers have disal[owed all such establtshments within their borders. Several once issued hU:-:lIless licellses <.lllowlllg mec\icall1larijuana stores to operate, but no longer do SQ. This paper discusses the lega[ity oI'both medical marijuana and the busll1esses that make It available, and more spc'eil'leally, the problems associated With medical marijuana and marijuana dispensaries, under \Vh~ltever name they operate. FEDERAL LA W Feller:lllaw c[early and unequivocally stares that all marijuana-related activities are rllegal. COllsequently. all people engaged ill such activities are subject to federal prosecution. The (Jnited States Supreme Court has ruled that this federal regulation supersedes any state's regulation of 11l""jU'"W - eVell California '5. (Collc,des \ Raidl (2005) 125 S.Ct. 2 [95.2215) "The SlIpremacy CI~lllse L1IWlllhlgllOllSly provides that II" there IS any cantllet between federal Jaw and state law, k,!er" I [aw ,hall prevail" (Collcal"s \' Raicll. supra.) Even more recently, the 9th Circuit Court of !"\:~I)eals j(llll1d that there IS no fUl1damt:nt::l] right under the United States Constihltion to even LIse Illedicalmarljuana. (Rille" v C(}Icalcs (9th Cir 2007) 500 F.Jd 850, 866.) 111 GOllcalc.," Rille", the High Court declared that, despite the attempts of several states to partially leg'lllze marijuana. It continues to be wholly illegal since it is classified as a Schedule I drug under I'ederallaw. As such. there are no exceptions to its illegality. (21 USC secs. 812(c), 841(a)( I ).) O\cr the past thirty years, there have been several attempts to have marijuana reclassified to a dlnerent schedule which would permit medical use arthe drug. All oUhese attempts have failed. (Se,_' GOllcal"s " Raic" (200)) [25 S.Ct. 2195. fn 23.) The mere categorization of marijuana as .'111edical" by some states fails to CJrve out any legally recognized exception regarding the drug. Ivlalljuana, in any form, is neither vahd nor legal. Clearly the United States Supreme Court is the highest court in the land. Its decisions are final and binding upon all lower courts. The Court invoked the United States Supremacy Clause and the ('nlll111erCe Clause in reaching its decision. The Suprel11Jcy Cbuse declares that all laws made ill [1ur,u'"lCe ul' the CUl1stitlltion sha[1 be the "supreme law of the land" and shall be legally superior to allY l~(llltlictl1lg provision ora state cOllstitution or law. I The Commerce Clause states that "the @ 2009 California Police Chiefs Assn. 1 All Rights Reserved 14-50 Congress shDl1 have power to regulDte Commerce with foreign Nations, and among the several SUlles. and with the Indian Tribes.." G(}II:u/es \. RU/ch addressed the concerns of two California individuals urowinu and usinn mariJ'uana e " Co L1llclet. Calil()mla", medical marijuana statute The Court explained that under the Controlled Sllh;';l~lI1CeS Act marijuana IS a Schedule [drug and is strictly regulated.J "Schedule I drugs are calc~",ized as such because of their hi~h potential for abuse, lack of any accepted medical use, and "hs(llce ol'any accepted safety tar use III medically supervised treatment.,,4 (21 USC sec. 812(b)( I ).) Thc Cnurt ruled that the Commerce Clause is applicable to Caltfomia individuals growin~ and obtainin~ marijuana for their own personal. medical use. Under the Supremacy Clause, the federal regulatioll of marijuana. pursuant to the Commerce Clause, supersedes any state's regulation, Includll1~ ('al,fomia's. The Court found that the Califorma statutes did not provide any fedeml delCnse if a person is brought into federal court for cultivating or possessing marijuana. "'\L'l'ordlllgly. there 1:'; 110 federal exceptIon for the growth, cultivatIon, use or possession of marijuana :1l1d all such activity remalllS ille~al.j Calit<1rI1ia's Compassionate Use Act of 1996 and Medical ,\ktrljuan:1 I'ro~ram Act 01' 2004 cia Ilot create all exception to this federal law. AlIl1larijuana a\..'livity IS absolutely illegal and subject to feelera! r~gltlatiol1 and prosecution. This notwithstandlllg, 011 ''-'larch 19, 2009. U.S. Attorney General Eric Holder, k announced that under the new Obama Admillistratioll the U.S Department of.!ustice plans to turget for prosecution only those marijuana disjlen:,aries that lIse mec1icalmanju<lnD dispensing as a front for dealers of illegal drugs.1l C-\LlFORNIA LAVV (ll;ller<.l1ly, the pussession, cultivation. possession for sale, transportation, distribution, furnishing. ,,,,ei eei\1I1ee awa" ot'lllarijuana is unlawful under Califomia state statutory law. (See Ca!. Health & Sak~Y Co~1e se~s. 11357-11360.) But, on Noyember 5, 1996, California voters adopted Proposition 215. ~lll initiative statute authorizing the medical use of mafljuana.7 The mitiative added Cali foolia Health alld Salety code seclion 11362.5. which allows "senously ill Califomians the right to obtain andust marijuana lar medical purposes where that medll'aluse is deemed appropriate and has been ,'ecllllllllended by a physician. . . ...S The coditied section IS known as the Compassionate Use Act 01' 10%." Additionally, the State Le~islature passed Senate Bill 420 in 2003. It became the Medical IVlarijucna Pro~ram Act and took effect on January 1.2004.'0 This act expanded the definitions of "p~ll iellt" and "prImary caregiver..ll and created guidelines for identification cards.12 It defined the <.l\1ll)lIl1t ofnwriju<lniJ that "patients," and "primary caregivers" can possess.IJ It also created a limited "nirmative defense to criminal prosecution for qualtfying individuals that collectively ~ather to cultlvate medical marijuana, 14 as well as to the crimes of manjuana possession, possession for S<1\c. transportation. s<1le, fUolishing. cultivation. and maintenance of places for storage, use. or dislributlnll of marijuana for a person who qualifies as a "patient," a "'pnnlary caregiver," or as a member ofa legally recognized "cooperative." as those tenllS are defined within the st<.1tutory sclH:.:me Nevertheless, there is no prOVision in any of these laws that authorizes or protects the l.'~I~lhli:-;hment 01'<.1 "dispensary" or other storefront marijuana distribution operation. Ut.:';pitl' Lhelr illegality in the federal context. the mecticalmarijuana laws in California are specific. The ;.;1,Jtutes crJft narrow affirmative defenses for particular individuals with respect to enumeJated m,"iJu"na activity All conduct, and people en~aging in it, that falls outside of the statutes' p",,"neters remains ille~alunder California law. Relatively few indivlduals will be able to assert the a[liml"tive eldense in the statute. To use it a person must be a "qualified patient," "primary CJrcglver:' or a member of a "cooperative" Once they are charged with a crime, if a person can prove an applicable legal status. they are entitled to assert this stanltory defense. @ 2009 California Police Chiefs Assn 2 All Rights Reserved 14-51 FOl'mel CalliiJrllla Attorney General Bill Lockyel' has also spoken about medical marijuana, and stl'ictly construed Califomia law relating to it. His office issued a bulletin to Califomia law enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales v Roleh did not address the validity of the Califomia statutes and, therefore, had no effect on Calitomia law. The ollice aclvlsecllaw enlorcement to not change theil' operating procedures. Attorney General Lockyer madc the recn1l11l1enclatioll that law enforcement neither arrest nor prosecute "individuals within the Ieg,1i scope nl'Calitomia's Compassionate Use Act." Now the current Califomia Attorney General, ELllllUlld C. Brown. Jr.. has issued guidelines concerning the handling of issues relating to Ci.lli!(>r11111'S melllczlll11arijuanll laws alld manjuana dispensaries. The guidelines are much tougher 011 ~t()refront dispensaries-generally findrng them to be unprotected, illegal dnlg-trafficking enterprises if they Jo not fa!1 within the narrow legal definitIOn ofa "cnoperative"-than on the possessioll and use of marijuana upon the recommendation of a physician. When California's medical mariJuana laws are strictly construed, it appears that the decisIOn in (;iJ/CL/!cs t. Raiell does affect Czllifornia law However. provided that federal law does not preempt Calil(llllla 1m' in this area, it does appear that the California statutes offer some legal protection to '"illllivillu,lls within the legal scope of' the acts. Tht": medical marijuana laws speak to patients, primary caregivers. and true collectives. These people are expressly mentioned Il1 the statutes. and, If lhelr condllct comports to the la\V, they may have some state legal protection for specified marijuana activity Conversely, allmanJuana establishments that fall outside the letter and spirit of the statutes, including dispensaries ;:lI1d storefront facilities, are not legal. These establishments hJve no legal protection. Neither the fOllner Cahlorma Attol11ey Genera}'s opinion nor the CUITent l'allll1\11Ja Attorney General's guidelines present a contrary view Nevertheless, without speCifically addressll1g manjuana dispensaries, Attorney General Brown has sent his deputies attonley general to dclcnd thc cudi lied Medical Marijuana Program Act against court challenges, and to advance the po;;it;on that the stote's regulation;; promulgated to enforce the provisions of the codilied C1llllpas;-.;iullJ.tl' Use Act ([)ropositlull 215), Including a st.1tewide database and county identification card :-,ystems for marijuana patients authorized by their phYSIcians to use marijuana. are all valid. I. Condnct Calili,rnia Health and Safety Code sections 11362.765 and 11362.775 describe the conduct fOI' which the affirmative defense is available. [fa person qualifies as a "patient," "primary caregiver." Ill' IS a member ofa legally recognized "cooper8tlve." he or she has an aftinllatIve defense to jl(lss~s;;il1g [1 defined amount of mJ.r1juJ.nJ. Under the statutes nu more than eight ounces of dried m;ji"iJu;lna C8n be possessed. Acldltlol1..11ly, either six mature or twelve immature plants may be plls..;cs~ed.l~ ll"~l person cklims [Jntient or primary cnregiver status, and possesses more than thiS ;lnwunt ofmarijllann. he or she can be prosecllted for drug possession. The qualifying Il1dividllals lllay also cultivate, plcint, halvest, dry. and/ol' process marijuana, but only while still strictly I)bserving the permitted amount of the drug. The statute may also provide a limited affirmative defense For possessing marijuana for sale, transporting it, giving it away, maintmmng a marijuana hl'lIse. knCJ\vingly provuJillg a space where marijuana can be accessed, and creating a narcotic J(, nUisance However. for anyone \vl1o canll\)t by claim to the appropriate stanis under the statutes. all instJnces ul"lllariju(\ll(\ possession. cultiv(\tion. planting. harvesting, drying, processing, possession for the purpnses of sales, completed sales. giving aw(\y. administration, transportation, maintaining of ll1;HijuanH houses. knowingly providing a space for marijuana activity, and creating U l1.1rcotic IlUi:';clllce cnntlllue to be illegal under California bw. @ 2009 California Police Chiefs Assn. 3 All Rights Reserved 14-52 2. Patients and Cardholders A dispensary obvIOusly is not a patient or cardholder. A "qualified patient" is an individual with a phvsician's recommendation that ind icates manjuana will benefit the treatment of a quali fying illness. (Cal. H&S Code secs. 113625(b)( I )(A) and 11362.7(f).) Qualitied illnesses include cancer, ~1nnrexia. AIDS, chronic paJn. spasticity. gbucomJ, arthritis, migraine, or allY other ifllless/(Jr which IIIUJ"!!I/Uf/O (Jrn\.'/(!cs rellefl; A physician's recommendation that indicates medical marijuana will hendit the treatment of an illness is required betore a person can claim to be a medical marijuana peltlen!. ;-\ccnrcltngly. such proof is alsn necessalY betore a medical marijuana affinnative defense ....:<.IJllk,daimed. A "person with an identitication card" means an individual who is a qualified patient who has applied for and received a valid identification card issued by the State Department of Health Services. (Cal. H&S Code sees. 11362.7(c) and 11362.7(g).) J. Primary Caregivers ll1,~ (JIll.:, persoll qr entity autlwrized to receive compensation for services provided to patients and v'ar,lholdcrs is a primary c,uegiver ((':\1 H&S Code see 11362.77(c).) However, nothing in the law 'llItIH,rizes any indiVidual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec 11362.765(a).) It is Important to note that it is almost impossible for a storefront manjuana hu:~illl:::ss to gain true primary caregiver status. Businesses that call themselves "cooperatives," but function like storefront dispeilsaries. sutler this same fate. In People v. J'vlower, the court was very clear that the defendant had to prove he was a primary caregiver in order to raise the medical mal'ijuana a l'li1l11ative defense. Mr. Mowel' was prosecuted for supplying two people with lllc11IjU<1I1<.1.IX He claimed he was their primary caregiver under the medical marijuana statutes. ThiS (icllll1 required him to prove he "collsistentl~ had assumed responsibility for either one's housing, il'l',drh, or 'afer)" hel<lI'e he could assert the defense. I" (Emphasis added.) The key to being a primary caregiver is not simply that marijuana is provided for a patient's health; the responsibility for the health must be consistent; it must be independent of merely providing manJuana for a qualified person; and such a primary caregiver-patient relationship must begin before c)I' contemporaneously with the time of assumption of responsibility for assisting the individual with marijuana. (Pcople v. Alclltch (2008) 45 Cal.4th 274.283) Any relationship a storefront marijuana bu,,,,ess has With a patient is much mOte likely to be transitory than consistent. and to be wholly bcking in proViding for a patient's health needs beyond just supplying him or her with marijuana. ,-\ -.pl imary c~lregiver'" is all indIvidual or facility that has "consistently assumed responsibility for the huusillg, health. or safety ofa patient" o'er time. (Cal. H&S Code sec. 11362.5(e)) "CoIlSlstency" is the key to meetmg this definition. A patient can elect to patronize any dispensary that he 01' she chooses. The patlellt call visit dit'terent dispensaries on a single day or any subsequent da" The statutory c1efil1ltiun includes some clinics. health care facilities, residential care tacilities, and hospices. But. in light of the holding in People v Mentch, supra, to qualify as a primary caregiver. more aid to a person's health must occur beyond merely dispensing InanJlJana to a given customer ,t\lidilit1l1ally. IJ" ll10re than one patient designates the same person as the primary caregiver, all llldl\.lduLlls I1lLlSl reside in the same city or county. And, in most circumstances the primary C~II.cglver IllLlst be at least 18 years or age. @ 2009 California Police Chiefs Assn. 4 All Rights Reserved 14-53 The courts have tound that the act of signin),' a piece of paper declaring that someone is a primary C<.ln':Slver dnes lll)t nc:cessarIly make that persoll one. (Sl.!e People ex rei. Lungren v. Pero!l (1997) 59 C"IAppAth 13~3. 1390, "One maintainin),' a source of marijuana supply. from which all members of tht:' public \.jualiriecl 8S permitted mecllcinalusers mayor may not discretionarily elect to make purchases. does not thereby become the party 'who has consistently assumed responsibility tor the houslIlg. health. or satety' of that purchaser as section 11362.5(e) requires.") The Calltornia I_egislature had the opportunity to legalize the existence of dispensaries when setting [()I,th what types oJ' facilities could qualify as "primary caregivers." Those included in the list clearly :-;l1nw the Legislature's intent to restnct the detinition to one involving a significant and long-term """llnitll1e"tto the patient's health. safety, and welfare, The only facilities which the Legislature I.llIil1prl7t.'d to serve as '.prlm.lry careg1\'ers" <.lre clinics, health care facilities, residentinl care l:l,:ilitlt:S. home health agencies, allll hospices which actually provide medical care or supponive scr\'ices l" lJunl i tied patients. (Cnl H&S Code sec. 11362. 7( d)( 1 ).) Any business that cannot prove lklt Its relatlollship with the patient meets these requirements is not a primary caregiver. FUlh':liunally, the business i~ a drug dealer and is subject to prosecution as sllch. 4. Cooperatives and Collectives .'\l\..'(lrdillg ltl the Califollliu Attorney Cieneral's recently isslled GuideliJ/l!sfor the Security und N()lI- Di\'l'I'S/fJ!I (!! l\'lur{jllwlll Crowl/fo/' t\'/cdicu/ Use, unless they meet stringent requirements. lll:~rlt.'llS~\ries also cannot reasonably claIm tn be cooperatives or collectives, In passing the i\!kdicJ! fvlanjuana Program Act, the LegislJture sought, III part, to enhance the access of patients and Lelregi\ers to medlcalm3riJllJna through collective, cooperative cultivation programs. (Peuple \.'. Uroln'ulIlI (2005) 132 Cal.App 4th 747. 881) The Act added section 11362.775, which provides that "Patients and caregivers who associate wlthil~ the State ofCalitorniCl in order collectIvely or CIl('l'eratively to cultivate marijuana tor medical purposes, shall not solely on the basis of that fact be :'Uhjccl tll state crimina! sanctIons" for the crimes of marijuana possession, possession for sale, trelllspnrtati\lll, sale, furlllshlllg. cultivation, and mall1tenance of places for storage, use, or dlstrihutlon nfmnrIJuana. However, there IS no authorization for any individual or group to cultivate "I' ll"lribute n"'l'ijuan" COI' P"l)rll. ICal H&S Code sec. 11361.77la),) lfa dispensary is only a Sh>l't:rlOJ1{ distribution opc:rutillll open to the general public, and there is no 1l1dicntion that it has been In\'(ljl,;t"c1 'vvith growing or cultivating marijuana for the benefit of members as a non-prOfit enterprise, 11 \\"111 not qualify as n cooperatIve to exempt it frum crll11l1lal penaltIes under Califomin's marIjuana le1\\:;;. FUrlhcI. the' coml1lon dictionary defi111tion of "collectives" IS that they are organizations jointly Ill,llwged by those using its facilities or services. Legally recognized cooperatives generally possess "tht: follnwlllg ~eatures: control and ownership of each member is substantialiy equal; members are I,mitcd t"those whl) will ov,,1I themselves of the services furnished by the association, transfer of uWllership interests is prohibited or limited, capital investment receives either no return or a limited return; economic bene~its pass to the members on n substantially equal basis or on the baSIS of their patronage ot'the association, members are not personally liable for obligations of the association in the ;]bsence of a direct undertaling or authorization by them; death, banknlptcy, or withdrawal of one or more members does not terminate the association, and [the] services of the association are furnished primnrily for the use of the members, H20 NIariju3.nn businesses, of any kind, do not ll{)rrn~1l1y meet thiS legal definitIon. ('J 2009 California Police Chiefs Assn, 5 All Rights Reserved 14-54 Based on the trJregoll1g. it is clear that virtually all marijuana dispensaries are not legal enterprises under either [ederal or state law. LA\\iS IN OTHER STATES lk.,ides Callti,rnia. at the time ot'puhlication ot'this White Paper. thirteen other states have enacted Illl'tli<...<.d Ill<.lriju<.llla 1<.1\\/;:; on their bonks. whereby to some degree marijuana recommended or p,c"errhed hy a physician to a specitied patient may be legally possessed. These states are Alaska. ('"Iorado. Hawaii. Maine. Maryland, Michigan. Montana. Nevada. New Mexico, Oregon, Rh"de Island, Vermont. and Washll1gton. And. possession ofmalijuana under one ounce has now been decriminalized 111 i'vlassachl1setts.~1 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES ;;lIlee the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses h<l\'e opened in California.2~ Some are referred to as dlspensaries, and some as cooperatives~ but it is h,,\\' they operate that removes them ['rom any umbrella of legal protection, These facilities operate as Ii' Lhey are phannaeles. ;vlost ofter ditTerent types and grades of marijuana, Some ofter baked t;IH1ds that contain 11l3rijuana.2-' Monetary donations are collected from the patient or primary c'lrcgiver when marijuana or tood items are received. The items are not technically sold since that would he a criminal violation of the statutes,'" These facilities are able to operate because they apply for and receive business licenses from cities and counties. h::d:::rally. all existing: storefront marijuana businesses are subject to search and closure since they \ it I:~lk I"'ederal IJ\v 25 Their mere existelll'e violates t'edera] law. Consequently, they have no right to eXist or nperJte. and arguably cities and cOllnties in Califorllia have no authority to sanction them. Simil'lrlv, In (aliti)l'llia there is no apparent authority for the existence of these storefront marijuana hUSI nesses The tvledica I [VIal ijuana Program Act of 2004 allows patiellts and przmary ('areg/l.'ers to gn'" and cultivate marijuana, and no one else. "I Although California Health and Safety Code ,celion 11362,775 offers some state legal protection for true collectives and cooperatives. no parallel 11rntectioll exists in the statute [{)r any storefront business providing any narcotic. Till:' cnl1l11101l dictionary definition of collectives IS that they are organiz~tionsjointly managed by tho;-;e LlSlIlg its fJcilities or services. Legally recognized cooperatives generally possess "the fldlll\\.:illg features: control and ('lwnership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of (lwller~hip lIlterests is prohibited or limited, cupiral investment receives either no retllrfl or a !flll/ted rcl/l/'ll, ecollomic benefits pass to the members on a substantially equal basis or on the basis of their piJtronage of the association: members are not personally liable for obligations of the association in Ihe 'Ibsence ot'a direct undertaking 01' authorization by them; death. bankruptcy or withdrawal of one ilr Illnre members does not te1l11inate the aSSOCiation; and [the] services of the association are Illrni:.;hed primanly fnr the use of the mel11bers."n [\Ifarijuana businesses, of any kind. do not meet thi:--, kg~d detinilio1i. !\l.ILlcd medIcal dL-;pensaries are comlllonly defined as offices in hospitals~ schools, or other illslituti[)lls frol1l Whll.:h medical supplies, preparations, and treatments are dispensed. Hospitals. hospict.?:). home health care agencies. and the like ar~ specifically included in the code as primalY C'II'CO'I\'tI'S as long as they have "consistently assumed responsibility for the housmg, health, or selletv" of a patient." Clearly. it is doubttlil that any of the storefront marijuana businesses currently ri) 2009 California Police Chiefs Assn. 6 All Rights Reserved 14-55 t.'.'\I:...;ttng In Callfull1Ja C~1Il claim that status. Consequently, they are not primary caregivers and are sub.lt:ct tCJ prosecution under buth Califonlia and federal laws. HOW EXISTING DISPENSARIES OPERATE De~pltt: their clear il]ebality, snllle clt]es do have existing and operational dispensaries, Assuming, ellg/l' 'I/I/I!. that they Illoy operate, it may be helptlJ! to review the mechamcs ofthe business, The 1'lllllll:r (;I"CI.::I1 (~rnss clJ~pensary ill San Francisco illustrates how ::1 typicalmariju::lna dispensary '<, \\ \J!"k~ - f\ guard or employee may check for medical marijuana cards or physician recommendations at the entlanct. Mnny types and glades of marijuana are usnally available, Although employees are I1tllh,,,' phormacists nor doctors, sales clerks will probobly make recommendations about what type of marijuana \-vill best relieve :J given medical symptom. Baked goods containing marijuana may be ",,"Iahle ol1d sold, although there is ustwlly 110 health pellllit to sell baked goods, The dispensary \\ ill l:;IVC' the patient a fOlm to sign declaring that the dispensary is theIr "'primary caregiver" (a l'IIIces,; I'r'lllght IVith le~al,i1tliculties) The patient then selects the marijuana deSired and is wid IIt,a, ,h, "C,,,,tlil'ut;'!I1" will he t'nr the pl'llducl. The Colltornia Health & Safety Code specltically !1rp!1ihil:-. th~ ::-;a!e ()r' marijuana to a patIent, su "contributIOns" are made to reimburse the dispensary ft'l It:; llllle ~lnd care inlllakIllg "product" nvailable. However, if a calculatIOn is made based Oil the a"illlahle eVidence, it IS clear that these "contributions" can easily add up to millions of dollars per ye~lr. That IS a very l.1rge cash tlO\V for a "non-profit" organization denying any participation in the ret~lil sale of narcotIcs. Before its application to renew its business license \vas denied by the City of Sail Franciscn, there were single days that Green Cross sold $45,000 worth of marijuana. On Saturdays. Green Cross could selllllanjuona to fOlty-three patients on hOUL The marijuana sold at th,.:' dispensary \-vas nbtzl1ned from g:ro\\ers \vho brought]t to the store in backpacks. A mediul11- "ced backpack IVould hold apl''')x IIl1ately ::; 10,000 worth of marijuana. Green Cross used many dtll:-:.'ren[ marijuana gnl\Vels. 11 I..... clt:~lr thal di~pcllsaries are rUllning as If they are buslllesses, not legally valid cooperatives. r\llllltinnolly. they claim tn be the "primary caregivers" of patients, This IS a spurious c/alm. As dl~::;clls:.;ed o.bnve, the term "pnmary caregiver" has a very specific meaning and defined legal ljualificZlt]l,ns A primary caregIver is an individual who has "consistently assun1ed respullsibiltty I"nr the hr)using. health, or safety of a patient." JO The statutory definition includes some clinics, hCctlth C;Jre bcillties. residential cale facditles, and hospices, Ifmore than one patient designaks the ....,alll'.: perSCin a:::; the primary caregiver, allll1dlviduals mllst reside in the same city or county, In most CII,-Illll::;t~lllces the primary caregIver l11ust be at least 18 years of age It L'; ~lllll(lst Il11plls~ihle f'or a storefront lll<:1.r]jUana business to gum true prinlaL)' caregiver status. A busIl1e:" woule! have te> prove that it "consistently had asslImed responsibility for [a patient's] housing, health, or safety",JI The key to being a primary caregiver is not sin1ply that marijuana is pn)'v'ickd for a patient's health: the re;:;ponsibility for the patient's health must be consistent. ,L\,~ ...;eell in the Green Cross example, a storefront marijuana business's relationship with a patl(~nt is nw~t likely tml1sitory. In order tv provide a qual1tieu pattent with marijuana, a storefront marijuana hlISlllc~~S must creuk an instant "prlm:)ry caregiver" relationshlp with him. The very fact that the rel~\til'llship IS Instant belies ':l11Y cunsistency In theIr relationship and the requirement that housing, he:lIth. "I' satdy is consistel1tly providecl. Courts have found that a patient's act ofsignil1g a piece of ]xlj1er declaring that someone is a pnmary caregiver does not necessarily make that person one. The @ 2009 California Police Chiefs Assn. 7 All Rights Reserved 14-56 ',-'I II l..,i;;tl::'lll r('I~ILlunshlp demanded by the statute is mere fiction if it can be achieved between an IlldlVldu<.ll ~l11d a hUSllless that functiuns like a narcotic retail store. -\lln=RSE SECONDARY EFFECTS OF iVlARI.JUANA DISPENSARIES AND SIMILIARLY OPERATING COOPERATIVES o f great concern are the adverse secondary etTects of these dispensaries and storefront cooperatives. They are many Besides flouting federullaw by sdll11g a prohibited Schedule I drug under the (_'\illtndled Substances Act marijui:ma dispensaries attract or cause numerous ancillary social 1'1.llhlems DS byproducts of their (lperatioll. The most glaring of these are other criminal acts. A.\CILLARY CRIMES A. AIUvlED ROBBERIES AND MllRDERS Throughout CalifOlllia. many violent crimes have been committed that can be traced to the proliferation nfmar1juan:1 dispensaries. These include armed robberies and murders. For example, tiS I~lr hack as 2()()2. two home occupants were shot in \.VilJits, Califon1ia in the course of a home- IIl\.Ll~,H_-'1l robbery targeting meclicalmarijuana.11 And, n series offour an11ed robberies ofa ill;:: 1.1 1Ic1Ili.l dispt'n::;ary In Santa"8arb~lra. CalifornIa occurred through August 10, lOGG. in \vhich thirty dl1ii~lrs cllle! l'ifleen baggle::; tilled \vith lll(JriJlI~l11a on display were taken by force and removed from the premISes III the latest holdup. The IlWller said he facted to report the first three robberies because "'lllL'lJicaII1lClIljuana is such a controversial Issue " 1.1 On Fehruary 25. 2004, in Menducino County two masked thugs committed a home invasion robbery tf1 stealmedlcalmanJuana. They held a knite to a 65-year-old man's throat, and tbough be fought hal.:k. managed to get ;l'vvay with large amounts ofll1,arijuana. They were soon caught, and one of the IllL'n rel'eived a sentence of six years In state prison..\-+ And. on August] 9,2005, 18-year-old lklll~l1c'n LU\VTey was "shot in the :~to1l1ach" and "bled tu death" during a gunfight with the business ll\\ Ilt.1 Wht:ll he CIne! hi;; fnends attempted a takeover robbery ofa storefront marijuana business in the (.ily nf San Leandrn, Califcll-nia. The ()\Vner fought back with the hooded home invaders, and a gun h,\111e ensued Demarco Luwery 'vvas hit by guntire and "dumpeu outside the emergency entrance of Children's Hospital Oakland" atter the shootout.J5 He did not survive. lr, Ne"r Hayward. CalifOlllia, on September 2.2005, upon leaving a marijuana dispensary, a patronllf the CCA ('ann"bis Club hac! a gun put to his head as he was relieved of over $250 worth of pot. Three,weeks later. annther break-in occurred at the Garden of Eden Cannabis Club in September of 2011:\: ' A 11\ ,th<.::r kll()'vV 11 maIIJuana-dlspensary-r elated lllurder occurred on Noven1ber 19,2005. .'\Ilpl\l'\imately six gLlll- and bat-wielding burglars broke into Les Crane's home in Laytonville, Callflll"nia while yell1ng. "ThIS is a raid." Les Crane, who owned two storefront marijuana husines~:;cs. was at home and shot to death, He received gunshot wounds to his head, mm, and abdnm(:::n. "" Anothel man present at the time was beaten with a baseball bat. The murderers left the home after taking anunknO\Vll sum of U.S. currency and a stash of processed marijuana.Jq 1 hLll, (\n January 9. 2007. manjllana plant cllltivator Rex FatTance was shot once in the chest and kill...:d III hi::; OWIl hllllle after four masked intruders broke in and demanded money, vVhen the j-111Iil\.'I)Wllel" I-UIl to fetch a firearm, he \Vas shot dead. The robbers escaped with a small amount of !9 2Q09 California Police. Chiefs Assn 8 All Rights Reserved 14-57 cash Dlld handguns, Investigating officers counted 109 marijuana plants in various phnses of cultivation inside the house. along with two digital scales and just under 4 pounds ofcultivated ..!o llltll'IJuana. More recently In Colorado, Ken Gorman, a former gubenlatorial cnndidate and dispenser of 11l~lrijLl~lIW who had been prevlollsly robbed over twelve times at his home in Denver, was found ll1urdel eel by gUlls hot inSIde his home. He was a prominent proponent of medical marijuana Zlnd the legalization ofmarijuana.",,1 B. BURGLARIES In .Iune 01'2007. after two burglarizing youths 111 Belltlower, California were caught by the h\llllt'llwner trying to steal the fruits of his indoor marijuana grow, he shot one who was runl1lng "" C1Y. C1nd killed him."' And. again in January of2007, Claremont Councilman Corey Calaycay \\ ~'1l1 on rn:llrd cnllm); lll~lrijllallD dispensaries "crime magnets" after a burglary OCClllTecl in one III \ '1~II'ellll)llL (~llif()lnia,..!; On July 17,2006, the EI Cenilo City Council voted to ban all such man.luana facilities. It did so ~ltkr revie\.vlIlg a nineteen-page report that ddailed a rise in crime near these storefront dispensaries in lIther cities. The crimes included robberies, assaults, burglaries, murders, and attempted 1ll1Irdels...!..! Even though marijuana sroreti'ont businesses do not currently exist in the City of J\;lll11lcley Pnrk. C{'llltornia, it issued a moratOrlUlll on them after shldying the issue in August of 2()(il\ _F ;\tkr 811nwlng these establishments to operate within its borders, the City of\Vest 1-1l>IIY''l)<.ld. Calik"nia passed a similar moratorium. The moratorium was "prompted by incidents of armed burglnry at some of the city's eight exist1llg pot stores and complaints from neIghbors about Increased pedestrian and vehicle traffic and noise ,,-Ir) C TRAFFIC. NOISE. AND DRUG DEALING !Illl'etl:,ed noise and peckstrian traffic, Illcluding nonresidents in purslllt of man juana, and out of are a Cl"Il1l i 11<.11s 111 seJrch of prey, are cOllllllonly encountered just olltsIde marijuana dlspensanes,..l.7 as well ~IS .J I'.L\~-rel..\tt::d I) rJenses ill the vIe i1l1 ty-l1 ke resales of products just obtained inside-since these Illi.II-ljUdllcl (cllkrs regubrly ,lttnlct marijuana growers. drug users, and drug twffickers.""x Shal"1I1g JUS! purc)wsed lllariju<ln:1 outside dispensanes also regularly takes place.~{) Relh"r than the "serious[y il[," for whom medical marijuana was expressly intended,slI "'perfect[y healLl1y. young people frequenting dispensaries'" are a much more common sight.51 Patient records seized by law enforcement officers n'om clispens;Jries during raids III San Diego County, California II) December or' 2005 "showed that 72 percent of patients were between 17 and 40 years old ,,52 Scwl nl1t' "dl1l1tled l))C1rijual1a trafticker, "The people [c1eal with are the same faces r was dealing \\ Ill1 J 2 ye;Jrs ago but nQW. because of Senate Bill 420, they are supposedly legit. [can totally see I I j .-" \\. l~.' cops are )llll1lller... .. Reponedl)'. n security guard sold halra pound of marijuann to an undercover officer just ollt.3ide a clispells;Jry in Morro Bay. Ca]ifor1l1a,s.~ And. the mere presence ofmarijllana dispensaries encourages illegal growers to plant, cultivate, and transport ever more marijuana, in order to supply and sell their crops to these storefront operators In the thriving medical marijuana dispensary l11;Jrket, So that the national domestic marijuc1l1Q yie'ld has been estimated to be 35.8 billion dollars, of which <.1 1 J.8 hilliotl dollar share is California grown.S5 It is a big business. And, although the operators of ."'llIe dispensaries will claim that they nnl1' accept monetary contributions for the products they ~~ 2(}09 California Police Chiefs Assn. 9 All Rights ReseoJed 14-58 cI"l'ense. and clo not sell marijuana, a patron willnnt receive any marijuana until an amount of money acceptable to the dispensary has changed hands. D. ORGANIZED CRIME, MONEY LAlINDERING, AND FIREARMS VIOLATIONS Illll.C~I:-;il1g1y, reports have been ~urbcl11g about organized crime involvement in the ownership and l)lk'l"<.ltj(lJl ()~'lllDrtjLlana c1ispensal~ies. inc)udlllg Asian and other criminal street gangs and at least one 1llt'11lhcr (lfthe /-\rmenian Mnfia.)(J The dispensaries or "pot clubs" are often used as a frant by ur:;:llllzed Crime gangs to trunic 111 drugs Jlld launder money. One slIch gang whose territory Illcluded San Francisco and Oakland. Call1<.1rnia reportedly ran a multi-million dollar business Opt'ratlng ten warehouses in which vast amounts of marijuana plants were grown.)f Besides seizing over 9.000 marijuana plants during surprise raids on this criminal enterprise's storage facilities. fecleral onicers also conliscated three lirear111s5' which seem to go hand in hand with medical ll1~lrijLlalla cultivation and dispensaries.5'! ,\'b'iJucln" storei'ront businesses have allowed criminals to tlourish in California, [n the summer 01' 2f)ii7. lhe City of San DH=go cUl1per~lted \-vith federal authorities and served search warrants on :~L'v..:rall11anjuan~1 dispensary locatlons. In ac!c!Jtlon to marijuana, many weapons were recovered. inclucltng a stolen handgun and an M-IG assault rille.,,(l The National Dnlg [ntelligence Center rerlllrts that marijuana growers are employing armed guards, L1Sll1g explosive booby traps, and 11lurdell11g people to shield their crops. Street gangs of all national origins are involved in trallspurtlllg and distnbuting: marijuana to meet the ever increasing demand for the drug.iJi Active .A:::icln gangs have Included members of Vietnamese organized crime syndicates who have migrated from Canada to buy homes throughout the United States to Lise as grow houses.62 S(lll1t' i)r all ot.'the processed harvest ofnlarijuana plants nurtured 111 these homes then wind LIP at .~l(li'L:rnmllllarijuana dispensaries owned ;]nd operated by these gangs. Storefront marijuana businesses are very dangerolls entellJrises that thrive on anci\1ary grow operations. Besides fuelin;; marijuana dispensaries, some monetary proceeds from the sale of harvested Illarijuan;] derived from plants grown inside houses are being used by organ1zeu crime syndicates to fund nlher Iegitlll1ute businesses for pl'Otit and the laundering of money, and to conduct illegal bUSiness ()per~ltions like prostitutlun. extortion, and drug trafficking.I1J Money from residential grow ll!l,.:rcltJuns IS also sometimes traded by criminal gang members for fireanlls, and used to buy drugs, pcr.~(lll,-lI vehicles, and additional hOllses for more grow operatlOl1s,64 and along with the illeg;]l income derived from large-scale ~rganizeu crime-related marijuana production operations comes . (, ~ \\'HJesprend IllCCll11e tax evasIon. - I~. POISONINGS Another social problem somewhat unique to marijuana dispensaries is poisonings, both intentional and unintentional On August I G, 2006. the Los Angeles Police Department received two such reports, One involved a security guard who ate a piece of cake extended to him from an operatorofa lll~lrIjuana clillle as a "gifL" and soon aftenvard felt diZZY and disoriented.66 The second incident I,,:nllcclned a UPS drivel who experienced similar sYlllftoms after accepting and eating a cookie given to hilll by an operator ora different marijuana clinic.l) @ 2009 California Police Chiefs Assn. 10 All Rights Reserved 14-59 Oll-IER ArWERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DI:iI'ENSARIES Olher odverse secondary impocts I'rom the operotion of mariJuona dispensaries include street dealers lurking abnut dispensaries to offer a lower price for marijuana to arriving patrons; marijuClna smoking in public and ill front of children in the vicinity of dispensanes; loitering and nuisances.: acquiring l11<lriJlI<lll;:t and/or money by means of robbery of patrons gomg to or leaving dispensaries; all increase in hurgbnes at or near dispensaries: a loss oftrnde for other commercial businesses located near di:-;)lell~aries: the snle at dispensanes of other illegal drugs besides marijuana; an increase in traffic ~1l'Cldt:llts Dllcl driving under the intll1cnce arrests in which marijuana IS implicated; and the failure of I' bl I' (,R ]ll:II'ljLli:lll~ll ]~pt:IlS::lry operators to report ro Jenes to po lee, SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE A, UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS Ctlit',roia', le:;,,1 requirement under Cali 10 rill 0 Health and Safety Code section 11362,5 thol 0 physil'l~ll1'S recommendation IS required for <.l patient or caregiver to possess medical marijuana has 1l.:::....i:lll'd in (Ither undesir8ble outcomes: \vholesale issuance ofrecommendatiol1s by unscrupulous ph~ ."i(l~lllS seeking [l qUIck buck. and the prnllteratil)n of forged or fictitious phYSician :-el.'!llllll1t:llda(l{)nS, Some doctors link lip with a marijuana dispensary and take up temporary residence In ~l IUGII hute! ruum where they advertise thell' appearance 111 advance. and pass out medical marijuana use recommendations to 0 line of"potients" at "about $150 a pop,"(" Other individuolsJust ma ke up their uwn phony doctor recommendations,711 which are seldom, if ever, scrutinizeJ by dlSI)ensary employees for authenticity Undercover DEA agents sporting fake medicalmarijuJna ttcnllllllendatinns were readily able to purchase marijuana from a clinic.71 Far too often, Califu1l1w's llledlcalmariju:'lna law is used as a smokescreen for healthy pot users to get their desired drug, and for pnl)lnetnrs Ofllli.lnjuana dispensaries to make money off them, without suffering any lel2:al . 7~ . ~ reperClISSlons. - ()Il I\'[arch 11,2000, the Osteopathic tvledicol Board ofColltomia aJopted the proposed decision n;\'l)kin:; Dr. Alfonso Jimenez's Osteopathic PhysicH:l1l's and Surgeon's Certificate and ordering hIm to pay ,~74,323,39 in cost recovery, Dr. Jimenez operatedll1ultiple morijuano clinics and odvertised his services e.,<tensively on the Internet. Based on information obtained from raids on marijuana dispelNuies In Son Diego, in Moy of2006, the San Diego Police Department ran two undercover op..,::rattons on Dr Jimenez's clinic in San Diego, [n January of2007, a second undercover operation \\'~l;'; conducted hy the Laguna Beach Police Department at Dr Jimenez's clinic in Orange COllnty. Ha"d "" Ihe resulls ol'the ulldercover opemlions, the Osteopathic Medical Board chorged Dr Jilllt:ne2 with gross negligence and repeated negligent acts in the treatment of undercover operatIves ]1(l;';l1lg as patients. f\fter a six-day hearIng. the Administrative Law Judge (ALJ) issued her decision j-lnLilllg that Dr. Jimenez violated the standard of care by committing gross negligence andlepeated negligence in care. treatment. and management of patients when he, among other things. issued medical marijuana recolllmendations to the undercover agents without conducting adequate Illedicnl e.\~lllllnatlons, faileu tu gain proper informed consent. and failed to consult with any primary care ~llld/()r treating physicians or obtain and revie'vv prior medical ,records before iSSlllllg medical marijuana recommelldJtions The ALl also found Dr. Jimenez engaged in dishonest behavior by prel)aring false and/or mIsleading merlical records and disseminMing false and misleaulIlg C1d\cnisillg to the public, includill:; representin:; hll11Selfas" "Cannabis Specialist" and "Qualitied iYkdlci.ll Mal ijLlnml ExamIner" when no slIch fOnllal specialty or qualification existed. Absent any @ 2009 California Police Chiefs Assn, 11 All Rights Reserved 14-60 rCLjL!t':-:ted administrative agency reconsideration or petition for court review, the decision was to beC"Ill~ enectlve April 24, 2009 B, PROLIFERATION OF GROW HOllSES IN RESIDENTIAL AREAS 111 recent years the prolil'eratiol1 01' grow houses in residential neighborhoods has exploded. This phenomenon IS country wide, and ranges from the purchase for purpose of marijuana grow operations "I' slllall dwellings to "high priced McMansions ,,7] Mushrooming residential marijuana grow operations have been detected in Calilornia. Connecticut, Florida, Georgia, New Hampshire, North Camlil1a. OhiO, South Carolil1a, and Texas.'" In 2007 alone, such illegal operations were detected and shut down hy lederal and state law en lorcement ofticials in 41 houses in California, 50 homes in ['I"IilI". ,,"d II h"lllcs il1 New Halllpshire.'! Since then. the number of residences discovered to be so 111l11,Ktcd hns Illcreased exponentially. Part of this recent influx of illIcit residential gro\v operatIOns is bel'IllS" the "THe-rich 'B.e. bud' strain" of marijuana onginally produced in British Colulllbia "can be grown only In controlled indoor environments." and the Canadian market is now reportedly sal-urated \vith the product ()f"co111petin~ Canadian gangs," often Asian in composition or outlaw Ill"torcvcle gangs like the Hells Angels.)" Typically, a gutted house can hold about I ,000 plants that will each yield almost halfa pound ot'smokable marijuana; this collectively nets about 500 pounds of usable marijuana per harvest, with an average of three to four harvests per year.77 'vVith a street value "I' \J.()()() to $5.000 per pound" tor high-potency marijuana, and such multiple harvests, "a successti.iI ~n,\\' 1ll111se Ci.lll brIng III between $4.5 million nnd $10 million a year. .,,78 The high potency of h:.,ir()j)IJl1lcally grown Illtlrijuana can C()1l11l1~1Ild a price as much as six times higher than commercial 7'J ::r~IJc 1llarJJLli.\1l~1. C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES In Humboldt County. Califomia. structure tires caused by unsafe indoor marijuana grow operations hale b"come comlllonplace. The city of Arcata. which sports four marijuana dispensaries, was the site nl' ~\ hOllse tire 111 which a fan had tJllen over and ignited a fire; it had been tunled into a grow hOllse h,: 11\ temnl. Pcr Arcata Police Chle!. Randy Mendosa, altered and makeshift "no code" electrical ....:l';." iCl' CllIlllcctinns and overloaded wires llsed to operate high-powered grow lights and fans are l'lllllI1H\11 ('-lUStS of the tires. Large Indoor marijui1IlG growing operations can create such excessive d,.,,,v, "I. electricity that I'G&E power pole translom1ers are commonly blown. An average 1.500- \quClre-toottract house used tor growing marijuana can generate monthly electrical bills from $1,000 t" :SJ.Ollll per month. From an environmental standpoint. the carbon footprint from greenhouse gas emlssiollS created by large indoor marijuana grow operations should be a major concern for every COlllllll1l11ty 111 terms of complying \vith Air Board AB-32 reguiationsl as well as other greenhollse gas reductHll1 policies. Typically. air vents are Cllt Illto roofs, water seeps into carpeting, windo\vs are bl~lcked out. holes are CLlt in floors. wirIng is jury-rigged. and electrical circuits are overloaded to ,)pClate ~row lights and other apparatus. When tires start. they spread quickly The. tvlay J I. 2IJOS edition of the Los AlIgcl~s Tillles reported. "Law enforcement otTicials estimate that CiS III/lny 'IS 1.01J0 01. the 7.500 homes in this Humboldt County community are being used to cultivate marijuana, slashing into the housing sto~k. spreaul11g building-safety problems and sowing neighborhood discord." Not surprrsingly. in this bastion of Ebera! pot possession niles that authorized the cultivation of up to 99 plants for medicinal purpose. 1110St structural fires in the community of I\re/lter have been of late associated with marijuana cultivatlon80 Chief of Police Mendosa clantied LIli.ll till' actuall1l1ll1ber of marijuana gl"Ow hOllses in Areata has been an ongoing subject of public deh~lte Mendosa added, "\Ne know there Jrt llumerOllS grow hOLlses in almost every neighborhood in ~llld ;'Hound the city. \vhich has been the source of COil stant citizen complaints." House fires caused by ,~ 2'JOO California Police Chiefs Assn. 12 All Rights Reserved 14-61 grnwcr-l11stalled mnkeshift electrical wiring or tipped electrical fans ale now endemic to Humboldt (-OUllt)' .:.; I C'h,e!' 1vlendosa olso observed that smet ll1alljuana has an illicit street value of up to $3,000 pel pound, ll1~lrijl1ClIla grow houses h.1ve been susceptihle to violent armed home invasion robberies. Large-scale Ill:.! i'ij Llana gro\\!' houses have removed sigl1l tlcant numbers or arfordable hOllses from the resldentwJ renlalnli.lrket. 'vVhen property owners discover their rentals are being used as grow houses, the residences are often left with 111Jjor stwctural damage, which includes air vents cut into roofs and Ilools, water dall10ge to floors and walls, and mold. The June 9, 2008 edition of the New York Tillles shn'VvS:J.ll 11l1ldentitied Arcata man tending his indoor grow; the man clainled he can make $25,000 evcry thlee 1110nths hy selling marijuana grown in the bedrooTIl of his rented house 82 Claims of ostensihle l1ledicalmariJuana growlllg pursuant to Califon1ia's medical marijuana laws are being dll"~l!Kt'd as a mostly t~llse shield in flJl attempt tojustify such illicit operations. ~~t'lll1er is lire an UnCUl1l111011 ()ccurrence at gnnv hOllses eJse\vhere across the nation, Another (Il'\ lilTed Ilullung ago 1Il r-kdiday, Flnricb.:'~ To compound matters further, escape routes for jlr,-Il~htt:rs ~lre often obstructed by hlucked windows in gro\v hOllses, electric wiring is tampered With l(, "teal electricity, and some resJ{..knces are even booby-trapped to discourage and repell..ll1w<1nted 1''+ Intruders. D. IN( 'REASED ORGANIZED GANG ACTIVITIES ,\ I, lilt: \\llth marijuana dispensaries and the h':! ClW operations to support them come members of lll"g~llll:--:('d criminClI grlllgs tn operate and protit from them. Members of an ethnic Chinese drug gang \\\.:rc dl;,covered tll have operated 50 indonr grow operations in the San FranCISCO Bay area, \vhile \.='uhan-American CI il11c organizations have been found to be operating grow hOLlses in FloridD. and ebt'where in the South. A VietnJl11ese drug ring was cflught operating 19 grow houses In Seattle and Pllget SOlllld1 \Vashingron.:~5 ell July of2008, over 55 Asian gang members \vere indicted for narcotjcs trofricking lnmorijuo11a anJ ecstasy, Illcludlllg members of the Hop Sing Gang that had been octively operating I::orijllana gnw/ operations in Elk C;ro\ie and elsewhere ill the vicinity of Sacramento, ('<.111 rl)1'"1l1J.,'h E. E:\l'OSI'RE OF MINORS TO MARIJUANA IVlmurs \.v]1o are e.'\posed to marIjuana at dispensal1ts or residences where marlJLlD.na plants D.re grown may be subtly int1uencecl to regard it as a generally legal dmg., and inclined to sample it. In gn..J\v hOll~.;es, children are exposed to dangerous fire and health conditions that are inherent in indoor grow opel'atluns.:';; Dispensaries also sell marijuana to minors.s:,; F. IMl'AIRED P\.IRLlC HEALTH Ind.l'-\[' mcIrlju<.lna gnJ\v npc!ation:; emit a skunk-like udnr,X() and foster generally unhealthy conditions l\k,,I:" <.tll()\,vlni; l'hemlcals and ['ertillzer:; to be placed in the open, an increased carbon dioxide le'v'ej wilhlll the gHnv hnLlse, and the acculllulatil)ll of mold, 1)0 all of which are cbngerous to any children or ~ldlllts who may be living in the reSidence.')] ~dthol..1gh many grow houses are uninhabited. '9 2n09 Californio Police Chiefs Assn. 13 All Rights Reserved 14-62 G. LOSS OF BUSINESS TAX REVENUE When business suffers as a result of shoppers staying away on account of traffic, blight, crime, and the undesirability of a particular business district known to he frequented by drug users and trat1lckers, and org<lllized criminal gang members, a city's tax revenues necessarily drop as a direct consequence. H. DECREASED QUALITY OF LIFE IN DETERIORATING NEIGHBORHOODS, BOTH BUSINESS AND RESIDENTIAL IVlal]JLlLllla dispensaries bring in the crimIna! elemellt and loiterers, which in tU1l1 scare off potential hU:~llliCSS patrons ufnearby legitimate businesses, causing loss of revenues and detenoratioll of the ~lfkckd business lhstlict. LikewIse, empty homes lIsed as grow hOllses emit noxioLls odors III resldentlal neighborhoods, project Irritating sounds of whirring fans,l):?' and promote the din of vehicles coming and going at all hours of the day and night. Near harvest tilne, rival growers and other 11lll1l\"ited enterpnsing criminals snmetlIlles invade grow houses to beat "clip crews" to the site and rip ntflll;llure plants ready for harvesting. As a result, violence often empts from confrontations in the ~l n~'(1ed reSidential neighborhood.'n t'LTli\IA n: CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS UIl bahlllce, any utility.' to medical marijuana patIents in care giving and convenience that marijuana dispensaries may appear to have on the surface is enonnously outweighed by a 111uch darker reality thilt is punctuated by the many adverse secondary effects created by their presence in communities, lel'tlllnted here. These drug distributIon centers have even proven to be unsafe for their own projllletnrs. I'()"."IBLI~ LOCAL GOVERNMENTAL RESPONSES TO iYIARI.JlJANA DISPENSARIES .-\. IMPOSED MORATORIA BY ELECTED LOCAL GOVER.1'\'MENTAL OFFICIALS \Vhtle ill I:he process of investigating and researching the issue of licensing marijuana dispensaries, as ,:Ill Interim measure cIty coullcils may enact date-specific moratoria that expressly prohibit the presence u r IlliJrlJlli.lnG dispensaries, whether for medIcal use or otherwise, and prohibiting the sale of marijuana \II ,my fornl un slIch pn:l1lises, anywhere withltl the ll1corporated boundaries of the city until J ~Ill'(dii..::d dJtc Before sllch a moratoriulll '5 date of expiration, the moratOrIum may then either be l'.'<l\::ndcd or ~l cIty ordinance enacted completely prohibiting or otherwise restricting the establishment alld uper;.aion of marijuana dIspensaries, and the sale of all marijuana products on slIch premises. COllllt) sLlpervis'Jrs can do the same with respect to marijuana dispensaries sought to be established within the unincorporated areas ofa county. Approximately 80 California cities, including the Cities ot' Antioch, Brentwood, Oakley, PlIlole, and Pleasant Hill, and (, counties, including Contra C"5ta C()unty, have enacted moratoria banning the eXIstence of marijuana dispensaries. In n novel appronch, the CIty of Areata issued a muratorium 011 any new dlspensanes in the downtown area, based on no I .. I . . j I '," <1::;l"IcLlllUr~l actIVIties lelllg permlttel t(J ocellr tlere. '92009 California Police Chiefs Assn. 14 All Rights Reserved 14-63 B. !!\'II'ChF.D BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While the Clllllllasslonale Use Act or. 19% pel1l1its seriously ill persons to legally obtain and use Jllarl.iual1~l t()r medical purposes upon a physician's recommendation, it is silent on marijuana dispensaries and does not expressly authOrize the sale of marijuana to patients or primary caregivers. Neither Proposition 215 nor Senate Bi[1420 specifically authonzes the dispensing of mariJuana in any r'1! III From a storer.ront business. And. no state statute presently eXists that expressly permits the 11Cl'llsint: or operatloll ofmariJlI,-l11a dispensaries.I)) Consequently, approximately 39 California cities, IllCludlll!; tht: Cities ofCOnCl)rd ane! San Pablo, and 2 counties have prohibited marijuana dispensaries \\"1111111 {hc:-ir respective geeJgraphical bOlllll!;:lrleS, while approximately 24 cities, including the City of :VLlt"tilltz. tlnd 7 cOllnties have allowed slIch dispensnries to do business within their junsdictions. [vl'nlhe complete prohibItion ormarijuan<l dispens.1nes within a given locale cannot be found to run <It(;ul oFcmrent Calitornia Ii'" with respect to pernlittedllse of marijuana for medici",,1 purposes, so long as the growing or lISe of medicalmarijllClna by a city or cOllnty resident in cOnfOrl11ClIlCe with state I. .b I"" ;1\\ 1S n()t pnJSCTI e(. [n "lowmher ot. 2004, the City of Br<Impton In Ontario. Canada passed The Grow House Abatement I{:, -1<1\\. \vlllch ;lUthorized the Ctty cOLlllcil to appoint inspectors and local police ofticers to Inspect .~ll:-'jl<.:.'Cll;d grl1\\' hOl1se~ and render safe hydro meters. unsafe wiring, booby traps, and any violation of th,: Fire C ode or Building Code. and remove dIscovered controlled substances and ancillary equipment lksl~lled [0 !.!row and manufacture sLlch substallces. at the involved homeowner's cust.'J7 And. after - " stak legislators became appalled at the proliferation of for-profit residential grow operations, the State elF ,.[orida passed the Marijuana Grow HOllse Eradication act (Hollse Bill 173) in June of200S The ,:;()\'~rnor signed this bill into law. making owning a house for the purpose of cultivating, packaging, ~lll<l dislribu[ing marijuana n thlrd-ckgree felony: growing 25 or more marijuana plants a secolld- dq~~ree felony; and growing "25 or more marijuana plants in a home with children present" a first- de:;ree relony.l)X ft has been estimated that approximately 17,500 manjuann grow operations were ~lcll"e in late 2u07 I)l) To avoid becoming a dumping ground for organized crime syndicJtes who dt:l'lde to lllCl\e their illegal grow operations to a more receptive legislative envlronmenL Callfoll1ia ill 1< I "tiler states Illight be wise to quickly tallow suit with similar bills, for it may already be I . 1111) l~lppCnIllg. C IMPOSED RESTRICTED ZONING AND OTHER REGULATION BY ELECTED LOCAL GOVER1'lMENTAL OFFICIALS II. ,<> Inclilled. rather thall completely prohibit marijualla dispensaries, through their zoning power City <.llld l"PUllly un-Jewls have the authority to restrict owner operaturs to locate and operate so-called "nh:.:dil'alm<.lrIJuuna dispensaries" in prescribed geographical arcus of a city or designated UlllllC('r]l()r~lled are::rs ofa county, and require them to meet prescribed licensmg requirements before bellI::: allo\ved to do so This IS a risky course ofaclion though for would-be dispensary operators, and perhap;; Imvlllakers tou, since fedeu:ll authorities do Ilot recognize any lnwful right for the sale. plll"i..:has\::. or Lise of mariju,:l.l1Ll for meclicalust: 1)1' otherwise anywhere in the Ul1lted States, including Callfomia. Other cities and counties have included as a condition of licensure for dispensnries that the oper"tur shall "violate no federal or state la,,'" which puts any applicant in a "Catch-22" situiltion ;-;illcc t() ~ederal Zlllthorities OilY possession or sale nfmarijuana is Gutomatically a viobtlOtl of federal 1<.\\.\ Still llther lllunicipalities have recently enacted or revised comprehensive ordinances that address a variety or medical marijuana issues. For example, according to the City of Arcata Community @ 2009 California Police Chiefs Assn. 15 All Rights Rese~/ed 14-64 Development Department in Arcata, California, in response to constant citizen complaints from what 1",c1 become an extremely serious community problem, the Arcata City Council revised lts Land Use Sr:lIlll:lrds [(11' lvIedlcal Marijuanc Cultivation and Dispensing. In December of2008, City of Arcata \ )ldl\lllIlCC- ::::13:-)1 \vas enacted. It includes the following: provisions: ..( atcgories: I Personal Use 2. Cooperatives or Collectives Medical Marijuana for Personal Use: An individual qualified patient shall be allowed to cultivate mcdicalmariJuana within his/her private residence in COnf01l11anCe with the following standards: I Culliv:1!ion area shall no! exceed 50 Slluare feet and not exceed ten feet (10') in hei~ht. a. Cultivation lighting shallnnt exceed 1200 watts; b (ins products (C01, hutane, etc.) for medical marijuana cultivation or processing is prohibited. c. Cultivation and sale is prohibited as a Home Occupation (sale or dispensing is prohibited). d. Qualified patient shall reside in the residence where the medical marijuana cultivation occurs; e. Qualified patient shall not partiCipate in medical marijuana cultivation in any other residence. I" ReSidence kitchen. bathrooms. and primary bedrooms shall not be used primarily lor llled leal 111(\ rijuanu culti va tion: " Cultivation area shall com I'll' with the California Building Code 9 12034 Natural Ventilation or ~ 402,) Mechanical Ventilation. h. The medical marijuana cultivation area shall not adversely affect the health or safety of the nearby residents. 7 City Zoning Administrator my approve up to 100 square foot: a. Documentation showing \\lhy the 50 square foot cultivation area standard is not teasible. b Include Written permission from the property owner. e City Building Olliei,,1 must Inspect for Calitornia Building Code and Fire Code. d .\1 a minll11ul11. the medicall11c1I'IJuana cultivation area shall be constructed with a 1- hOllr fire\val] assembly of green board. e. Cultivation of medical mariJuana for personal use is limited to detached single family residential properties. or the medical marijuana cultivation area shall be limited to a garage or self.contained outSIde accessory building that is secured, locked. and fully enc lased. -l i\'lcdical lVlariju<ll1a Cooperatives or Collectives. r-\Ikl\ved \Nith a Conditionnl Use Permit. In COIlll11t:tTlaL InclustriJI, and Publ1c Facility Zoning Districts. BUSiness form mllst be a cooperative or collective. Existing cooperative or collective shall be in fi.ill compliance within one year. Tl)("<.ll number of medical marijuana cooperatives or collectives is limited to four and ultimately two Special conSideration if located within a f\ 300 foot radius from any existing residential zoning district, h. \rVith11l 500 feet of [111Y other 1l1edlcal1llJrljuana cooperative or collective. , -' 5 (; (~ 21)09 California Police Chiefs Assn. 16 All Rights Reserved 14-65 7 g c l) In c Within 500 teet from any eXlStlllg public park, playground, day care, or school. Source of medical manjU::1l1<.1. a. Permitted Cooperative or Collective. On-site medical marijuana cultivatlon shall not exceed twenty-rive (25) pel cent of the total 1100r area, but in no case greater than 1,500 sqoare feet ancl not exceed ten feet (10') in helght. CHI~sitc Permittecl Cultivatlnn. Use Permit application ancl be updated annually. Quali lied Patlen!s. Mecllclrl marijuana acqulred from an individual qualified patient shall received no lllonetnry remittance, and the qualified patient is a member of the medical \l1;lrljuo.na cooperative or collective. Collective or cooperative may credit its members for medicallllanjuana provided to the collective Or cooperative, which they may allocate to other members. OperatJons Manual at a minimum include the following information. a Staffscreening: process lllcluding appropriate background checks. b Oper<Jting hours. c. Site, tlollr plan 01' the lCrctlity II Security 1l1CaS\lre~ ]ClcJtecl Oll the premises, including but not limited to, lIghting, alarms, and auromatic le1\V enforcement notification. Screening, registration and v,llid<ltion process for qualified patients. Qu,tlitied patient records Llcqulsition and retention procedures. Process for tracking melhcal mat Ijuana quantities and tllVentory controls l11cluding (In-site cultlvatlon, processing, nnd/or medical nlarijuana products receIved from outside sources. ['vreasures taken tn lllill1111ize ur offset energy use from the cultivation or processing of medIcal marijuana. Chemicals stored, used and any eftluent discharged into the City's waste\VJter and/or SlDr11l \vater system. Oper::!lln!:; Standnrds. a. No dispensing medical marijuJna more than tWIce a day. b Dispense to an individual qualitied patient who has a recn111mendation. The medical ll1ariju~ll1a cooperative or the physlcian's reco1l1mendatwn is current and valid. Display the client rules and/or regulations at each building entrance. S111obng, lllgestlng or consuming medical marijuana on the premises or In the Vlcilllty IS prohibited. Per:-.;OllS under the age or' eighteen (18) are precluded from entering the premises. No on-site dl~:;pl"y of lll~HljuC\na plants. No ciIstributlon of live pl8l1ts, stmts and clones on through Use Pemlit. Pel1l1it the Oil-SIte display or sale of marijuana paraphenlalia only through the Use PermIt. l'v[aintain C111 necessary permits, and pay all appropriate taxes. Medical marijuana cooperatives or collectives shall also provide invoices to vendors to ensure vendor's lax liJ.hility responsihility; Suhmit an "Anllual Performance Review Report" which is intended to identify effectiveness (If the apprnved ll,;;;e Permit, OperatlOns Manual, and Conditions of Approved. as v"ell J$ the Identij-ICJtion Elnd Implementation of additional procedures as deemed necessary Monitoring revie'vv fees shall accompany the "Annual Perfonnance Review Repot1" for costs aSSOCiated with the revie\v and approval of the report. Pe1111it Revocation or Moditication, A use permit may be revoked or modified for non- compliance with one or mOle of the items described above." h c. c f g. h, valid, verified physician's collective shall verit", that c. d. '..:' t' ~. h. I. .I k. 17 All Rights Reserved @ 2009 California Police Chiefs Assn. 14-66 LIABILITY ISSlIES \rVilh respect to Issuing business lIcenses to !lli1rijuana storefront facilities a very real issue has ~lr1~c:ll' counties and citles are arguably aidIng and abetting criminal violations of federal law. Such ,lcllons clearly put the counties permitting these establishments in very precarious legal positions. i\]dill~ dlld abetting a crime occurs 'vvhen someone commits a crin1e, the person aiding that crime 1\111_'\\ lhe criillllla! offender 111tended to commit the crime, ancl the person aiding the crime llltendecl \() : !....;:-, I."'; ( the -.:ril1lilli.ll offender]11 the cnmnllSSl0n of the cr1me. rh,~' k~dl del~initllln nf'lIlling and aheltlllg cuuld be applied to counties and cities allowing marijuana 1'~ll'llltiL's t(1 opell A COllllty that has been infotl11ed about the Gonzales v, Raich deciSIon knows that all marrjuana activity is federJl1y illegal. FUllhermore, such counties know that individuals involved in !h~ mariJuJna bllslntss are suhject tn federal prosecution, When an llldividual in C.1lifomia cLllli\:"~lks, ~'wssesses, transports, or uses marijuana, he or she is committing a federal crime. .'\ I~'\)unty is.sum!; a business licells~ to a marijuana facility knows that the people there are L'I :rnillltting kderal CrImes. The cOllnty aL,o kno\vs that those 1l1volved in providing and obtainmg lll~lrlJuanJ ale 11ltentionally violating federal law. Till;'; very prublem is why some counties are re thinking tbe presence of marijuana facilities in their cOllllllunities, There is a valid fear ufbelng prosecuted for aiding and abetting federal drug crimes. Pre;.;en!-Iy, two counties have expressed concern that CalifoD1ia's n1edical marijuana st.1tutes have l,hlLTd them in slIch a precarIous legal position. Becallse of the serious criminal ramifications 111\ I,[ved In issuing business permits ane! allowing storefront n1arijuana businesses to operate within iIlL'!r h()rdec~, Sail Diegu and San Bernnrdino Counties filed consolidated lawsuits against the state ;.;c<.:kin:; tn pre\t:llt the State ofCahfnrnia from enforcing its medical mariJuana statutes which i'lli~'nll;llly ;;ubJc\.:l them t() cril11inalllability, ami squarely asserting that Califonlia medical 1l1~1i"IJU,-11l;.l Imvs ale preempted by fecleral Ie]\-\.' ill this area. After Califoll1ia's medical marijuana laws \'C" e al I lIphe Id at the tria I level, Ca I I fOln ia' s Fourth District Court of Appeal fOllnd that the ::itate uf CalltlJrnia could mandate counties to adopt and enforce a voluntary medical marijuana identitication (.:~ml ;;y::;tem, and the appel!ate court bypassed the preemption issue by finding that San Diego and San Bc-rnarclin(l Counties \3cked standlllg to raise thIS challenge to California's medica! marijuana 1<1\\ s, Fnllnwing this state appellate court decision, llldependent petitions [or review filed by the two CllllIHic:;:; \\'e:-lt: both denied by the CiJiifllrnia Supreme COllrt. I~"I,~'+' bcc'lu,c nt' the quandary that county and city peace officers in CalIfornia face In the field \\'lk'll CPl1J"rolltcd with alleged medlC.11111arlJuana with respect to enforcen1ent of the total federal cnm1llal prQhibltioll of allmarljuana, and state exemption from criminal penalties for medical 11l.:111Jl1<.lna L1sers J.nd caregivers, petitlO!1S for a writ of cetiiorari were then separately filed by the two cC1unlies seeking review of this decision by the United States Supren1e Court in the consolidated C<lses of Cnllllt.\ oj'Sun Diego, COUII(V olSun Bernardino. d/Uf Gary Penrod. as SherUj'(?f"/he County of ,)UfI BCrl/dn/l!tO l'. San Diego l.[orJnl. /)'tatc o/Call!urnw. and S.1Ildra Shewry. Director C!f fl/f.! (~(/JI(()f"II1U Depurfllll'JI/ r?FHea!rh ,)'erviccs II/ her (dfic!(l! capacl!.V, Ct.App. Case No. D-5-J33.) The 1~II;h <: "urlllelS requested the State otTalrfomia and other interested parties to file responsive briefs III i:lt.' [\\-1) C\llIlltles' and Shel iff Pen] od's \vrit pditions before it decides whether to grant or deny i',', ieil l,['these cunslJl,datecl cases, The petitioners would then be entItled to file a reply to any filed rest,(>nse, It is anticipated that the U~S~ Supreme Court will formally grant or deny review of these t.:(lll:':;(llld~lteLl cases in late April or early May of200t). 192009 California Police Chiefs Assn, 18 All Rights Reserved 14-67 III ,Illulher caSe. Cllr o(Can/ell Grrn'c' ,. Super/or Cllllrl (2007) 157 Cal.AppAth 355, olthough the k'tklal pr\:?el1lpliull issue was not squarely reused or addressed in its decision, Califol11ia's Fourth [J1.,IIICI I' "un uf.Appcal!{lUlld that puhllc policy considerations allowed a city standing to chollenge ,J :'.;I~I!t.' tnnJ court's Older cl1recting the return by a city police departnlent of seized medicnlmariJuana In" l'ersull determined to be 0 patiellt. After the court-ordered return of this federally bonned suhstance was upheld ot the intermediate appellate level. and not accepted for review by the Cal'[(lrnio Supreme Court, a petitioll fur a writ u!'certiorari was filed by the City of Garden Grove to the II .S. Supreme Court to consider ond reverse the state appellate court decision. But, that petition was ,dso denied. However, the case ofPeop/c 1'. Ke/lv (2008) 163 Cal.AppAth 124-in which a sllcces:-;ful challenge was made to California's Medical i'vlarijuana Program's maximulll amounts of nwrlJuam and marijuano plants permitted to be possessed by medical marijuana patients (Cal. H&S (.( Ide see 1 1](,2.77 f!f SC(! ). which limits were found at the court of appeal1evel to be without legal ~lLllll(lrl[Y fnr the state to impose has biCen <Iccepred for review by the Califo111ia Supreme Court on tht. IS~lIe Df whether this law \V8S all improper amendment to Proposition 215's CompaSSlOnJte Use AClo!'I')% A SA~'IPLli\G OF EXPERTENCES WTTH MARIJUANA DISPENSARIES MARLJtiANA DISPENSARTES-THE SAN DTEGO STORY \ I"; '1 tilt: jl~lSSi..lcl' lJf Prllp(}~ltiol1 215 in I ()()b, law t:nforct:ment agency representatives in San Diego, C:'lllJ'llrlllLl met many times tu forllllllate a comprehensive strategy of how to deal with cases that may arl,~l:: 1,lut l.1f the nev./ ]0.\\1. In the end It \vas decided to handle the matters on a case-by-case basis. In adll1t1ol1. questinnn<.llres were developed for pJtient, caregIver, and physician interviews, At times patIents without sales indicia but large grO\..vs \vere interviewed and their medical records reviewed 111 ]naking issuing decislOlls. In other cases where sales inlhcia and amounts supported a tinding of sak:s the CriSt's \Vere pursued. At 1110St, t\VO cases a month were brought for felony prosecution. ill 21111). ~JIl Diego COUllty" newly elected Dlstnct Attomey publicly supported Prop. 215 and \\ ~I[llcd her nt':wry created Narcn(lcs DIVISiOn to deSIgn procedures to ensure patients were nnt caught up ]11 Glse prosel:lltiollS. As many zilready kllll\V, 1aw entllrcement officers rarely arrest or seek pn1St'clltlon ora patient who merely pusses::;es pels(Jnaluse amounts. Rather) it is those who have saIL,) ~llllOUllts III product or cultivation who are prosecuted. For the next two years the District .\llr>rnev's Oftice proceeded as it had bd'ore But, on the cases where the patient had too many pl~\11IS (lr pruduct but not much else to shuw sales-the DDAs assigned to review the case would IlltlTVI\..'\V <.111d listen to input to respect the patient's and the DA's position. Some cases were reJl'cted alld others Issued but the case dISp<)Sltion was often generalis and reflected a "sin no more" \oIL"'.' .'\Ii 111' tlw; changed after the pa:";:';~l::;e o/'SB 42Cl, The activists and pro-marijuana folks started to push the envelope Dispensaries began to open for business and physicians started to advertise their <.lv~\J\(Jhillty to Issue recommendatiuns for the j)Ulchase ofmedlGil 111arijuGna. By spring of200S the [lr:~t c\lupfe or-dIspensaries opened liP-hut they were dIscrete. This would soon change By that SLlIl1111er. 7 to 10 dispensaries \Vere open for business. and they were selling marijuana openly In t~ll't. the lncal pulict: depart11lent \vas doing a small buy/walk project and one of Its target dealers said he \Vas (Illt of pot but would go get some from the dispensary to sell to the undercover otTicer (UCL he did It was the proliferation of dispensaries and ancillary crimes that prompted the San Diego ['"lice Chief'(lhe Chiefwa,,, Prop 215 supporter who spalTed with the Fresno DEA in his pliol job Il\t 1'lhlS issue) to autlwnze hiS offlcC'ls to assist DEA. @ 2009 California Police Chiefs Assn. 19 All Rights Reserved 14-68 The Investigation S'"1 Dle:;n DEA and Its local task tl)I-ce (NTF) sou:;ht assistance fro111 the DA's Onice as well as the Li d' '\llllrlley' S Office. Tlv,Ju:;h empathetic about being wining to assist, the DA's Oftice was not "ii'" h,,\\ ll,osccutJons would !'ilre under the provisluns ofSB 420. 111e U.S. Attorney had the easier i'II,I:1 hut \V~\:..; ]lllnC()J111ll1~t<.11 l-\t1-er severalmt:'etings it was decided that law enforcement would work lillll;;lllg undercover operatives (UCs) to buy, so law enforcement could see exactly what WJ.S Inppelllllg ill the dlspensanes. The II1vestl:;ation was initiated In December of 2005, after NTF received numerous citizen cnlllpLllnts regarding the crime and traftic associated with "'medical marijuana dispensaries." The ('11. 01' San Die:;o also sawall increase in crime related to the marijuana dispensaries. By then :lI'I'](),\lIllLltL:ly 10 l11arijuan;] dispensaries had opened and wele operating in San Diego County, and 111\,_.....11~alI\11l:~ (In 15 nfthe;;e cllspensarie:-; 'vI/ere initiiJted. [)urillt: the Illve:-;tig,-ltioll, NTf leorned that all of the business owners were involved Il1 the \ :-'<.1\t3p\ '11atll)1l and distribution of large quantIties of marijuana, mmijuana derivati ves, and marijuana food product:--;. In addition, several o\vners \-vere involved in the cultivation of high grade mariju.1l1a. TIll' husiness O'vVnelS were makll1g significant profits from the sale of these products and not properly reportl11g this Income. 1,IIllkrclwer Task Force Oaicers (TFO's) alld SDPD Detectives were utilized to purchase marijuana Jlh! marijuana [~xxl products h"o!1l these businesses. In Decen1ber of2005, thirteen state search \\,'JiT~111L.:; were executed at buslIltsses und residences of several owners. Two additional follow-up :';I.:::.1:ch warrants and a consent seDrch \Vere ~.'(ecllted the same day. Approximately 977 marijuana 1,1~lil1~ I'rnm seven indoor marijuana grc)\vs. 564.88 kilogD111S of marijuana and marijuana foud prpducts, one gUll, and over $5S,OOO U.S currency were selzed. There were six arrests made during the executIon of these search \varrants fnr v8riolls violations, including outstanding wan-ants, l'();-..~cssion ufl11<J.njuana for sale, possession ofpsilncybin mushrooms, obstructing a police officer. ~lIld weapons vlnlations. Ho\vever. the Q\Vners and clerks were not anested or prosecuted at this 111ll,~'-jllst tlwst: \vho silnwedup with \veapons or product to sell. \ II. ,-'Il 111....: 1~ICllllnst nwnt2rs cnuld cldlm mistake of law as to selling (though not a legitll11ate defense, II ,_"ulei he" juty Ilulllllcatlnn detenoe) the DA's Ot'tice decided not to file cases at that time. It was l1i1!-il::d that the dIspensaries would feel' San Diegn was hostile ground and they would do busll1ess clsu.\'here. l JntlJrtllnatcly this w;}s not the case. Over the next few months seven of the prevlOllsly ["r:;eled llispellsarles opened, as well CiS a slew of others, Clearly prosecutions would be necessary. TI) ~eal' lip f()r the re-opened alld new dispensaries prosecutors reviewed the evidence and sought a ~t.'l"(llld round of Ill' buys vvherein the UC wuuld be buying for themselves and they would bave a sl::(()lld lie present at the time acting as UC I 's caregiver who also would buy. This was designed to :;hl\\.\. tht: dispensary wns not the caregiver. There IS no authority in the law for organizations to act a~ 1')1-1 11l<:\ry caregiver.:;. Careglvels lllLlst be illlhvicluals who care for a marijuana patient. A primary ",,,,,':;iver is ddlned by Proposltll)n 215, as cndlried 111 H&S Code section 11362,5(e), as. "Fol the plirpl';-';CS of thIS section, 'prill1n.ry caregiver' means the individlwl designated by the person exempted und(~r this secrinn who has consistently assumed responsibility for the housing, health, or safety of th~li pel SOil " The goal was to shu\'v that the stores \overe only selling marijuana, and not providing C<-1rl_' Ji)-r the hundreds who bought fr()lll them. (g 21J09 California Police Chiefs Assn. 20 All Rights Reserved 14-69 In '\lldlli"n tD the caregiver cDntralled buys. anather aim was ta put the whole matter in perspective r;)r the mecha and the public by going lOVer the data that was found in the raided dispensary recards, as well as the crime statistics. An analysIs of the December 2005 dispensary records showed a hrc"kdmvn "fthe purported illness and YDuthful nature Dfthe patients. The charts and other PR "'PL'Cts pl"yed out after the second t"ke down 111 July af2006. Tk 1,11,,1 atrack was ta reveal the doctors (the gatekeepers for medical marijuana) for the l'raud they II ,'1\; c<>l1ll1litrillg, UCs I'rom the local PO went in and taped the encounters to show that the pot docs didnol examine the patients and did not render care at all: rather they merely sold a medical MJ recommendation whose dUfntioll depended upon the amount of money paid. In April of 2006, two state and two lederal search warrants were executed at a residence and starage warehoLlse utilized to cultivate mariju8nJ. Approximately 347 marijuana plants, over 21 kilograms of marijuana, and $2,8.55 U.S. cULTency were seized. i 1\1'_' [I} the l"1I"t'SStlre from the publIC. the United States Attorney's Office agreed to prosecute the 11\1 iiLT:" (ll'thL' hLl:~il1esses with l.1rge indoor l11~lI"iJLlana grows and believed to be involved illllloney );.lulltkrillg ~lctlvltles. The District Attorney's Onice agreed to prosecute the owners in the other ill \\.:~t1ga tions. In ,Iune al'2(1)6, a Federal Grand Jury indicted six owners for vialations of Title 21 USe. sectlans ~4(, and 84\ (al( I), Conspiracy to Distribute Marijuana: sections 846 and 841 (a), Conspiracy to Ivlanul"cture Marijuana: and Title I 8 USe. Section 2, Aiding and Abetting, 111 ,Iul} 111'200(;, II state and II lederal seareh warrants were executed at businesses and residences ~l:~.";l)ciatl'cl \\'ilh mC'mbers or'these husinesses. The execution of these sean.;h wanants resulted in the '''TeSl <>1' I <J people, seizure ot' over $1 <JO,OOO 111 U,S, currency and ather assets, flOur handguns, nne rille. 4().:') manjuClniJ plants from seven g:lOWS, and over 329 kilograms ofmarijuJna and marijuana fond products. FClllo\Vlllg the search \varrants. two businesses reopened. An additional search warrant une! consent ~elrch \Vere executed at these respective locations. Approximately 20 kilograms of 111JrijuJna and 32 marijuCll1<.1 pl~11lts Were seized. ,\S" ,csult. "II hut two ol'the IIlclividuals arrested an state charges have pled guilty Several h"ve :lli\.:~\lly heen St'llttllCed and a fe\v are stilI awaiting ::.entencing, All of the individuals indicted I\.:th::r~llly have zllsn pled guilty and (Ire (lwaiting sentencing. .A ["leI' the .July 2006 search warrants a joint pless conference was held with the V,S Attameyalld District Attorney, during which copies ofa cOl11plaint to the medical board, photos arthe foad products \vhich \Vere marketed to chilcll en. and the charts shown below were provided to the media. Dlrl'ctly ~ll'ter these several combined actions. there were no marijuann distribution businesses \!p\;,.T~ltillg III Sail Diego County LCl\v enforcel11ent Clgencies in the San Diego region have been able l(l ,,,;uccl.:.:ssflllly (hS111<1nt1e these businesses and prosecute the owners. As a result, medicCllmarijuana ~H.h (l((\tes have staged a number of protests demanding DEA allow the distribution ofmariju<llla, Tl1L' cl()sure nrthese bUSInesses has reduced crime ill the surrounding areas. @ 2009 California Police Chiefs Assn. 21 All Rights Reserved 14-70 TIK' t:xecutioll of search warrants at these businesses sent a powerful 111essage to other individuals "Ik'rallng marijuana distribution businesses that they are in violation of both federal law and C,Jlitl1mia law. Press Materials: Reported Crime at Marijuana Dispensaries From January 1, 2005 through June 23, 2006 18 16 14 12 10 8 6 4 2 o Battery Burglar.! Attempted Burglary Cnminal Attempted Armed Threal ,~obbery Robbery Information showing the dispensfldes attracted crime: The I11i.HiJllJlla dispensaries were targets of vioknt crimes because of the amount of marijuana, currency. and other contraband stored inside the buslllesses. From January I, 2005 through June 23, 200(). 24 violent crimes were reported at marijuana dispensaries. An analysis of financial records ;-;cl/'cd from the marljuana dispensaries sho\vecl several dispensaries were grossing over $300,000 per 11l<\11l11 flom selling marijuana and marijuanJ food products. The majority of customers purchased lll;ll\jlli.ln~1 wilh ca:::;h. C J"lllle :statIstiCS llUH.iequDtely renect the actualnlll1lber of crinles committed at the marijuana dispel1:sarles. These buslI1esses \vere often victims of robberies and burglaries, but did not report the cnmes to law enforcement 011 account arfear of being arrested for possession of marijuana III excess of Prop 2] 5 guidelines. NTF and the San Diego Police Department (SDPD) receIved numerous cili7t::n complaints regarding every dispensary operating in San Diego County, Bel'Duse tht: complJints \vere received by various individuals, the exact Dumber of complaints was Ill)! I't'corcled. The follnv'/lng were typical complaints received: a high levels oftraftic g011lg to and from the dispensaries a people loitering in the parking lot of the dispensanes . people smoking marijuana in the parking Int of the dispensaries 22 @ 2009 California Police Chiefs Assn. All Rights Reserved 14-71 . vandnlislll near dispensaries . Ihre<llS mode by di<pells<lry employees to employees ot'other businesses citizens worried they may becollle <:1 vIctim of crime because of their proximity to c11~pell;:;aries III ~Iddilioll. the f(,l11owing observatiuns (tl'Olll cItizen activists assistll1g in data gathering) were made ah( lut the manjuana dispensaries: . !denlll'ication was Ilot requested for individuals who looked under age 1 S . Entrance to busllless was not refused because of lack of Identification . Individuals were observed loitenng in the parking lots . Child-oriented businesses and lecreatlOllal nrens were situated nearby . Sr)I1lC bu;:;inesses made no tlttelllpt to verify a submitted physician's recommendtltion Dispensary Patients By Age Ages 66-70.19,1% Ages 61-65, 47, 2% Ages 56-60. 89. J% Ages 71-75, 4, 0% Ag<:s 76~80, 0, 0% Ages 81-85, 0, 0% No Age listed, 118,4% Ages 46-50. 210, Ages 41-45,175, Ages 21-25, 719, 23% Ages 31-35, 302, Ages 26-30, 504, 17% ,'-\n ~lll~lIYSIS of patient records seized during search warrants at several dispensaries show that 52fXl of the customers purchasing marijuana were between the ages of 17 to 30, 630/0ofprim<lry cnregivels purchasing marijuana were between the ages of IS through 30, Only 2.05% of customers suhmltted a physician's recommendation for AIDS, glaucoma, or cancer. \Vh,v these hllsinesses were deemed to he crimillul--not compassionate: Thl.' mcdic<.1I1l1i.nijulllla businesses Welt deemed to be crimin<ll enterprises for the following re.'J.sons: o !'v[any of the business owners hac! histories of drug and violence-related arrests, . The husiness owners \verE:: street-level mOJrijuana dealers who took advantage of Prop, 215 in an attempt to legitimize marijuana sales for profit. . RecunJs, or lack of records, seized during the search warrants showed that all the owners were Ilot properly reporting InCOllle t:"enerated tl'om the snIes of marijuana, NIanyowners were 11l'v'o\ved in money laundering and tax evasion, .. The huslnesses \-vere selling to individuals without serious medical conditions, 11 There are no gUidelines on the amount nfmallJuan<J which can be sold to an individual For @ 2009 California Police Chiefs P.,ssn, 23 All Rights Reserved 14-72 example, anllldlvidual with i:l physicii:ln's recommendation can go to as many marijuana distribution businesses nnd purcbase as Illuch marijuana as he/she wants. . Calitornia law allows an inclividuol to possess 6 mature or 12 immature plants per quolifiecl !Jcrson. However, the San Diego MunIcipal Code states a 'fcaregiver" can only provide care [n.4 people, including themselves: this translates to 24 mature or 48 immature plJnts total MallY oj" these dispensaries are operatIng large marijuana grows with far more plants thnn allowed under law Several of the dispensaries had indoor marijuana grows inside the businesses, with mnture and/or immnture mariJwllla plants over the limits. . Stlte la'vv allows a qualltied patient or primary caregiver to possess no Inore than eight ounces of dried lllariJuona per quali fled patient. However, the San Diego Municipal Code allnws pnlll,:lIY cJregivers to possess no more than two pounds of processed marijuana. Under eithu law. allllost evelY Ill'Hijuona dispensary had over two pounds of processed Ill~Hijll<.l1la during the execution or-the search \.valTants. . Snll'll.' lll<.lrijualla dispens<.lrICS I'"nrce customers to sign fonlls designating the business as their p["llll~llY Ci.lregiver. in an i.ntelllpt to circulllvent the law. , L\I'ERIENCES WITH MARI.JlIANA DiSPENSARIES IN RIVERSIDE COUNTY There were some marijunna dispensaries operating in the County of Riverside until the District ,c\tt!)rney's Office took n very aggressIve stance in closing them. In Riverside, anyone that is not a "qualified patient" or "prilllory coregiver" uncler the Medical Marijuana Program Act who possesses. sells. or transports marijuana is being prosecuted. SL\ enl1 dIspensary closures illustrak the illlpact this position has had on marijuana dispensaries. For IIl~I<lllCe, lhe Pallll Springs Caregivers dispensary (also known as Paln1 Springs Safe Access ('lllkcllve) was searched after H warn.ll1l was issued. All materials inside were seized, and it was closed dn\.\'n and remaIns closed. The CaliforniJ Caregivers Association was located in downtown Rl\ ('rside. Very shortly after it opened. it \VJS also searched pursuant to a warrant and shut dowll. The CanmHelp dispensary was located in Palm Desert. It was searched ancl closed down early in 20n7 The owner and two lllanagers were then prosecuted for marijuana sales and possession of nwrijllall<.l ror the purpose of sale. However. 1.1 judge granted their motion to quash the search """"1","11 allll dismissed the clwl"ges. The District Attorney's Office then appealed to the Fourth ! li..,lrH.:l C()url 01' /~p]leal Pre::;el1tly, the Office is waiting for oral arguments to be scheduled. DI:-;pt.:lls~lrie;-; in the COllnty have also been closed by COUlt order The Healing Nations Collective \\~lS lncatecllll Corona. The owner lied about the nature of the business in his apphcation for a lIcense The City pursued ~1l1c1 obtained lln lIlJunction that required the business to close. The owner "l'l'calcd to the Fourth District Court ,)fAppeal. which ruled agoinst him. (City o/Corollo \". ROlluld NUlllls el 01. Case No. E042772.) .1. I\U=nICAL MARI.JUANA DISPENSARY ISSUES IN CONTR<\ COSTA COUNTY CITI ES AND IN OTHER BA Y AREA COUNTIES 2:,t'\.eral cities In Contra Costa County. California have addressed this issue by either banlllllg dispcnsal ies, enacting l11oratorin agJll1st them. regUlating them, or taking a position that they are simply not a pel111itted land use becouse they violate federal law. Richmond. El Cenito. San Pablo. Hercules. and Concord have adopted permanent ordinances banning the establishment of marijunna dl:->11en:-;:Jries. Antioch, Brentwoocl, Oakley, Pinole, and Pleasant Hill have imposed moratoria agoinst dispensories Clayton. San Romon. and Walnut Creek have not taken any formal oction regardl ng the establIshment of marijuann dispensaries but have indicated that marijuana dlspensnries @ 2009 California Police Chiefs Assn. 24 All Rights Reserved 14-73 llre no! ~l permitted lIse III allY of their Zt111l11g districts as a violation of federal law. Martinez has adnpted n pe1111anent ordinance regulating the establishment of marijuana dispensaries. The ('ount,es of Alameda, Santo ('lam, and San Francisco have enacted permanent ordinances regu l~ll'ing the establishment of marijuana dispensaries. The Counties of SOlano, Napa. and Marin h~l\ t' t'nactecl neither regulations nor bans. A bnef overvIew of the regulations enacted in ilt.'i~hhl)rillg cnunties follows. A, Alameda Coullty Alameda COllllty has a Ilineteen-page regulatory scheme which allows the operation or'three permitted dispensaries in ullincorporated portions of the county, Dispensaries can only be located in commcrcial or illdustrial ZOlles, or their equivalent. and may not be located within LOOO feet of other dispell~aries, schools, parks, playgrounds. drug recovery t~lcilities, or recreation centers. Permit is'llancc is controlled by the Sherill. who IS required to work with the Community Development :\~"':llcy alllllhe I-le~llth Care Services agency tn establIsh operating conditions for each applicant ilrllll. \ll lill~d selectioll. Adverse deciSIons can be appealed to the Sheriffand are ruled upon by the ~dllIL' pancl rl:::Srhlllsihle r\)r settIng nperatlllg conditions. That panel's decision may be appealed tn :hc' B()<trd 1)1" SupervIsors. whnse decision is Illlnl (subject to writ review in the Superior COllrt per (( jl sec. IOi)q.5) Persons violatIng provisions of the ord1l1ance are guilty ofa misdemeanor B. Sallta Clara COllllty III '.:'wcmbcr nl' I ')9S, Sallta Clara County passed all ordinance permItting dispensaries to exist in UllltlCnl"jJl)ratecl portions of the cOLlnty with permits first sought and obtained from the Department of I)uhll"": Health. In spite of this regulatinn. neither the COllnty Counsel nor the District Attorney'~ j.lrll:; \ [nil Supervisllr helieves that Sal1ta CI,.l1".1 COL~l1ty has had eLny marijuana dIspensaries in (111\:'1.'-1 (H)11 (lllc~l~t through 200() Thl 111111' permitted activities are the Oil-site cultivation of medical marijuana and the distribution or' medlcalmarijuana/medicalmarijuana food stuffs, No retail sales of any products are permitted at the dispensary, Smoking. ingestion or consumption is also prohibited on site All doctor recommendatlolls for medical marijuana must be veri tied by the County's PubEc Health r>L'11~1 rtnlel1 t. C. Sail Francisco COllllty 111 [ )1....'cc1l1hcr (1 I. 2(!() I. the Board or Supervisors passed ResolutIOn No 0 l2006, declaring San 1''''lIcisco W he 0 "Sanctuary for Medical Conllabis," City voters passed PropOSItion Sill 2002, dirt'clillg the city to explol'c the possibility or'establishing a medical morijuana cultivatron and distribution pn)gral1l fun by the city itself S,-11l [::r<.\llcisco dispensaries must apply for and receIve a perT11lt frolll the Department of Public 1-1t'~llth. They may only operate as <.1 collective or cooperative, as defined by California Health and S~II'...:ly CllLie section 113(12.7 (see discussion in section 4, under "California Law" above), and may (Jill:: sell or dislribute Il1l.1rijU<.1n<.lIO memht.:rs. CultivatIon, smoking. and making and selling food !11.(Ii.lLlCts may he allu\ved. Permit applications are referred to the Departments of Planll1ng, Building lnspt:clH111, and h)lice. ,Crimina] background checks are required but exemptions could still allow the lJperatlllll or dispensaries hy 1l1clividuals \.vith prior convictions for violent felonies or who have had prior permits suspellded or revoked, Adverse decisions can be appealed to the Director ot' @ 2009 California Police Chiefs Assn. 25 All Rights Reserved 14-74 I'uhl,c Health and the Boord of Appeals. [t is unclear bow many dispensaries are operating in tbe Clt: nt this tIll1e D. Crime Rates in the Vicinity of MariCare SheriFfs data have been compl[ed for "Co[ls for Service" within a half-mile radius of 127 Aspen Drive. Pacheco. However. in research conducted by tbe EI Cerrito Police Depanment and relied LIlli d1 hy Rlver:)lcle COllllty in recently enactIng its ban on dispensaries, it was recognized that not all LTlines relJted to mecllcalmarijuana toke place in or around a dispensary. Some take place at tbe h""le, ul' the owners. employees. or patrons. Therefore. tbese statistics cannot paint a complete 111l.:lLlrc (1f the 1111P,lCt a 1l1nriJuann dispensary has had all crime rates. The statistics show that the overallllumber of calls decreased (3,746 in 2005 versus 3.260 in 2006). However. there have been increases in the numbers of crimes whicb appear to be related to a l:!lI::>iness which is an attraction to a criminal element. Reports of commercial burglaries increased ( 14 In 2005. 24 in 2006), os did reports of residential burglaries (13 in 2005. 16 in 2006) rind llllscelbneolls hurglaries (S in 2005. 21 in 2006). T""'.kr [1"lisIIC Care (TI-Ie ll1arijuam dispcns;uy formerly located on N. Bucbanan Circle in i'C1ch'ce"l w,,, t()rcibly hurglarized on June II. 200e,. $4.800 in cash was stolen. along with lll:'lI'Ijll:'lll~l. hash, marIjuana food products, marijuana pills. marijuana paraphernalia, and marijuana plants. The total loss was estimated to be $16.265. tvIal'iC'are was also burglarized within two weeks of opening il1 Pacheco. On April 4. 2006. a Window was smashed after II :00 p.m. while an employee was inside the business. working [ate to get thll1gs organized. The temale employee called "911" and locked herself in an office while the llllrudcr rans,.lcked the downstairs dispensary and stole more than $200 worth ofmarljuana. Lk'lllt'trin R~\1ll1rez indicated that since they \Vere just moving in, there wasn't mllch inventory. [("['!JIb ,,1' vehicle thehs increased (4 111 2005. 6 iI12006). Disturbance reports increased 111 nearly all c'i1eg"ries (Fights: 5 in 2005. 7 111 2006. Harassment: 4 in 2005,5 in 2006; Juveniles: 4 in 2005. 21 ill :::00(,: Loitering: II ill 2005. 19 in 2006: Verbal: 7 in 2005. 17 in 2006). Littering reports increased fmm I in 2005 to 5 In 2006 Publrc nuisance reports increased ti'om 23 in 2005 to 26 in 2()(1(1. Th.:.'SL' statistiCS retkcr the complaints Jnd concems raised by nearby residents. Residents have rc'p"rrcd tn the District Attorney's OHice. as well as to Supervisor Piepho's office. that when calls cll" Illrl' Ie Il l Ihe Sheri tr s Department. the utTel1ller has oftentimes left the area before la w L'IlI'lllCC1llellt can ,.lITlve. This has led to less reporting. as It appears to local residents to be [J futile Dl'l ,-11le! residents hnve been adVised that law enforcement is understaffed and cannot always timely ,.esp"nd to all calls for service. As a result. Pacheco developed a very active. visible Neighborhood \rV,-ltch program. The program became much more active 1n 2006, according to Doug Stewart. Volunteers obtnll1ecl radios and began frequently receiving calls directly from local businesses nnd residents who contacted them instead of law enforcement. It is therefore significant that there has ~tjl] heen an increase illl11any types orcalls for law enforcement service, although the overall Ilumber ol"calls has decleased. \ Jt!:\..'I-l'l'lllpl:'\lnL~ from residents included nOise, odors, smoking/consuming marijuana in the area, iillc'r",,, '"1el trash frum the dispellsa,.y. loitering near a school bus stop and in the nearby church p<.lrking lot. observations that the pnm:.Jry patrons of ivlariCare appear to be individuals under age 25, @ 2009 California Police Chiefs Assn. 26 All Rights Reserved 14-75 elnd Increased tmftic. Residents observed thelt the busiest time for MariCare appeared to be frolll .:1:1111 I' 111. to 6:00 1'.111. On a tvpical Friday. 66 cars were observed entering MariCare's facility: 49 (11' lhl'sl' were observed to contain additional passengers. The slowest time appeared to be from I"Oi) p Ill. tn J:OO p Ill. On a typical Saturd.1Y. 44 cars were cOLlnted dUrIng this time, and 29 of these \\'l'I":':: (Jhserved III have i.ldditinna] pnssengers. MariCare hns cl::l\llled to serve 4,000 "'patients." E. Impelct of Proposed Ordinance on MedDelivery Dispensary, EI Sobrante It" the position or Contra Costa County District Attorney Robert J. Kochly that a proposed ordinance should terlllinate operation of the dispensalY in EI Sobrante because the land use of that hl.ls11lt:ss would be Inconsistent with both state and federc:tllaw. However, the Community Dt\'elopll1ent Department apparently believes that rvredDellvery can rem<llll as a "legal. 11011- cnll!llrllling Lise," F. Banning Versus Regulating tVlnrijunna Dispensaries in Unincorporated Contra Costa COllnt)' It is ,"nplv bad public poliCY to allow the prolireration of any type of business whICh is illegal and ~"llh.lecl to bell1g raided by federal and/or state authorities. In fact, eight locations associated \vith the New R'=llledies dispensary in San Francisco and Alameda Counties were raided in October ot'2006. ;\IH.\ eleven Southern California marijuana clinics were raided by federal age'nts on Jal111~l\Y 1 S, 2007. Thc- Llls Angcle, head ul.'the lederal Drug Enfolcement Administration told CBS News aileI' the .l;\IW;lry I"Clld::: that "ToJay's enforcement uperatlons show that these establishments are nothing more 111;11\ drug-tl;lfficking organizations bringing crimina] activities to our neighborhoods and drugs near lIur chrldren '"ld schools." A Lafayette, Callfoll1la resident who owned a business that produced mclriJuJl1[l-lacecl foods and drinks for marijUJIKI clubs was sentenced in federal court to five years :lIllIIO months behind bars as well as a 5250.000 fine. Several of his employees were also convicted III lint case. /,\:.; llisL'lIssed ,.lhnve, there i:s absnllltcly nn exception to the federal prohibition against marijuana ullliv<:lfinn. pn;:;session. transportation, Lise, and distribution. Neither California's voters nor its I.t'g I ~Ia tu re ;lllllwrlzed the t;X lstence or Oper~l tion of marijuana dispensing businesses when gIven the PPP()I tunity to do so. These enterpnses cannot fit themselves into the few, narrow exceptions that \Vue l.~leated hy the CompassIonate Use Act and l'vIec!Jcal NTarijuana Program Act. Further, the presence of mariJuana dispensing businesses contributes substantially to the existence of a secondary market for illegal. street-level distribution of marijuana. This fact was even recognized hy lhe United States Supreme Court: "The exemption for cultivation by patIents and caregivers can <lIllv increase the supply ofmanjuana in the Calirornia market. The likelihood that all such j1\"1ldllctlnn \v111 promptly terminate \vhen patients recover or will precisely match the patients' Illl.'d ica 1 needs du nng thel r conva lesctnce seems remote: whereas the danger tha t excesses will ;i,\lisly snllle ()fthe admitkdly enc)rmous demand tl)r recreational Llse seems obviolls." (Gonzales l' Nt/lell. sllpro. 125 S.CL at p. 2214.) As nutlmed below, clear evidence has emerged ofslIch a secondary market in Contra Costa County. . In September of 21J04. police responded 'a reports at' two mell pointing a gun at cars In the parking lot at Monte Vista High School dunng an evening rootball game/dance. Two l')-year-olcl Danville reSidents were locateel in the parking lot (which was rtill of vehicles and [ledestllans) ancl in [lossession of a silver Airsoft pellet pistol designed to replicate a @ 2009 California Police Chiefs Assn. 27 All Rights Reserved 14-76 real Walther semi-automatlc handgun. Marijuana, hash, and hash oil with typical dIspensary packaging and labeling were also located in the car, along with a gallon bottle of tequila (1/4 nlll), a bong with burned residue, and rolling papers. The young men admitted to having consumed an unknown amount of tequila at the park next ro the school and that they both pointed the gun at passing cars "as ajoke." They tired seH'ral BBs at a wooden ['enee ln the park when there were people in the area. The "\\Iler ul' the vehicle admitted that the manjuana was his and that he was not a medicinal IlwrtJuana user. He \vas able to buy marijuana from his friend "Brandon," who llsed a I'roposition 215 card tn purchase ti'Olll a cannabis club in Hayward, . [n February of 2006, Concord police ot'llcers responded to a report ofa possible drug sale in progress. They arrested a high school senior for two olltstanding warrants as he came tn buy marijuana from the cannabis club located on Contra Costa Boulevard. The young man eXpla1l1ed that he had a cannabis club card that allowed him to purchase marijuana, alld "d 111 itted that he planned tn re-sell some nt'the marijuana to friends, He also admitted to possession uf ne;}rly 7 );rams of cocaine 'vVhH::h was recovered. A 21-year-old 11l~ln was also arrested (111 all outstanding walTallt. In his car was 8. marijuana grinder, a haggie of11larijuana. rolling papers. cigars. and a "blunt" (hollowed Ollt cigar tilled with mC]]']juana li)r smokll1g) with one end bUl11ed. The 21-year-old admitted that he did not have a physician's recol11mendation for marijuana. . Also III February 01' 2006, a 17-year-old Monte Vista High School se11l0r was charged \Vlth felony furlllshlllg of marijuana to a child, after giving a 4-year-old boy a marijuana- laced cookie. The furnishing occurred on campus, during a child development class. . In March of 2006, police and tire responded to an explosion at a San Ramon townhouse and found three YOllng men engaged in cultivating and manufacturing "honey oil" for local pot clubs, Manjuana was also being sold from the residence, Honey oil is a concentrated [-;:lr111 of cannabis chemiclily extrJcted from ground up marijuana with extremely volatile hutane and a special "honey oil" extractor tube. The butane extraction operation exploded with such force that it ble" the garage door partially off its hinges. Spnnklers in the residellce kept the tire ['rom spreading to the other homes in the densely packed residential neigl1bc)rhood, At least one of the men was employed by Ken Estes, owner ,)1' tbe Dragonlly Holistic Solutions P,)t clubs in Richmond, San Francisco, and Lake County, The)' were making the "honey OJI" WIth marijuana and butane that they brought up r'rom one o['Estes' San Diego pot clubs after it was shut down by federal agents, . Also in March of2006, a 10-year-old EI Cerrito High School student was arrested alter selling pot cookies to fellow students on campus, many ofwhol11 became ill. At least !{)ur required hospitalization. The investigation revealed that the cookies were made with a bulter obtained outside a marijuana dispensary (a secondary sale). Between March of 20114 and ivlay of2006, the El Cerrito Police Department conducted seven investigations al the high school and junior I1I);h school, resulting in the arrest of eight juveniles for selling or p,]ssessing \vith intent to sellmariJuan3 on or around the school campuses. . In June of 2006, Moraga pollce ofticers made a traffic stop for suspected dnving under the innuence of alcohol. The car was seen drifting over the double yellow line separating nmth and southbound traftic lanes and driving in the bike lane, The 20-year-old driver denied having consumed .11lY alcohol, as he was the "designated driver." 'VVhen asked about IllS bloodshot, watery, and droopy eyes, the college junior explained tbat he had @ 2009 California Police Chiefs Assn. 28 All Rights Reserved 14-77 slllllkedlllalljuana earlier (contirmed by blood tests). The young man had difticulty pCI formIng field sobriety tests. slurred his speech, and was ultimately arrested for drivlllg under the intluence. He was in possession of a falsi tied California Driver's License, marijuana, hash. a marijuana pIpe. a scale. and $12,288. The marijuana was in packaging ti'om the Compassionate Collective of Alameda County, a Hayward dIspensary. He explallled that he buys the marijuana at "Pot Clubs," sells some, and keeps the rest. He only sells to close fnends. About 53.000 to 54,000 of the cash was from playing high- stakes poker, but the rest W,15 earned selling marijuana while a GeshL1lul1 at Arizol1n Strite UnIversity The IS-year-old passenger had hLllfan ounce of marijuana in her purse (:me! pnlduced a doctor's recolllmendation to a marijuana club in Oakland, the authenticity of Whll.'h could not be confirmed Another significant COllcem is the proliferation of marijuana usage at community schools. fn February of 2007, the Healthy Kids Survey for Alameda and Contra Costa Counties found that youthful substance abuse is 1110re common III the East Bay's more affluent areas. These areas had hi~her rates of high schoo] juniors who admitted having been high t'rom drugs. The regional ll1<.lll<.lger of the study found that the aftluent i:lreas had higher alcohol and marijuana use rates. USA TullC/\' rcct'lltly reported that the percentage of l2lh Grade students who said they had used marijuana Iw.~ 111\.:rl'~lSl'd :::ince 2002 (from J3 61~,;) tu J(J.2'i';) 111 2005), arld that marUlWn<.1 'vvas the most-used 1Ilil.:il drug i.llllOIll; that age group in 20()(). KSDK News Channel 5 reported that high schoo! students ~ln~' Jilldillc ensy nccess to medica! manjuann cards nne! presenting them to school authorities as a kgilimiJte excuse for gettlllg high. School Resource Officers for Monte Vista and San Ramun Valley High Schools in Danville have reported tinding marijuana in prescription bottles and other packaging t'rom Alameda County dispensaries Marijuana has also beenllllked to psychotic '11 1111 A k t' t. db' .. . ] llc;:;ses. rlS - actor was olin to e startIng marIjuana use 111 adolescence. 1':-1)1' ~lll nfthe above reasons. it is <ld\'ocatec! hy District Attorney Kochly th3t a ban on1nnd use;:; \\."11Ich vlol.lte strite or federalla\v is the most appropriate solution for the County of Contra Costa. ~. SANTA BARBARA COUNTY !"ccurding to Santa Barbara County Deputy District Attorney Brian Cota, ten marijuana dispensaries are currently operating Within Santa Barbara County. The mayor of the City of Santa Barbara, who IS an outspoken l11edlcalmarijuana supporter, has stated that the police must place marijuana behind every other police primity This has made It difficuit for the local District Attorney's Office. Not nwny marijuana cases come to it for tiling. The District Attorney's Office would like more regulations placed on the dispensaries. !-Iowever, the maJoriry of Santa Barbara County political It'<Iders ~lllcl re;.;idellls Jre very liberal ;]]1<..1 cln nnt want anyone to be denied access to medic:d Ill<.lnJU~]Il<l if they 5<:IY they need It. Partly as a result. no dIspensaries have been prosecuted to date. 5. SONUMA COUNTY Stephan R. Passalocqua, Distnct Attorney tur the County of Sonoma, has recently reported the foll()\V111g in I.'ClllllariOll relnted to dIstribution of medlcalmarijuana in Sonoma County In 1997, the SnllOlll<l COUllty La\\' Enforcement ChIefs Associatioll enacted the followll1g medical marijuana !:;Uilklllll:':S: ':1 LJu~di!'ied jJZltlcnt is pernlltted t(l pnssess three pounds of marijuana and grow 99 pbnts III :'1 I ()(J-sl]u<.lre-fol1t callopy A qualij-ied caregiver could possess or grow the above-mentioned ~llll\)Llllts r\)! each qU<llil'iecl p<ltiellt. These guidelines were enacted after Propositioll 215 was o\'t'l"whelmingly passed by the vOlers ofCnlif"nrnia, and after two separate unsuccessful prnseclIt'lnns III Sonoma Coullty. Two Sonoma COllnty jUries returned '.not guilty" verdicts for three defendants @ 2009 California Police Chiefs Assn. 29 All Rights Reserved 14-78 \Vh" possessed substantially large quantities of marijuana (60 plants in one case and over 900 plants in Ihe other) where they asserted a medical marijuana defense. These verdicts, and the attendant puhlicity. denH'nstrated that the community standards are vastly different in Sonoma County cnlllpJred to other jurisdictions. On November 6, 2006, and authorized by Senate Bill 420, the Sonoma County Board of Supervisors specifically enacted regulations that "llow a qualified person holding a valid identification card to possess up to three pounds of dried cannabis a year and cultivate 30 plants per qualilied patient. No 11ldlVldual from any law enforcement agency in Sonoma County appeared at the heanng, nor did any n.:)1rt.'sent(jtlve publicly oppose this resolution. Wil h r,,'spect to the Pell!,le ". Sosl'"1I .lellkills case, the defendant provided verified medical I'Cl"'lll11end,llions I'or live qualified p,ltients prror to triaL At the time of anest, Jenkins said that he hCld a medlcalmarijuClna card and was a care provider for multiple people, but was unable to provide specilic documentation. Mr. Jenkins had approximately 10 pounds ofdlied marijuana and was gr"wing 14 plants, which number of plants is consistent witb the 2006 Sonoma County Board of Supervisors' resolution. ,\t" I'rcliminary hearing held In January 01'21J07, the defense called live witnesses who were pr\lfkred ;'1;;; .knkin's' "pntients" ::llld \vhn came to court with medical recommendations. Jenkins ,11:..;;> tcsliJiccl tll,-!! he \v;.lS thell" caregiver. /-\fter the preliminary hearing, the assigned prosecutor L'[llldul'lt:d a thorough review nfthe facts ane! the law, and concluded that a Sonoma County jury \\'(\ulcl nc\t return a "guilty" verdict ill this crise. Hence. no felony infol111ation was filed. \Vith rcsl'ectto the l-etum ofpruperty issue, the prosecuting deputy district attomey never agreed to release the marijuana despite dismissing the case Other trinl dales are pending in cases \vhere medlcal marijuana defenses are being alleged. District A Itnmcv Passalacqua has noted that. given the overwhelming passage of proposition 215, coupled \\Itb ,\I Icclsl une United States Suprcme Comt deciSion that has not struck it down to date, these Ii.l\..'l{)r~ j11e;;L..:llt current Ch~llkllges for l:.l\V enl-()rcelllent, but that he and other prosecutors will 1..'(1I11111Ue to vig()roLlsly plosecLlte drug dealers within the boundaries of the !::tw. h, ORANGE COUNTY Th~rt: are 15 marijuana dispensaries in Orange County, and several delivery services. lVtanyof the delivery services operate out of the City of Long Beach in Los Angeles County. Orange ('()llnty served n search warrallt on one dispensary. and closed it down. A decision is bel1lg made \\:ht'lhcr (lr \lPl ttl file criminal charges in that case. It IS possible that the United States Attnmey '\ ill lile Oil that dlspel1sary Since It is a br,1I1ch of a dispensary that the federal authorities raided 111 S<.lll Dlegn Cnullty The Orange County Board of Supervisors has ordered a study by the county's Health Care Department on how to cumply with the Medical Marijuana Program Act. The District Attorney's Office's pOSition is that any actiVity under the Medical Marijuana Program Act beyond the mere issuance of identi fication cards violates federal!aw. The District Attorney's Olliee has melde it clear to County Counsel that ifany medical marijuana provider does not meet ~l strict definition of "primary caregiver" that perSOll \vill be prosecuted. Ie) 2009 California Police Chiefs Assn 30 All Rights Reserved 14-79 1'[:'d)I:"G LEGAL QliESTIOi\'S L,I\V enf('H-Cement agencies throughoLlt the state. as well as their legisbtive bodies, have been sllugglin); with how to leconcile the Compassionate Use Act ("CUA"), Cal. Health & Satiety C !)(Ie sees. 11362.5, et seq.. with the ledelal Controlled Substances Act ("CSA"), 21 U.s.C see Sf) I. et seq., for some time. Pertll1ent questions follow. ()LiESTION I. " it po,sihle for a storefront marijuana dispensary to be legally operated untler the Compassionate lise Act of 1996 (Health & Saf. Code see. J 1362.5) and the iVledical Marijuana Program Act (Health & Saf. Code secs. 1J362.7- II J()1.83'.' .,\O\SWER l. Storefront marijuana dispensaries may be legally operated under the CUA anti thc Medical Marijuana Program Act ("MMPA"), Cal. Health & Safer\' Codl'set's. I 1.362.7-1 13ill.RJ. as long as they are "cooperatives" under the iVLVII'A. Ai\A LYSIS The question poseel does not specify what services or products are availahle at a "storefront" llIDI"iJUi.lll<1 di:.;;pensary The C]uestlun <llso does not specify the business structure ora "dispensary" ;-\ I'dlspensnry" IS often cOllllllonly used nowadays as a generic term for LI tacility th~l( distrihutes medlClllm::lrijuJna. The krill "di:-;pellsory" is als() llsed specltically to refer to lllarijuana facilities that are operated 11\11rC lIke a retlil estahlishment. that are open to the public and often "sell II medicalmariju<Jn<J to liualitied patients or c::lregivers. By use ot'the term ITstore front dispensary," the question may be presuming that this type of bcility IS being operated. For purposes of this analysis. we will aSSUllle that a IIdispensary" IS a generic term that does not contemplate any particular business :::;Iructult: I Bclsed Ull that assumption, a IIdlspensari' might provide Olassistance to <1 qualified patient or i.I pelsoll with an iclentlticntion carll. or his or her deSignated primary caregIver. in ~1t.1l1lillisterin~ medicalmariju<1n<1 to the qualified patient or person or acquiring the skills nl.:Ct':-:.s~H:; tlJ cultivate or administer I1HHIJLlana for medical purposes to the qualified patient or 1"'I',,,n" <tnet he within the permissible limits o['the CUA and the MMPA (Cal. Health & Safety Cl)de Ciec. 113(,2.765 (b)(3).) I As the teml "dispensary" is comlllonly used and understood, marijuana ciIspensarles would 1101 be permitted undel' the CUA 01' the MMPA, since they "sell" mee!icalmarijuana ane! are 11\1t opel ated ~\S true "cuopcratives." (~, 2009 California Police Chiefs Assn. 31 All Rights Reserved 14-80 The CUA permits a "patient'! or a '!patient's primary caregiverll to possess or cultivate marijuana li,r persul10lmedical purposes with the recommendation ofa physician. (Ca!. Health & Safety Code sec 11362.5 (d).) Similarly. the MMPA provides that "patients" or designated "primary c're).;ivers'! \vhn have voluntarily obtained a valid medical marijuana identification card shall not h\.: :-;ubject to arrest for possession. transportation. delivery, or cultivation ofmedicallllarijuunu in specllied quantities. (Cal Health & Salety Code sec. 11362.71 (d) & (e).) A "storefront dispensary" would not Ilt within either of these categories. However. the MMPA also provides that "[q]ualilled patients, persons with valid identification ell'ds. and the designated primary caregivers of qualitied patients and persons with identiticotion l':ll-ds. who ussociute within the State of California in order collectively or cooperatively to L'ulli\'ate llwriJuana for medical purposes, shall not solely on the basis of that fact be subject to ....:!:Ilt' Crlllll11~ll s~ll1cti()lls undcr section 11357 [possession]. llJ58 [planting. harvesting or 1"'""e:;sil1g1. II J59 [possessIOn I,,,, sale]. II J60 [unlawtld transportation. importation. sale or gii'IJ. II Jill, [opening or maintaining place f'OJ' trafticking in controlled substances]. 11366.5 [pr"vidil1g place for manuf;1cture or distribution of controlled substance; Fortifying building to suppress law enforcement entry]. or 11570 [Buildings or places deemed nuisances subject to abatcmcnt]." (Co!. Health & Safety Code sec. 11362.775.) (Emphasis added).) SlllCL; Illedicd marijuana cooperatives are pe1l11itted pursuant to the MMPA, a Itstorefront dlsjlensary" that would qualify as a cooperative would be permissible under the MMPA. (Cal. Health & Salety Code sec. 113(,2.775. See also Peoj,!e \' Ur;:;ceclllu (2005) 1J2 Cal. ApI' 4th 7-+ 7 (fincl1ng criminal defendant was entItled to present defense relating to operation of medical marijuana cooperative).) In grantIng a re-tnaL the appellate court in Ur:iceallll found that the dctendant could present evidence which might entitle him to a defense under the MMPA as to the operatIon of a mt:cl1calmarijl1ana cooperative, including the fact that the "cooperative" \ I..:rified phYSIcian recommendations and identities of individuals seeking medicalmarijuann and indivlclu,lls obtaining medical marijuana paid membership fees. reimbursed defendant for his 1I1S[S III cultiviJtl1lg the llledicalmarlJuann hy way of donations, and volunteered at the "cllllpcratrvc." (1<1 at p. 785 ) \\'hethel' or l1\ll "sales" are permitted under Ur:/(.'I!([llif and the MTvrPA IS unclear The (:":;I."I.:UIIII Clll11"t dId note that the incorporation ofsectlOn 11359, relating to marijuo.na "sales," ill ;;ecl1(lll 113()2.775. allowing the operation of cooperatives, IIcontemplates the formatIon ancl operation of l11edicinalmarijuana cooperntives that would receive reimbursement for manjuana :lIld the services provided in conjunction vvith the provision afthat marijuana." Whether "I'elmburselllent" may be in the f0I111 only of donations, as were the facts presented in Urziceufllf, ClI' whether "purchases!' could be made for medical marijuana, it does seem clear that a medIcal Ill;'lrlJU~llla IIco')peratlve" Illay not make a "plOfit.1I but may be restricted to being reimbursed for i.\ctu;.tl enst..; In prOVIding the m,uijuCln;'l to Its members and, if there are any !'profi.ts," these may 11;'1\ e I(l bl' relllvested ill the "coopl'rarive" ur shared by its members in order for a dispensary to @ 2009 California Police Chiels Assn. 32 All Rights Reserved 14-81 he truly considered to be operating as a IIcooperative.1P2 ffrhese requirements are satisfied as to a ",I"refront" di'pellS'"Y. then it will be permissible under the MMPA. Otherwise, it will be a \ iolalion or' both the CUA and the MMPA. (JI;E~TI()i' , rrthe governing body ofa city. county, or city and county approves an ordinance Guthl)rlzing and regulating marijuana dispensaries to implement the Compassionate Use f\ct of 1996 and the ivIedieal Mnrijwm8 Program Act, Gill an individual board or council member be rounel to be actinf! dlef!ally and be subject to fedeml criminal charges, including aiding and abetting, or state criminal charges? .-\i\'~\VER , ! r ~l city. county. or eity i.lIld county ;:lllthorlzes and regulates marijuana dISpensaries. ,ndivielualmembers of the lef!islative boelles may be helel crimlllally liuhle under state or fedenlllaw.; ANALYSIS A. Fedeml LUll' Ccnniilly. Icf!islil(<,rs of reelerill, Slillc. olllll(lcallef!islatlve bodies are absolutely immunc rrllm liaL'ility tl'r legislali\e acts. (U.S. Const.. art. L sec. 6 (Speech and I'Jc!1c'le Clause, applicable t(lmembels ofCollf!ress): Fed. Rules Evid.. Rule 501 (l.'vldcntlal'Y privilege agninst ndmisslnn nflegislative acts), Tellne}/ v, Bralldhove (1951) 341 U.S. 367 (legislative immunity applicable to state legislators): Bogan 1. SCOII-Hurn.1 (1998) 523 U.S. 44 (lef!islatlve iml11unity applicable to local kf!islators).) However. vvhile federallef!islators are absolutely immune from hath Cl'll1llll<l1 and civil liability for purely legislative acts, local legislators are Of/<v 1I11111L1I1e ['1'I1m civ/fliability under lederallaw (UII/led Siates v. Gillock (1980) 4-15 U.S. 3(11).) Where the {ll11ted States Supreme Court has held that federal regulation of marijuana by way uf lhe CS.A. including any "medic::ll" Lise of manjuana, IS within Congressl Commerce (buse power. feelerallaw swnds as a bar to local action in direct violation of the CSA. (GOIcales v. Rlllcf, (2005) 545 U.S I.) In r~1Ct, the CSA itselfpmvides that [ederal regulations do not .2 .1..\ l'cooper8.tive" is defined as follows: An enterprise or organization that is owned or managed ]nintlv bv those who lIse its fncilities or services, THE Ai'vlERICAN HERITAGE DICTIONAR Y OF THE ' ,. I:.~I d.ISH LANGU.-\GE. by 1-{ouf!loton i'vliftlIn Company (4th Ed. 2000). \ Indeed. the sal1le conclusion would seem to result from the adoption by state legislatOls of the 1\1i'vII'A ilseli'. In ilulhollzing the issuance or'medlcal marijuana identification cards. (Cal. Health S: Sar'ety Cnele sees. IIJ62.71,etseq.) @ 2009 California Police Chiefs Assn. 33 All Righls Reserved 14-82 l'\elusivelv occupy the tield 01' dru" re"ul"tion "unless there is a positive contlict between th"t provision of this title [the eSA] "nd that stnte Inw so that the two cnnnot consistently stand t""ether." (21 USe. see. 903,) 8ased on the ahove provisions, then, le"is]ative action by local legislators could subject the Indlvldualle",sl"tors to federal criminnlll"bdity, Most likely, the only violation of the eSA that \"llultl occur as a result ohm ordinance approved by local legislators authorizing and regulating !l"'-'lll,:allll'-lrijuana would be aiding and ahettll1g a violation of the CSA. The elements 01' the oilense 01' aidll1" "nd abettin" a criminal offense are: (I) specitic intent to IClcil,tate commission ofa crime hy Clnolher: (2) guilty knowledge on the part of the accused, (3) th'll"n oflense was heing committed by someone: and (4) that the accused assisted or I'anielpaled inlhe commission of"nollense. (Ulllled Sillies v Raper (1982) 676 F,2d 841: billed Stules I', SILllell (1978) 581 F.2d 878,) I 'rimlll,i1 ailhn" and abetting liability, under 18 use section 2, requires proof that the \..klt.ond:ltl\;'; in SO!1le \v<J>! assl1ciated themselves with the illegal venture; that they participated in lhL' \ t:lllurt: as :-;omething th<lt they \I./ished to.bring about and that they sought by their actions to Iliake the venture succeed, (Cellini! BUllk. /VA. v Firsl !lll~rsWle Ballk, NA, (1994) 511 U.S, 11.4 ) Mere l'urI1ishl11g of company to n person engaged ill a crime does not render a companion nIl aider or abettor. (Ullil~d Slales \' Curglli!o (2d eir 1962) 310 F.2d 249,) In order for a defendant to be an alder and abettor he must know that the activity condemned by law is actually nccurrlllg and must intend to help the perpetrator. (Ulliled SWles v, lv!cDaniel (9th eir, 1976) 5~5 F,2d 642.) To be guilty of aiding nnd abetting, the defendant must willfully seek, by some aetlC'n of his own, to make a criminal venture succeed, (Ulliled Slales v Ehrenberg iE,D, Pa, 1',)7313541' Supp 460cerl.dcllled (1'J74)94S,Ct, 1612.) "i he lIl1est]()ll, as ]J()se(!. lllay presume that the local legislative body has acted in a manner that ,,[Iirmatlvely supports marijuana dispensaries. As phrased by Senator Kuehl, the question to be a"swered by the Attorney General's Olliee assumes that a local legislative body has adopted an "rdinance that "authOrizes" medical marijuana tl1cilities, What if a local public entrty adopts an ordlllunce that expliCitly I11dicates that it cloes !lol authorize, legalize, or penl1it any dispensary thai IS In Violation of federall"w regarding controlled substances') [I' the local pubhc entity grallts a permIt, regulates, or imposes locJtional requIrements on marijuana dispensaries With the clIlnnunced understanding that it dnes not thereby allow any illegal activity and that dispensaries :1:.(' reqUired to comply with nil applicable laws, includll1g federal laws, then the public entity .,I,,'ulcl he elltitled to expect that allla"s will be obeyed, Il \\."oulcl seem that a public entity IS not intentionally acting to encourage or aId acts in violation () I' the CSA merely because it has adnpted an ordinance which regulates dispensaries; even the i"suallce of a "permit," If it ,s expressly 1101 allowing violations of federal law, cannot necessarily support a charge or conviction of aiding and abettmg violation of the CSA. A public entity shuuld be entitled to presume that dispensaries will obey all applicable laws and that lawful husiness \-vill be conducted at dispensaries. For instance, dlspensanes could very welll/ol engage in actunlmedical marijuana distribution, but instead engage in education and awareness activitIes ~I:~ t!) the medical effects of1l1anju<lna, the sale orother, legal products that aid in the suffering of @ 2009 California Police Chiefs Assn 34 All Rights Reserved 14-83 ~lilillg patient:..;: or e'v'en o.ctivitles directed ZIt effecting a change in the federal laws relating to r,;gubtinn nfmarijui.lna as a Schedule I substance llnderthe CSA, lhese iJre examples of legltin1:lte business activities, and First Amendment protected uctivltles at ('helL 111 \.vhich c1ispens.1ries could engage relating to medical marijuan::l, but not apparently in "I,)I"tlon ot'the CSA. Public entities should be entitled to presume that legitimate activities can ;'lllt"! \.vill he engaged in by dlspensanes that are permitted and/or regulated by local regulations. [n tad. It seems counterintuitive that local public entities within the state should be expected to h" the watchdogs ot' federal law; in the area of controlled substances, at least, local public entities 1I., Ilot hl1Vt: an J ftirl1lJtive obligJtiotl to discern whether businesses are violating federal law . '[ he C alill,rniCl Attorney General's Otliee will note that the State Board of Equalization ("BOE") h,l." e11ready done precisely \vhat has been suggested in the preced1l1g paragraph. In a special n"tlce issued by the BOE thiS year. it has indicated that sellers of medical marijuana must obtain "seller's permit. (See http./iwww.bne.ca.gov/news/pdUmedseller2007.pd[(Special Notice. ImportClnt [ntormation tor Sellers of Medical Marijuana).) As the Special Notice explicitly tndtcJ.tes to medica! marijualla t:lcilitles, "[h]J.ving- a seller's pellllit dues not meJn you have ~lllth{'l"lty to make unlawful sales. The permit only provides a way to remlt any sales and use t,,\C' due. The pCl"1l11t states. 'NOTICE TO PERMITTEE: You are required to obey all tedeml ~!:\(\ ~\,ltc laws that reglllak or contw] YUllr business. This penllit rioes not allow yuu to do I'ihen\' I:..;e 'i"ill:.' i.lbo\.e beIng ~..;ailL hO\'v'ever, there is no guarantee th8t criminal charges would not actually be hr()ught by the feder81 govetlllllent 01" that persons so charged could not be successfully )ll"Osecuted. It does seem that arguments contrary to the above conclusions could be persuasive in cOllvictmg locallegis1<J.tors. By pellllittint; and/or regu1<J.ting muruuana jispensories by local lllc\inance. :301lle legitimacy and credibilIty lllay be granted by govenll1lentallssuance Ofperllllts Ilr llllth0rlZIllg and allOWIng dIspensaries to exist or locate within ajurisdiction.':+ . \ II (d' tlll:-; dISCu~"sIon, then, simply clel1l()llstr~ltes tho.t indiviuuJl board or cOllncilmembers call. IIKk:-t:d, be rtHlnd CrimInally lioble under federalla\.v for the adoption of an ordinance authoriZIng dlld rl:.'gulCllin~ manjulln<.1 dispensaries th;'lt promote the LIse ofmanjuJn.::r as medrcine. The dduclllikelihc)od of prosecution, 8nd Its p,)tential success, may depend on the particular bcts of tile regulation that is adopted. , Of cumse, the ljllestlcm arISes as to h"w tCH any slIch liability be taken. Where can the line be dl'd\.'vn bet\\een any permit or regulation adopted specifically with respect to marUlIanZl lil",pt:'n~arles and other penlllts or llPPlovals routinely. and often 1lI1Ill.,>'teriullv, granted by local 1"lhlii...:' elllilil..:s, such as building pem1it"i 1)1" bIIS111t::SS licenses, which are discLlssed InFu') lflucal !.IuhllC elltitles are held responsible t(Jr adopting an ordinance authoriZIng and/or regulatlllg lllarlJlla1l'-l ll1spen,;:;arie~, cannot local public ~ntities also be subject to liabiltty for providll1g gClleri.ll public services for the illegal distribution of "medical" marijuana') Could a local public elll!ty that knew a dispensCiry WJS distributl11g "medical" marijuana in conlpliance WIth state la\v he Criminally liable jf It provided electricity, water. and trash services to that dispensJ1i/ Ho\v C:111 sLlch action:3 really be distinguished from the adoption of an ordinance that authorizes and/or I L'gulalts lllZl rijllana cllspensanes'.l Ie.. 20ng California Police Chiefs Assn. 35 All Rights Reserved 14-84 B ,)'rUff..: LUH-' ,Sllllilarly. under Call [(lrnia la,', aside I'rom the pel'son who directly commits a cril11lll;}1 offellse, no other person is guilty as a principal unless he aids and ,d'elo. (P~ol'l~ \. Do/~ (IS98) 122 Cal. 48Ci, Peop/~ \. Steill (1942) 55 CaI. ApI'. 2d -1-17 ') ^ persoll \\ho 1I11locelltly aids in the commission of the crime cannot be found S"ilty (Pco!,le \' Fredoll! I 1910j 12 Cal. ApI'. CiS5.) Tu authorlze a conviction as an aider and abettor of CrIme, it must be shown not only lhat the person so charged aided and assisted in the comn1ission of the offense. but also that he abetted the act- that is, that he criminally or with ~lll1ry knowledge and intent aided the actual peqJetrator in the comn1isslon of the el," IPco!,lc \. Tc'/"IIIUII (1935) 4 Cal. App 2d 345.) To "abet" another in "'lI1l1ll15SH)1l of a crime Implies J conscilJllsness of guilt in instigating, encouraging, 1'1'I)n11)till~, \)r aiding the coml11lSSlon of the offense. (Pcople v Best (1941) 43 Cal. App 2d 11111 j "Abet" implies knowled"c "fthe wron"ful purpose of the perpetrator of the (ll11K (People v Sh,'ill. supra) Tn be guilty of an offense cOlllmitted by another person, the accused must not only aid slll'h perpetrator by "sslstins or supplementing his efforts, but must, with knowledge of the wrnngtlli plllpose ofthe perpetrator, abet by inciting or encouraging him. (People \'. Lc Crulll (I 'J4(1) 71) ,,,I. API' 2d 14S, [72; P~()pl(' v. Carlsoll (1960) 177 CaI. ApI'. 2d 2111 ) The <,;11\lCILlSinllUJ1Uer state law aiding and abetting would be similar to the analysis above under kderallaw. Similar to federal law immunities available to local legislators, discussed above, slate lc.l\v Illlmunities provide some protectIOn for local legislators. Local1egislators are certainly immune t"tom civilli"bility relating to le"islative acts; it is unclear, however, whether they would also be immune from crn1ll11Cl1lJability (Sldl/er \'. Superior Court, 50 Cal.AppAth 1771 (~l~-)~lIl1lil1g, but finding 110 California authority relating to a 1!criminal'! exception to absolute 1I111111lnity [iH legislators under sl"te law) )' Given the apparent state of the law, loca] legislators ,','uld unly be certain Ih"t they would be Immune t"t'om clvilli"bility and could not be cert"in th"t , ",Ithough the Slculer Court notes th"t '\vell-established tederallaw supports the exception," \\ hen I'ederal case authority is applied in a state law context, there may be a different outcome rederal authorities note that one purpose supporting criminal immunity as to federal legislators from federal prosecution is the separation of powers doctrine, which does not apply in the CllIlte.\t of j;.:dcrul criminal prosecutiun of font! legislators However, If a state or county j1IT1sel.:ulnr hrought criminal clwrges agalllst a loud legislator, the separation of powers doctrine lIlay bar such prosecution. (Cal. Cnnst.. art. [fl, sec. 3.) As tederal authorities note, bribery, or Idhel criminal charges that do not depend upnn evidence of, and cannot be said to further, any k~JSi<lti,c <lcts. C<ln still be prusecuted a~ainst legislators. (See Bruce v Riddle (4th Cir. 19~O) (,\ I F.1d 272, 279 ["Illegal acts sLlch as bribery are obviously not in aid of legislative activity ami legislators can chum no immunity for lllet;3.\ acts.!I]~ Umted States v Brewster, 408 U.S. 501 [indictment for bribery not dependent uponl1ow legislator debated, voted, or did <lnything in chamber or committee; prosecution need only show acceptance of money for promise to vote, llot c<lrryill" through of vote by legislator], Ullited States v Swindall (11th Cif. 1992) 971 F.2d <92009 California Police Chiefs Assn. 36 All Rights Reserved 14-85 they w\)uld be al all immune from CI"Imlllalllabdity under state law. However, there would not he any criminal violation Ir'an ordinance adopted by a local public entity were in compliance \\"Ith the CUA and the i'vflvIPA. An ordinance :JlIthorizll1g and regulating medical marijuana \\()ulcl Ill)t. by virtue solely oflts subject matter, be a violation of state law; only If the ordinance il...;eli'perrnitted some Jctivity Inconsistent with state law relating to medicnlmarijuJlla would lhere he a viul<Jtion of Slate law that could subjecr local legislators to criminal liability under state 1.1\\. ()li ESTION 3 !fthe governIng body ofa city, city and cOllnty, or cOllnty approves an ordinance authorizing and regulating mariJu;]l18. dispensnries to implement tbe Compassionare Use Act of 1996 ancl the j\.'ledlcal Marijuana Program Act, and suhsequentlya particular dispensary is found to be violating state law regarding sales and trafficking of marijuana, could an elected official on the goven1ing body be guilty of state cril11111al charges" ..\.'is\\'FH .A ner adoption n f an ordinance authorizing or regulating marijuana dispensaries, elected orticiels could not be t()tll1d Criminally liable under state law for the subsequent Violation or'state law by a particular dispensary. ",'i,\ LYSIS I~~l:"t'd nn the .-;t~lte 1~1\\' pr(WiSlOnS referenced 8bove relatlllg to aiding and abetting, it does not '-:'.:t:lll that a local public entity would be li;1ble for any actions of a manjuana dispensary' III \ Inl~ltinll nl-'slate lav\'. Since all ordil1ance authorizlllg and/or regulating marijuan3 dispensanes \\ (luld llcceSSll1'1 ly only be authorizing ~Ind/or regulating to the extent already peril/it/eel by state hw. lucal electecl oftielals could not be round to be aiding and abetting a vwlatioll of state law In telet, the [';[MFA c!eady contemplates local regulation ofclispensaries. (Cal. Health & Safery C(xle sec. 11362.83 ("Nothing in this article shall prevent a city or other local govel11ing body frolll 8doptlI1':; and enforcing laws consistent with this article.").) ;VIoreover, as discLlssed above, thel't may he legislative immunity applicable to the legisbtive acts of lI1cllviclual elected ot1icials 111 ,-\c1npting 8n nrdlll,-ll1ce, especially where it IS consistent with state law regarding 1118rijuana dlspellsanes lhat dispense crude marijuana [IS medicine. 1 j31. 154!) [evidence of legislative acts \\/,-lS essential element of proof and thus immunity appliesJ.1 Therel(,re. a criminal prosecution that relates solelv to legislative acts cannot be 1l1<llnlained under the separation of powers rationale for legislative immunity Q;; 2009 CaliFornia Police Chiefs Assn. 37 All Rights Reserved 14-86 (JliESTIOi'i ~, Does approval ot' such an ordlllance open the jurisdictions themselves to civil or crimlllalliability" ANSWER J Approving an Orclll1Jl1Ce nuthonzing or regulatmg marijuana dispensaries may subject the jurisdictions to ciVil or eriminalliability. A,ALYSIS l 'nder federal law. criminal liability IS (['eated solely by statute. (Dowling v. Ullited Slules (1085147-' U.S. 207, 213.) Although becoming more rare, municipalities have been, and stili llIay he. crillllllally prosecuted for violations of federal law, where the federal law provides not jusl a penalty tl)r imprisonment, but a penalty for monetary sanctions. (See Green, Stuart P., Tile (1';11/;11,,1 f'msec"l;nll "{L,,col G()J'cl'I/lllenls. 72 N.e. L. Rev. 1197 (1994) (discussion of history Il!'1ll1111icip,-11 criminal prusecutinll).) Till' (':tA prllhibits persons from t'ng:aglllg ill certalll acts. including the distribution ~.lI1d p"soeSSI"n ()fSehedule I substances. of which manjuana is one. (21 U.s.e. sec. 841) A person, Illr purpnses of the ('SA, includes "any individual. corporation, government or gove111l11ental subdivision or agency. bUSiness trust. partnership. association, or other leg;)l entity." (21 C.F.R. see 1300.01 (34). Seeals021 e.F.R.sec 1301.02 ("Anyteml usedm this part shall have the c1dll1lllon set forth in section 102 of the Act (21 U.S.e. 802) or part 1300 of this chapter.").) By ils verv terms. then. the (,SA l1lay be violated by a local public entity. If the actions of a local puhlic entity otherwise satisfy the requirements of aiding and abetting a violation of the (,SA. as clisl'lISSed above, then local public entities may, indeed, be subject to criminal prosecution for a " IllL1l1oll ()!' federal 1;:t\V. I inclcr either ICdeml or state In\\. local publie entities would not be subject to civil liability tllr the Illt.:re adoption of an on.llnance, a legislative act. As dlscllssed above, local legislators are absolutely iml1lune from clvtlliabtllty for legislative acts under both federal and state law. [I) ~lddltl()ll. there is specific iml11unity under stJte lnw relating to any issuance or denial of permits. QliESTION Docs the iSSl1~111Ce ofa hu:;;;int:ss license to a marijuana dispensary involve nny addltl'lll~ll civil OJ" crilllinallinbllit)i for (] city or cOllnty and its elected goveming hl,ldy'! ,<\NSWER 5 Local public entities wtlllikely (fol be liable for the issuance ofbuslIless licenses to lllariJlI~l1la dispensaries that plan to dispense crude ll1anJwlna as medicine. '92009 California Police Chiefs Assn, 38 All Rights Reserved 14-87 -\,'i".LYSIS r~lI:.:;illt~S licenses are Imposed hy cities \vlthlll the State of California oftentimes solely for rt:\ el1L1e purposes. but 3re permItted by state law to be imposed for revenue, regulatory, or for hl)tl1 revellue '::l11d regulatury purposes. (Cal Gov. Code sec. 37101.) Assuming a business license "rdlllClnce IS tCH revenue purposes only, it seems thot a local public entity would not have Clny Illlbilltv lor the mere collection ofa tax. whether on legal or illeglll activities. However, any liability that would attach would be al1Ulyzed the some as discussed above. In the end, a local puhlic entity could hardly be sllld to hClve aided and abetted the distribution or possession of l11C1rijuana in violation of the CSA by its mere collection ofo generally applicable tax on all husiness cnnductecl within the entity's jUrisdiction. ()\TRALL FINDINGS ,'\11 ,,1'tl1e ahove Illrtherexemplities the catch-22 in which 10cllI public entities are caught, in tTying to recnncile the CUA and iVIMPA, on the one hand. and the CSA on the other. [n light of the e.,istence of the CUA ond the MMPA, and ti,e resulting fact that medical marijllOna is being used by individuals in California. local public entities have a need and desire to regulate the [(Icatlon and operation ofmeclical l1l<1riju::ln<.1 facilities within their jurisdictlon.6 10] I [O\\cver. because of the divergent vievvs of the CSA and Califolllia law regardmg whether there I..... <.lilY l.lcCl::pLc:c1 "mc:dlc;]I" Lise of marijuana. state and local legislators, as well as IOCol public l'illlt\;.:;::: themselves. could b~ subject to crimlllol liability for the adoption of stat lites or (lrLi\11,-1I1Ce~ furthering the possessinn, cultivotioll. distributIon. transportation (and other act prohihlted under the CSA) as to marijuana. Whether federal prosecutors would pursue federol crimilwl charges agoinst state and/or !ocallegislatOls or local public entities remains to be seen. But. hased '<n past practices ofloclllly based V.S Atromeys who have required seizures ul'large <1ill"unts ol'm<1njuana betore I"clerol lilings have been ininated. this can probably be considered unlikely. () Several compilations of research regardIng the impacts of manjllana dispensaries have been prepared by the Calitornia Police Chids t\ssociation and highlight some of the practical issues f~lCillg local public entItles in regulating these facilities. Links plovided are as follows: ""l\'crside County Office "fthe District ."'ttorney," [White Paper, Medical Manjuana: l-listOlY ~ll-jd Current CnlllplICiJ.tions. Septemher 200() l:"Recent [Ilfornlation Regarding rvlarijuiJ.na and I :]~pl'n::;arle;.; [[1 Cerrltn Police Dqxlrtlllel1l Memorandul11. dated January 12,2007, from t.'on1l11ander tvl Regan, to Scott C. Kirkland, Chief of Police]; "Marijuana Memorandum" [EI (ernt() PolIce Department tvfelllorandum, dated Apnl IS, 2007, from Commander IV!. Regan, to Scull C Kirkland, Chiefol'Police]: "Law Enlorcement Concems to Medical Marijuana DIspcnsanes" [Illlpacts ai' Medical Marijuana Dispensaries on comlllunities between 75,000 and 100,000 population. Survey and council agenda report. City of Live11110re l CO 2009 California Police Chiefs Assn. 39 All Rights Reserved 14-88 CONCLUSIONS In light ol'the United States Supreme Court's decision and reasoning in GOl/zales v Ralch, lire United States Supremacy Clause renders Califomia 's Compassionate Use Act of 1996 "nd lvIedlcallvlarijuana Program Act 01'2004 suspect. No state has the power to grant its l'itizens the nght to violate federal law, People h<lve been, and continue to be, federally !'msecutcd Ic)r marijuana crimes, The authors of this White Paper conclude that medical marijuana is not legal under federal law, despite the current California scheme, and walt for the [Inited States Supreme Court to ultimately rule on this issue, l-urthermore. storefront marijuana huslnesses are prey for criminals and create easily idelltll-iable victims. The people growing marijuana are employing illegal means to protect t-l1elr valuable cash crops. [vinny distribut1l1g marijuana are hardened criminals.IO) Several ~11'c lllelllhtTs nfstepped crimino1 street gangs und recognized organized crime syndicates, \\ hile (1thers distributing marijuana to the businesses are perfect targets for thieves and .r,)bht...'l"s_ They are being assaulrcd. robhed. and murdered. Those bUYll1g and using medical 11lariJllClna ~lre also being Victimized. Additionally, illegal so-called "mechcalmarijuana di~I)t'Il~arie~" have the potential for creatillg liability issues for counties and cities. All I1wriju'''1<I dispensaries should generally be considered illegal and should not be permitted to e:\ist and engage in bus1l1ess \vithin a county's or city's borders. Their presence poses a clear \'iol~lti(1n of kderal and state law; they invite more crime; and they compromise the health 1.11ld \velfare of law-abiding citizens. @ 2009 California Police Chiefs Assn, 40 All Rights Reserved 14-89 ENDNOTES I U.S. Const.. ul1. VI. cl. 1. : U.S. COllSt.. art. I, see. S. cl. .1. : (;()I!:(/!t'S ,. Haith (2005) 125 S.Ct. 2105 at p. 2204 ~ (",'(J/odt's \' Nuich See also /III//n/ .\/U(CS \' ()(lkllllu! C(ll/l/aIJl.\" Buy!.!rs' Cooperative (200 I) 121 S.C!. 1711. 171 S :: (;/I//:ci!c'\' l' Noit'lI (2005) 125 S.( l. 21 C):'i: see also Ulllted .\'wfes \I Oakland CWlflabis Buyers' ( 'O{)/J('nIflI'(' [21 S.U. 1711 " .I()sll !\-kycl' ..\: Scott Clover "[I.S w( lIl' t prosecLlLe medical pot sales." Lns Angeles Times, 19 rvl,lrch 21 HllJ, <1\ ~Illtlhlc u\ I:..\..L'~:~'::..::'~!....:.!J-\: ;'.1.l:;~.\::.'..1.]'~.~!~.~::,:,:1,~,).!.~u.lJ1HnL:-ID.cdQQLI9-2009111<:11'1 ().(lA9S7Si I .',Ielt\" See f'('()fl/c l". MIIIl'('/" (2002} 28 Cd.4th ';'57. ...t03 ,-- I-Ic:ilth ,me! S,lfcty Code section 11 362.5(b) (I) (A). All references hereafter to the Henlth and Safety C(l(:k ~IIT bv section number ollly " H&S enelt.' see 11 J62.5{u). . II' H&S Code see. 11362.7 ('( SL'(j. II H&S Cndt.: sec. 11362.7 I: H&S CnclcsC'cs. 113()2.71-11362.7(J. 1\ H&S C ode sec. 11362.77 P H&.s Code secs. 11 362.7(1.:1 ~l1ld 113()2.775; fl('(ljJlt' \' Ucict'o/lll (2005) 132 Cal.AppAth 747 .11 p. 786. I.' H&S (.pdc sec. 11362.77, whether or 110t this section violates the lulifomia Constitution is cLllTcntly 1I1\lk'r IC\'IC\I, by the Calitornia Supn.?1l1e COLlIL Sec [Jl'opfe l' I\efly (2008) 82 C,1I.Rptr.3d 167 and Pl'U/l/l' \. /'/I(J/Jiji/wkdl' (20nS.) 85 CI1.Rplr .Id 6q.l I', H&S Codc st.:cs. 11357, 11.158, 11.159, 11.1(10, 1\ 36(1, 11366.5. and \1570. 1-: H&S Code sec. 11362.7(11) glvCS ~l more comprehensive list - AIDS, anore,'Cia. 311hritis. cachexi.l, CIIlCCT. c1m)llic pain, gl,lUCOI1l~L llligr,lil1c, persistent muscle spasms, seizures, severe nausea, and any mhe! clnnllic or persistent Illcdic,il symptom that either subst~lIlti<llly limits the ubility of ~l person to conduct one 01' rnore life llctivitics (as ddined in the ,~\DA) or Illuy cause seriolls hiJrm to the patient"s snfety or physic<.ll or mental health if nOl allc\"i<lted. I.- I'm/l/e \' :vlowcr (10n2) 2~ Ca14th ..).57 at p. 476. I" Id Elllph:\sis ,HIded. :', 1\lcl.;cl. (hgillli:::Ufi()// olld O/}('J"(f/I(JJI (~r('()()/i('J"({{Il'cs. 21th cd. (Phll(lde]pili~1. Americ:lll L:l\v Institute. I <JIll). J-.:1. :1 S~1111 St:11l[1)1l. "Pot Clubs, Sei7cd PI~lIlIS, Ne\\. Pn::sidenE-ivIarijuunn.s Future Is Hazy:' .";oC!"a!l/('I/(o Ih'l', 7 December 2nCiS, I <')A. ~~ For a statcl,vick: list, see httpJ/canor1llI.orgiprupicbelisr.html. ~,' Laura 1\'IcClure. "Fuming Over the POI Clubs'" Ca/i/()I"II/(I L(/lIo~ver A!ag(/:::iJIL', June 2006, :~ H&S Code scc. IIJ62.765(c): sec. e.g.. Pco/,/l' l'.UCICCWIlI, 132 Cal.AppAth 747 at p. 764 25 (;oll:::a/es \' Uuil'h. .I'III'/'({. 125 S.Ct, at page 2195, C" I'co/lie \' (/C!('t'{/1I11 (21)05) 132 Cl1.AppAth 747; see ,1150 H&S Code sec. 11362.765 :; IS1"<lcl P<lckel. 4-5 Italics udded. :~ H&S Codc see. 11.l62.7(dH J). ~" Sec. e.g., i'vIcClure, "Fuming OVCI Pot Cluhs'" ('ul(/iwlliu Lml~v('r /v!aga::ille, June 2006. ill H&S Code secs. 11162.5(cl and 1 I 362.7(cI){ 1 l. (2),(.""\), ,me! Ie); see also Pco/lle e.\: rd. LungrclI v, Pcron (1l/()7) )9 CI1.AppAth 1 J8:., 1395. 'I J>l'OfJ(c \' ,t!()\\'cr, 28 Cal.41h at ~76. El11plwsis added. '2 Glenda Andersoll. "Laytollville i'vlurijU<lI1Cl Guru Shot to De:lth: 2 Others Beuten in Home: No Suspects but Onicials Believe Kill\ng R('latcd to Pot Growillg:' SUlltu ROSII Press Democrat, 19 November 2005, :J vu i I ab leu t l11LP :/!..2::;.}.~.i J)!i',Ssl!;:n 1.!2Qi!.l.C.:'.1I!.:.:.J.J2b:.;:;iI2b~~Ql~~!L1 i.t Ie',' i\ ! .0.,,=./2 (l021 I.LI 9.. !'::Lk;~.s.L~~.~!1d(r;! LL~}i: .l.l "lvlcdical iv!;lrijllana Shop Robbed'" ,).({//fll f}arh({{"(I II/dependent. 10 August 2006, available at Llt II!c ! r~ (l~'! )~!!~tj.Cl.!lS~ElL!).t;,~,~.)i:.2JXJ2~U-!gJJ~UJ:~:.! \ cal.:tmu.:U LlfIU.h!~";.!.illJ2 ::r..idl21l.Q9.i l~ Melrk Sc\r~\ll1cllu. '"No Good Deed Goes Unpunished'" An(/ersol/ Valle)" Advertis('/', 16 June 2004, ~I \' ~I i I d h Ie C\ t i.lUn ."_:.~'.~.::~,.U"U:~~].\.-~J:_\..:~L!l~! i :!.:.!.::.\ ~.L:~..~:,'~U'; !l!..:llll nl @ 2009 California Police Chiefs Assn. 41 All Rights Reserved 14-90 . Ricci (ir~l!1~11l1. "Police Arrest Suspect ill Dcadly San LC<.lndro Pot Club Robbery:' Oak/ulld Trihlll/c, S '" lIC!Llsr 20()6, UV~l i lublc ~\t ;'1 tl :1:,; 'iiTlr.Lt", 11,::1.':;.....". ~1, ;~,~l1liclcs/m! (w4 I 76.. i:; 2nnf)01::f)(\/ai 11166592:~ '" rZlc\.'! (~jr~lh;llll, "IV[~\ll Fi.\~'~"~'"iVl~~.~i~~~c~i~,",;g~'i~;p~t~R-~"bb~"~Y::-()(//J({lid TrihUl~-;;~ 24 August 2005, :\\-ailuble ~It !:_nE;_"_~:,'_'~~_::.11;,:i1L!~Jl!:_C'II;:'L_:-i\ldJ~~-"~~L2 i ()_~J.ll!i11! (, Rieci Crah:Jlll. "Another Ivledicullvlarijuana Clinic Robbed," Oak/and TribuIH.', 10 September 2005, ~l\'(\i I:lble <1t hit ll:: it I1d~u.t .c;~;:;.'"'I)II1. ph_d't 1,'1,:..;; 11'11 Cilcf i 7(lii" ')1 \llSfJl) 1 (hll n 15S09\S0;print JXLaura Clal k, "Pot Dispcl1sury Owner Slain at Home." Ukioh Daily Jot/mal, 19 November 2007, available at 1.1 :ib:..:.:....;~~I::'_,E;.lE.:.:ii.lli!.!J~1. Cf_1i);; t~rll [! - \\ ;1 :'- ]: '-':.It! I i r1l' -iH~\\' S '2.11.) i O-(a-cot -di SlK;nS:.U'v-Q\V n ~r-si ai n -hollle. Ii I inl 1" Llunl Clark. "Breaking Nc\'....s: Medicallvlariiu;:llla Supplier Les Crane Killed:' Ukiah Daily JOllrnal, I C) Nnvclllbcr 20()5: Luurn CI~1rk, "Lcs Crellle Murder lnvcstigation Continues," Ukiah Daily JourJwl, 27 Novemher 2005: Glcncb Anderson, "Laytol1ville lv!miju,-\na Guru Shot to Death," Santa ROS,l Press 1)['11/111'/"(// \9 Novell1ber 100S: Clcnda Anderson, "Pot ActivIst Likely I(new 1(i1lers: Police Believe Gunmcn \\"lw Rnbhcd L,-Iytollville Ivl<ln Famili~lr With Home," SallfCl Rosa Press Democm!, 20 November 2005, ;1 \'~I i i:th Ie ,It lot! :': _ . \.,. ;\. ~\ .,-,,;I,;,_dm.~hh'Li_li .'.I:--:C' li11t.~I1I__y\l'\\" ]l)l: 50" -1't ,vl:lr[.:; SC,-l1~'I;l'~~i-i;: ::T'I~-~-M-~;~J~"'P~'t"C'i~"n.;;~i'~I~s,'; .-~~;~/~:;',\'(Jf;Vulle-,' Arlver!iscr, 3 October 2007, available ~It 11,::: II '.\ \\ .l h.:,\" ,Le. )11:. (!..j:\ Ii' i (lnC,:I:~ T.11 lnd :iT I'-Irl~~l~nn. "Killing Highlights Risk of Selling M,-lrijuan8, Even Legally." Nt""!' York. Till/es, 13 March 2007. '-I\''-Ijlabk at ,;", 'HI1>.:s..(:un_:;.:':)_f)!)7:l1.)/(;,:.__~::,,'.i!,:~l~,-I.l.l,:I,1hi\.hlml'.'cx""'; i ~ I S~OOf)!)&cn ';;:c6()9SlJ6[)l)4add:~5fJ,\: l'I''':)f}/1.1 -I: T:l1li i .'\ L;~i;;11 ~1l ~- in R; ~:I~,;l~!- \v'i~~'t(;I~': :~-r(;t"T'I;~f;"'C~~;'~~~-i';~- Boy.;~-Si~-~~ti~~-g'D'~;'t'I;~~-i~~A flg('!~;~-i,:~;;~~~. :'"2~1'""" .I~\\HI,lry 2()()7. avail<.lblc at "'. ,~~-'._.~~,~~~ ':'-" i !-_!_.'l.!l.E!~1.~~\jil0i,-~ :[~J.;!~-.J 'j 1 '::iJ !",n.i U'-!l !iLlll ~s: be U fit.'\!'.':J:... .~h{W~LD:!. tLeilll1. VI I r 1, \,VIII 81:;iwlll. ''(']:In':1l1011t iVlurijuul1:1 Dispcns:lry 8urgli.lri:.:::cd," IlIlwld Va/ley D(fi~v Bulle/ill, 27 J"l1u<Jry 2007. ,[ \ ~I II ~\h iL' ,II i [1' -~ PI,-lIl1ll11g C oilllllission Agenda, a vai I able i.lt Lw.;!.:~.:.~\ W\V .....:100([.': 11 t1}.(1I"\.>;: see 3150 A I an Lopez, "EI (en-ito 1\!tl\'CS to 8'-111 Dispensaries'" COI//m COS!O Till/cs. 24 June 2006, aV8ilable at ,,; i): ~\ \, \\ .1:,(>rl:iill~tl'\' .nd'f~)rllin .U\:!lli.l',ci ,~:t:~Ti~'_HT10\ cS-lo-h:UH:annabis-cluhs,.VJ74.hllll j<FrcdOncg,l, "City Gans Outlets for IvledicallVlurijuana." Sml Gabriel V([lh:v Trilnme, 17 August 2006. ~I \ <III ~\b Ie at j'_:'::1' ~ '.\ 1\ .k~;-:'Ih .urt!.'k:lr~~i um,\ ic,\ l0\j1C.llb.P'.'C-='()*~=2-136&.st,m=O&.sid= j 5b6da 115aUuilJ.3f:Jeb I i(1.d.4!95cbiJ Jr, 011C\1,l. r Glcg~ BC<.\to, "Pot Clubs in Peril. Are S<lll Frulleisco Zoning Boards a Bigger Threat to Medical Mari,iuL\nll ThUll the DEA"" H('(/sIJII A/llgU:IIIC, Fcbru~lry 2007, available at .b<~~~._\" \'~',-l:.z..':.!~D.,-~~lU.l..ii':\\.::._~_b:.:~ul..:.:2.j ..l.1lL!2ll, Cnlig T Steckler, ('it.v (~/Fr('IIIOI1I Paltce Deporm/clI! .\ fcll/(}/"rIlldUIIl Fe Medicu/ rl-!urijl/(I/w 1);.\pclIs((l'it's - POf('II/ial ,)'c('()/Il/m): fll1pucts, 20 June 2006: Tim 1\1 ilkr, ('in' 0/ 1I/UfrC/l1I Folin' [lelw/'/l!Icl// ,)(Jecia/ O/}('r{I!iol/s DIVISIOII IHclJlol'ullduln re iV/edicu/ 1/1I1"!llIlIlId OIS/1('I/SOI1' {i\hI/OJ /filII ()nlillul/('c, I J June 2007 J~ .lctTlvlcDollnld, "IS Held]1l Raids on Pot Stales:' ,)'(/1/ /)/('gu Ulliol/-Trihulle, 7 July 2006, available ~lt i~~,-i~~__2':..~~\,-~'--.:J2.:!!J2J.!t1\i iC!;;!:Lf.:ln.H!.!J.!.:2E22.L222(ll ii!.,17 ;il(":~ S 7 n1 I!h~!j:ltnl! -1" I'v'lc[)nnald: Beato. ~" ell. H&S Code sec. 11362.5. 31 Ethun StcW,lI"t. "The Ivlcdical iVlarijuCll1a Movement Grows in Sant::! Barbaro.: Emerald Dreams and Smoky Reallties'-' SfllI/O 80rh(l/'(/ IIIr/Cflt'l/dt'l/r. 3 May 2007, available at ! !.'.'!::, _!,~!ll.~l :,';;; 1 (1;:1 U..,-~}ll1.::D.s~'~.j...:f)( C~_!.~_l;J..,,_iL.::~.u..Ji~d.l.U!.L :1 n'ElllE!l.lit. r:""'2.=:cnll:n t ,J;n~~~'in~: 111 t:l-h;u'hillJL..: see a i so '\d:11ll "\slltnn. "DE,..\ [~usts Pot Store Del)>- t-\ncr Council T:tlk'" A-/odes!o fiec..', 28 Septelllbcr 2006. ': \-kDollald. :)tC\\',IrI. _'J ~tc\V"n, ~~ Stew:II'1. ,'" N,ltil)I1<.:I Drug Intelligence Ccntcr, [JOIIICS/IC ('{[/ll/uhi,\' ClIlflva!io/l Assessme/lt 2007, February 2007: ~\\'dll<lblc Dt iltl~]../,,\ \'I\-'. .U:-;d0i.!2.()V, ndlcDuhs21' 2:2JXh/: Ja,'(on Van Derbeken. Charlie Goodyear, & R<1chcl Gordon. "3 S.F. Pot Clubs R<.liderl in Probe ofOrg<.mized Crime:' Sail Francisco Chrol/lde, 23 June 2005. ~1\ aii,\blc ,It http.//www.sfgene.eom/cgi-biniarticlc.cgi?file=/c/aJ2005/06/2J/MNGRODDG32I,DTL, '_:\PO l'cllt)!.! information, 2007. @ 2009 California Police Chiefs Assn. 42 All Rights Reserved 14-91 5; Vun Derhc!,en, c! (I/. <s [(~Ite Hencloty, -'I\ilcclIC(J111l,-\1liu~lIw indictment Illlse,-lIcd:' .Juris!, 24 June 2005, available at !'I.'~",[ ,1.\\ ';;1 Staey Finz. "1<) L""~lillCd ill rvlnllcillul Pot Indictment: ivlnre Them L).300 iVlarijll:lllU PI:.lllts Were Seized ill Raids." ,)'(/1) Fmlll'is('{) ('hrf!II/I'!c. 2-:1- June 2(j()5. ~lv'-lilclhle elt ~:-,-,-~~;L" ',",)[1. ':~,:I 11'1, L';I"\: '-",-'.i ';.1 ;, ~:,,!,~ !HI,>.:L::'\t."i\ ':[)LC4Ci.UTL .'" Or~~mll.edl'rllllC 8ehind -iV1cdic~l1"iVL\rilll~l1lel Dispensary in Cal1fo1l1ia:' PIISJllilghuck. 29 Septembel' 21)06. cl\'~1 i lab Ic elt t~! hiL l',:'i L\t I:" ." I :~_j);lck: u',J i v,:.' 201)h..-I;9, :?lj: 791_asf)'~: "Ashton, ",, l ity of Sun Diego, Crime ,\'t({/ISrICS. 20()7. clvuilable at IJ_UJL:..:_~Y_\V.o.;~U.ldi.,::g,~.).:l~Q~'. r,1 Ncltiollcll Drug Intelligence Celltt:r. MIIJ"!iIlIIlW, Jellluary 2001. available at hq2,j.\'::.~\':"'\\..J1sd()i_~::~ ,,' George .A..nust,lsia, "Viet Gallgs Oil the Rise Agc\1ll~ The Emerging American Underworld-Gangs' rltll1l-til[ed Houses a Gro\ving Punllt' Dru:,; Tr~\de," Chrnllwlc (!l Boredom, I S April 2007 : \Vill Bl!;hum. .'Hollses L.inked to 1.SI,11l Clc\llgs," /lIllIlId Vol!!})' Dud)" Bulletill, 23 September l007, ~I\ dil:thic cti il!. i:'::.._._' '.\ '\ ::~..:,'..!.::'\' ~'.i, "ii~(~,.\:;; ,,~ 81gl1elm. 2.' September 2(1()7 Feels ( <1m: ,111d \Vent -N()\\ \-VhiJt'l HlIl!lho!dl ( OUIIE\ News, 30 June: lOOS, available Jt 2,'X' ~_ :.~. ..:..:.:..;:_~G ~\~j!..:...~~.:..:. "" LA['U [{t:jlI1rt Numher DR;;'Otl)625C)()f1, Ii) August 2U06 h: LAPLI [,epnrt Numbel DR#()(10622\(Hl!, 16 i\ugust 2U06 j,:, Tml :Ylillcr, City of Anaheim Police Dep'1I1111ent: SPCCicll Operations DivislOll MClllOl"andum rc rvlariiu~ll1cl DispensJry (l\lll\;ID) Ban Ordin:l1lcc, 25 October 2006; Johnson; Craig T. Stec~dcr, CIty of FrClllunt Police Depultment, rvlcrnoranduml'c l'vleolc<11 Marijuanu D1Spens:1ries- Potential Secondc\ry Impacts, 2{) .lunc lOOG. h" Stc\\,urt .ll,llllSLlll. " .\Shlllll '"Wkli Ins the I_!.S. DEA :-.~Iid ahnut llluliGlIlll~\lI)Uallel') " Iv1cdical M:Jrijuuna ProCon.org, 2005: "Wh,-It helS h.:dn~lll:l\\ cnfnreclllenl "clld ab\lllt llledlC,-illllullJUi.\IW'l" Merl.ical Marijuana ProCul1.org., 2U09, ;] '''~I i 1~lhlL' at i;l,l.:"l.:. Il';,,:dl,. ~Il ,,":L.U.,., T' '; ,!' .':'~ '_~~~_:'.:.~~n_~\,~:,,::~~:.~I~.L1'!q'-:t;5~,!::..I.~.LL~ cn(.L~.~~.~~: . Jim AI ilLl. "!'\,b'l/Uima jVlcl\i);IIlSlilJlS: CLJpS Say OrganiLcd Crime Is Sending Fumilies Into the Suburbs tn (irO\\' iVl~lrliLl~\lla'" ABC Ne\vs, I.:.l- JUllC ~on7, ~Ivailablc at iltl;" 3,~c12 "Li,,;_ J ~\'ilo~. :--\ll;'lstaslCl~ "DEA R<.1ids rvli,-11111 (;ro\\, HOLlse," CBSS.com,.30 Aplil :WOS, avai1<.\bl~-~i'-' ~:',- ,~" Ii' ,'\ n(lst~ls1 ~\. '" Dighcllll, 2.) Scptl.:mbel lOn7~ Ethan B<lron. ",'~ngcl Linked to Gro\v-op," The (-J/'O\.'ince (("NBC) 11 A'liIl 11)(J5. ,IV~lllcihlc "It l~"t.:' ,y_,y~\...,;.!.!,;"p"';' Ui;;h~llll. 2.' September 2{)07 ni;;he\tll. 2~ ScptclllllCl 21)(17 -., HCdll1<':1 Allcn. "iVbnil1~ln,-1 CirllIV Hnllse'., Fluuri::oh ~lS SOLltll\liest Florida M,-lrket Drops," HCI'aldTld,ullc.el.llll. 24 July 2IHI/. ,1\e\ll<lh[1.; at I~:,,:..i.:: ..... :1."1." :;.))!.L7.I.2.'.?.~.::!-_;~:~{L\Y,~:".'~7.!.L~.:,:,~.LJ:i((. ""[1'1(' [Lilley une! Tim R~iicr1l1~1J1, --\Vherc I\I~I('Y J:me is the g1rl next door," Loj' 4nge/cl' Time.\', 1) MDY :!II(JS, aVo1l1,d,le ,It .l'1.l.i" .).r:L~:,:L' .l.LL')<:::.:Jlrnc~put.1 i SI ElIreku H'JUSC Fl1"C the ReSI\lt of Y ou-kno\v-\vhat'" Htllllho/dr Cnunty NC\-l's, 7 September 200S, availahle al';l:V__,:U'-::.:::.?,'ll..;i!"l.l>u~U.!.;Y,,(',:/'i , \'vritten relll:.!1 ks or' Arcata Pollee Chief Randy Mendosa, 1 Ivlurch lOU9 S2 Jesse iv1cKinley, "Manju~llla Hotbed Retre~\ts nn Medicinal Use," Nel;v York Time.\', ') June 2009, :)\-,~)jlilble ,It http://ww\v.nytimcs.com/200S/06/09/us/poLhtml.._r= 1 &em&cx= 1213329 s' Deputil:s: File Dunmgcs Holid'--l)' [\"lalijuClnCl Grow Home, tampabay.colll, 15 Februi.lry 2008, aV[lIlGblc (It ", ..,. ". ,,:,1111LI; :::'. .l" 1:11 11"1_.,11" 'I'.';"~ ,'. ',:.'::: :1;": ((~, ":. ,;;1,,\: . :i"C'1l'lcLI1"1 d ';JL);'~~II1~~Gro~v HOllses ('cll1IlllPc\L"l Utility 8111s, Pubile Safety," News press.com. 12 April 200S. ,1 \ ~I i I ~I h II' ~I t :::.'.:':. ..-: \,~::;~'>.' :'~ ;Xi..__.i.,,:~ .~~.;).:,~:: ,,,,I': !._'. Y,". i';! kl.l)n~~j "'''DE,L\ R~llcb I\!ll:illli (It'D\\' Hlllise." ~f, Scllldy LOlley, "'\ll"Csts T~lkcToll Oil Local CUll!;." The SWT(/II/(!!lto Bee, 14 AUgllSt 2008, avail,lble ~\t ~1 2009 California Police Chiefs Assn. 43 All Righ ts Reserved 14-92 ~:: '<-;CI)!t (jlo\'cr, "lv101 1'0 Bel;.' rJot Dlspensdl '/ Owner Found Guilty of Federal Charges," Los Angeles Timcs, 6 August 20ng, aVLlilublc at 'lil~'!.)6:i.:..L~i.'trs,_~.ll.:J.l~!_ ~" [hlilcy ~lllcl Rcitcnnan. "" JalllS R,1I11say, "Speci,-lI Report: Gmw-op Hl1U5C e:.m Still Be Dream Horne: Realtor Says," The Barrie -I(f1'(/lICL', 2) August 2iJOS, <.lvnilublc at "I '\ \'11:.1. "~ G,-Idev and R~itcl'lll<.\il. .., Steve' Davis, --Grmv SCL'llrity." CUlIl/uNs ('II!{urc Mugu_ill!.', 6 August 2004. 3vai]uhle at '., ;;.~ 01 , R . - '-11 C: ,111(. ellerman. 'f' See PC()fJ/r' l' r fr::'lcculIlI, 1.1.2 CiI.AppAth 747 'J(, City of PlcuS:'1Il1 Hili PrCSCllwtllJIl to Its Planning COlllmission by Planlllllg DiviSion Staff on April 24, :zn07 '" Office Con sol id<.ltion: By-law 361-2()()...J- or' the City of Bl Ull1ptOll, Ontario, Canada. <):~Dil1l\kCnllllnl, "Lalldlll~lI'k Bill T,II'1,;ctillg Ivl,-\rIlUaIlCl GrO\v HOllses Becomes Law," Attomey General Bill i\kCI.lIIIllll Nc\vs RcleJsc, 17 JLine 2nOS, cIValluble at hnp., IIll:.rli)I'id,ilcg,ll.colll/ncwsre-I.Il'it;'ncwsrcJLClscs/A FA E7E2BCC 1688D I 852574680070D23 B "., "ASI,-II\ (-icings iVlove Grmv-nps," Th,' --ISillll fl({('/f/c {'ost, 27 September 2007, available at '_,:.l.I,i.l<~~ :-I.~T.~.:,!.,',.,"'.' 'hi :'. _.hl~.~:::~:... ')Cl' \ ,1'-111 (iclllg:-: i\lu\c Ci!"ll\\-()p:-:. SeT "UIICS !\-Ian] L1ane\ l nntri bUIC [() Psy..:hoti(' 1IIIlcs,~cs"" ( 'arrcnt P.~~l'chiut1l" (Jnline 6(:2), Februclry 2()1)7 I": :-:'ce, c,g~, ,.. '," \;: ;:(,:'1'" _ '\.'c/~:~:i!;,:ill'c~11.Lll..J.!.2_rl'S, l]'~'iI I'" N,iriunal Drug Intelligence Cel1tcr. @ 2009 California Police Chiefs Assn. 44 All Rights Reserved 14-93 arl.\uana ISpenSarl Name Address History Dispensary, City of San Diego, in order of activity West Coost 2215 Kettner, Just opened Wellness/SoCal Premiere SD 92101 (little Itoly) Collective SD Discount Caregiver 3252 University Ave, SD 92103 Top Quality Collective 7933 Balboa, SD 92111 (Kearny Mesa) West Coast Wellness/ 6956 EI Cajon Blvd, Just opened SoCcI Premiere SD 92115 Collective Farm A/C - Farm 6070 Mt Alifan #202, Raided in associated Caregivers SD 92111 2006 (Clairemont) Green Kross Collective 3415 Mission Blvd, SD 92109 Canna Collective 4852 Voltaire, Near disp SD 92107 from 06 @ 4843 Voltaire Alternative Therapy 3251 Fourth Ave, Herbal Center #420, SD 92103 Answerdam 6645 Convoy, Raided in 08 SD 92111 Green Door Collective 3021 Adams Ave, SD 92104 Pacific Beach Collective 929A Turquoise St, Sean Grody, SD 92109 owner Opened 5.11 Nature Medicine 3520 Ashford #E, SD 92111 Healing Arts Coop 4009 Park #23, SD 92103 CA Best Buds 6186 University, SD Old Giving 92115 Tree, raided in 06 Top Quality Collective 7990 Dagget St, Raided in SD 92111 (Kearny August 2008: Mesa) Advertising heavily in Reader Total Herbal Care 4667 Cass, SD 92109 Raided 06 PB 420 Core Center 2705 Garnet, SD M D' es 7.09 14-94 92109 Members Only Collective 3795-A 30th St., (MaC) SD 92104 Hillcrest Compassion 1295 Univ Ave, Care upstairs, SD 92103 (NP) Wisdom Organics 8849 Complex #C, SD 92123 Beneficial Care 740 Broadway, Collective (BCC) SD 92101 Medicinal Solution 861 Hornblend, SD Patients Collective 92109 Non SD dispensaries Herbal Health Options 9612 Dale Ave #B, Snrina Vallev, 91977 Unharm Pharm 9026 Campo Sorino Vallev Infinite Healing 7364 EI Cajon Blvd, #117, LM 91941 Movement in Action 1050 S. Santa Fe Ave, Vista, 92083 Healing Dragon 2506 Santa Fe #8, Vista 92084 SD Dispensary Services 1232 Los Villecitos #102, San Marcos South Bay Collective 1233 Palm Avenue, IB 91931 Doctors/clinics Marijuana Medical 5205 Kearny Villa Way Advertising Evaluation center #100 Medical Cannabis 2667 Camino del Rio Old Medimar Consultants South, with Dr SD 92108 Johnson/ Dr Clark now North County Medical 1020 Second St, #C, David Marijuana Ene 92024 Gersten, MD Just finished 5 yr probation chanced name Medical Center & Weight 1516 W. Redwood St., Long time Dr Control Medical Clinic Ste. 105, SD 92101 Robert F. Sterner,Jr Medicann 4295 Gesner Street #IB, SD 92117 Alternative Care Clinic 4452 Park Blvd #314, Previous clinic SD 92116 location 800 Grand Ave, Suite B4, Carls bad 92008 14-95 ORDiNANCE NO. 2009- URGENCY ORDINANCE TO EXTEND AN INTERilvI URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA EXTENDiNG BY 10 MONTHS AND 15 DAYS A MORATORruM ON THE LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARlJUANA DISPENSARIES AND COOPERATIVES WITHIN THE CITY OF CHULA VlST A PURSUANT TO GOVERNMENT CODE SECTION 65858 WHEREAS, Il1 1906 the voters of the state of California approved Proposition 215 (codified as Health and Safety Code section l [362.5 et seq., and entItled "The Compassionate USt Act of 19<)(,"); WHEREAS, the intent of Proposition 215 was to enable seriously if[ Californians to legallv possess, use, and cultivate marijuana for medicalllse under state law; WH EREAS, as a result of Proposition 215, indIviduals have established medical mariju;:l1la dispensaries in various citIes; WHEREAS, there is no state regulation or standard on the cultlvation and/or distribution of medical manjuana and each local jUrisdiction may establish local gllldelrnes Il1 accord With unique local concerns; vVHEREAS, in October 2005. the State Board of Equalization instituted a policy that allows medical marijuana dispensaries to obtain a seller's permit, thus enabling the state to collect sales tax on medical marijuana sales; WHEREAS, In March 2009. tire US Attorney General stated that federal law enl')I'Cel11tonl offiCials would ease enforcement at California medical marijuana establishments; WHEREAS, the City of Chula Vista has not adopted rules and regulatrons speCIfically applicable to the establJSl1l11ent and operation of medical marijuana dispensaries and cooperatives and the lack of such controls may lead to a p1'olrferatlon of dispensaries and the inability of the City to regulate these establishments in a maUl1e1' that will protect the general public. homes and businesses adpcent to and near such businesses, and the patients or clients of such establishments; WHI~REAS, a medical marrjuana dispensary and/or cooperative currently is expressly prohibited by an Interim urgency ordinance; WHEREAS, the establishment of a medical marijuana dispensarres and/or cooperatives in the City will result in a direct and immediate threat to the public health, safety and welfare because the City does not currently regulate the lucatlon and operatiou of medical marijuana dispensaries and does not have a regulatory pmgl'al11 111 effect that will appropriately regulate the location. establishment, and operation 01' dispensarics and/or cooperatives in the City; WHEREAS, forty-five days was insufficlent for Staff to comprehensively review and consider options for the regulatIon of medical marijuana dispensaries 111 14-96 lhe City. The extension proposed would allow sufficient time to complete said re[)nrt and make recommendations to the Planning Commission; and WHEREAS, the City Council now desires to adopt this Ordinance as an urgency ordinance, effective immediately, to continue the previously approved interim urgency ordmance placing a 45-day moratorium and prohibit the establishment of medical marijual1a dispensaries, as define hereafter, in any zone of the City of Chula Vista pursuant to the authority set forth in California Government Code SectIOn 65858. The City Council of the City of Chula Vista, California, DOES HEREBY ORDAIN as follows: SECTION I. Definition. For purposes of this ordinance, "medical marijuana dispensary" shall mean any facility or location where a primary caregiver intends to or cloes make available, sell, transmit, give, or otherwise provide medical marijuana to l\vO or more of the following: a qualified patient, a person with an identification carll. or a primary cal'egiver. For purposes of this ordinance, the terms "primary caregiver," "qualified patient," and "a person with an identification card" shall have rhe sallle meaning as that set forth in Health and Safety Code Section 11362.5, et seq. A "medical marijuana dispensary" does not include the following uses, as long as Ille location of such uses are otherWIse regulated by the City's MIlllicipal Code: a clinic licensed pursuant to Chapter I of Division 2 of the Health and Safety code: a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health & Safety code; a residential care faciUty for persons with chronic hfe-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health & Safety Code; a reSidential care factlity 14 tbe elderly licensed pursuant to Chapter 3.2 of Division 2 ot' the Health & Safety Code, a residential hospice; or a home health agency licensed pursuant to Chapter 8 of the Health & Safety Code as long as any such use compiles strictly with applicable law including, but not limlled to, Health & Safety Code Section 11362.5 et seq. SECTION 2. There IS a current and immediate threat to the health, safety and well.'are of the Citizens of the City of Chula Vista if a medical manjuana 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 ordmance a medical marijuana dispensary shall be considered a prohibited use in any zoning dlSlt'ict of the City, even if located Within an otherwise permitted use. No permits or alllllOrizations for a medical marijuana dispensary shall be issued while this urdlllance IS III effect SECTION 3. The City Council finds that this ordinance is not subject to environmental review under the California Environmental Quality Act pLlrsuant to Title 14 of the California Code of Regttlations (CEQA Guidelines) :i15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical chall!!e In the environment) and :i15060(c)(3) (the activity is not a project as det'ined in Section 15378) because it has no potential for resultll1g In physical change to the environment, directly or indirectly, it prevents changes in the etlVlronment pendIng the completlOn of the contemplated Municipal Code review. 14-97 SECTION 4. The City Manager or his designee shall: (1) review and (('Ibider options for the regLllation of medical marijuana dispensaries in the City, InclLlding. bLlt not limited to the development of appropriate rules and regulations governing the location and operation of such establishments in the City; (2) meet with medical patients. advocJ.tes. IJ.w enforcement representatives, J.nd other Interested parties; and (3) shJ.ll report back to Council describing the measLlres which the City shoLlld take to J.ddress the conditions which led to the J.doption of this ordlnJ.nce with the City Council ten (10) days prior to the expiration of this 1l1tCrlm ordinance. or any extension thereof SECTION 5. This il1tenm ordinance IS extended pLlrsuant to Section 65858 01' the California Government Code. SECTION 6. The City COLlncil declares this Ordmance is necessary as an urgency measure to preserve and address existing and immediate threats to the public health, safety. and well'are. Thus urgency Ordinance is adopted pursuant to Section 65858 of the C"llfomia Government Code. SECTION 7: Effective Date. Tim Ordinance is hereby declared to be an urgency measLlre pursuant to Government Code section 36937 and City Charter secllon 311(d). and shall tdke entct immediately L1pon its adoptlon by not less than a four-fit1hs (4/5) vote of the City COllnct! and shall extelld the CUlTent 45 day moratorium by 10 months and 15 days pursuant to Go\ell1ment Code section 65858. The City Clerk shall certify passage and adoption of thiS Ordinance by not less than a fOLlr-flfths (4/5) vote of the City Council. and shall make a minute of the passage and adoption ll1 the records of the proceedings of the City Counci! at which this Ordinance was passed and adopted. SECTION R. Expiration. This moratorium shall be of no further force or entet upon the e~I"ralion of ten months and t,fteen days from the date of expiration of the 45 day moratorium 'lck.ll'ted.luly 21. 2009. unless extended In accordance with Govell1ment Code Section 65858. SECTION 9. Severabilitv. If any section. sentence, clause or phrase of this Ordinance IS for any reason held to he invalid or unconstitutIOnal by a decision of any court of competent jurisdiction. sLlch deCision shall not affect the validity of the remail1lng portions of thiS Ordinance. The City Council herehy declares that it would h:ne passed this ordinance and adopted thiS Ordinance and each sectlon, scntence. clause or phrase thereof, irrespective of the fact that anyone or more sectlons. subsections. sentences, clauses or phrases be declared invalid or unconstitutional. Presented by Approved as to form by j ~ /7F .-r;;L ~----~-...n --- ---- Bart C. Miesfeld City Attorney -~ fXA ~n... ~ _ __~_3 ____________ Ch'lllce C Hawkins Deputy (ity Attorney 14-98 CITY COUNCIL AGENDA STATEMENT ~. ,'-' :<, ~(f.c.. C1TYOF ....~ (HULA VISTA September 1,2009 Item /5 ITEM TITLE: CONSIDERATION OF MATTERS REGARDING AN INITIATIVE PETITION ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" SUBMITTED BY: Donna Norris, City Clerk Dn SUMMARY On July 13, 2009, the City Clerk accepted an initiative petition from the proponents of a measure that seeks an amendment to the Chula Vista Municipal Code that would mandate that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. The petition contained the number of valid signatures sufficient to place the proposed measure on the ballot. Elections Code Sections 9114 and 9211 require the City Clerk to certify the results of the examination to the City Council. Further, Elections Code section 9215 requires the City Council to take action on the initiative petition. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed actIvIty for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity of calling and giving notice of a General Municipal Election for electing a Mayor, two members of the City Council, and a City Attorney is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; further, that the activity of placing a measure for an amendment to the Chula Vista Municipal Code on the ballot to be considered by the electorate at that election is not a "Project" as defined under Section 15378(b)(3) of the State CEQA Guidelines because it is the submittal of a proposal to a vote of the people that is not City sponsored; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the actions proposed are not subject to CEQA. RECOMMENDA nON Adopt Resolutions (A) and (B) set forth below, and take action on item (C) as desired. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE CERTIFICATiON OF SUFFICIENCY OF SIGNATURES FOR THE INITIATIVE PETITION ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" 15-1 September 1, 2009 Item I :;;- Page 2 of 5 B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRlATING NeCESSARY FUNDS FOR THE CERTIFICATION OF SUFFICIENCY OF SIGNATURES BY THE COUNTY REGISTRAR OF VOTERS ON THE INITIATIVE PETITION ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" (4/5THS VOTE REQUIRED) C. CONSIDERATION OF ACTION ON AN INITIATIVE PETITION, AS REQUIRED BY ELECTIONS CODE SECTION 9215, SPECIFIC ALL Y TAKING ONE OF THE FOLLOWING ACTIONS: (1) Adopt the following ordimmce: Or: (2) A. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING THE CHULA VISTA MUNICIP.i\L CODE BY ADDING CHAPTER 2.59, ENTITLED "FAIR AND OPEN COMPETITION IN CONTRACTING," MANDATING THAT THE CITY OR REDEVELOPMENT AGENCY NOT FUND OR CONTRACT FOR PUBLIC WORKS PROJECTS WHERE THERE IS A REQUIREMENT TO USE ONLY UNION EMPLOYEES Adopt the following resolutions, and consider whether a member or members of the Council will submit an argument to the City Clerk against the measure (Cal. Elec. Code S 9282): RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CALLING AND GIVING NOTICE OF A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, JUNE 8, 2010, FOR THE PURPOSE OF ELECTING A MAYOR, TWO MEMBERS OF THE CITY COUNCIL; AND A CITY ATTORNEY, AND PLACING AN INITIATIVE MEASURE ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" ON THE BALLOT TO BE CONSIDERED BY THE ELECTORATE AT THAT ELECTION; CONSOLIDATING THE ELECTION WITH THE STATEWIDE ELECTION; At~D REQUESTING THE BOARD OF SUPERVISORS OF THE COUNTY OF SAN DIEGO TO PERMIT THE REGISTRAR OF VOTERS TO CONDUCT THE ELECTION B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRlATING NECESSARY FUNDS TO PLACE THE INITIATIVE MEASURE ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINAi'\!CE" ON THE BALLOT AT THE GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, JUI".,fE 8, 2010 (4/5TH VOTEOREQUIRED) 15-2 ,- September 1, 2009 Item ,:::> Page 3 of 5 Or: (3) Refer the initiative measure to any City agency or agencies for a report pursuant to Elections Code section 9212, to be returned to Council within 30 days, on any or all of the following: 1. Its fiscal impact. 2. Its effect on the internal consistency of the City's general and specific plans, including the housing element, the consistency between planning and zoning, and the limitations on City actions under Section 65008 of the Government Code and Chapters 4.2 (commencing with Section 65913) and 4.3 (commencing with Section 69515) of Division 1 of Title 7 of the Government Code. 3. Its effect on the use of land, the impact on the availability and location of housing, and the ability of the City to meet its regional housing needs. 4. Its impact on funding for infrastructure of all types, including, but not limited to, transportation, schools, parks, and open space. The report may also discuss whether the measure would be likely to result in increased infrastructure costs or savings, including the costs of infrastructure maintenance, to current residents and businesses. 5. Its impact on the community's ability to attract and retain business and employment. 6. Its impact on the uses of vacant parcels ofland. 7. Its impact on agricultural lands, open space, traffic congestion, existing business districts, and developed areas designated for revitalization. 8. Any other matters the legislative body requests to be in the report. If Option C(3) is chosen, at the time the report is presented to the Council, it shall either adopt the ordinance within ten days or order an election submitting the ordinance to the voters at the next regular municipal election - June 8, 2010. BOARDS/COMMISSION RECOMMENDATION Not Applicable. 15-3 September 1, 2009 Item J S Page 4 ofj DISCUSSION An initiative petition entitled, "Fair and Open Competition in Contracting Ordinance" (Exhibit A to the resolution accepting certification) was accepted for filing by the City Clerk on July 13,2009. The petition was forwarded to the San Diego County Registrar of Voters, and the petition signatures were validated up to the required number of 10,399 signatures (ten percent of the voters of the City, in accordance with Elections Code Section 92 I 5). A copy of the certification by the Registrar of Voters (Exhibit A to the resolution accepting certification) was received August 12, 2009, and the proponents of the initiative were notified. Elections Code section I 405(b) requires the Council, if it chooses to submit the ordinance without alteration to the voters, to do so "at the jurisdiction's next regular election occurring not less than 88 days after the date of the order of election." ChuIa Vista's next regular election is set by Chula Vista Charter section 900, which provides that the General Municipal Elections shall be held in the City of Chula Vista on the same date in each election year as the California State primary elections, which is June 8, 2010. Once the resolution accepting the certification is adopted, the Council. must take one of the following actions, set forth in Elections Code section 9215: Adopt the ordinance, without alteration, at the regular meeting at which the certification of the petition is presented, or within 10 days after it is presented; or submit the ordinance, without alteration, to the voters at the next regular municipal election; or order a report pursuant to Elections Code Section 9212 (as outlined above) at the regular meeting at which the certification of the petition is presented. The report must be returned within 30 days; and at that time, the Council must either adopt the ordinance within ten days or order an election to be held at the next regular municipal election - June 8, 2010. Pursuant to Elections Code Sections 9282 and 9283, if the Council chooses to submit this measure to the voters, the proponents may file a written argument in favor of the measure, and the legislative body may submit an argument against it. Arguments may not exceed 300 words in length. Arguments must be accompanied by the printed name(s) and signature(s) of the author(s), or if submitted on behalfofan organization, the name of the organization and the printed name and signature of at least one of its principal officers who is the author of the argument. No more than five signatures may appear with any argument submitted. Arguments in favor or against this measure will be due to the City Clerk by March 24, 2010. Pursuant to a resolution previously adopted by the Council allowing rebuttal arguments, rebuttal arguments will be allowed in accordance with Elections Code section 9285. Rebuttal arguments may not exceed 250 words. The deadline for rebuttal arguments will be April 2, 2010 in the City Clerk's office. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and, consequently, the 500-foot rule found in California Code of Regulations Section 18704.2(a)(l) is not applicable to this decision. FISCAL IMPACT The City Clerk has budgeted $280,000 for the June 8, 2010 election. It is anticipated that this will be sufficient to cover the cost for the election of a Mayor, two Councilmembers, and a City Attorney. 15-4 - September 1, 2009 [tem~ Page5of5 The cost to verify the signatures on the petition is estimated to be $21,000. The cost to place a measure on the June 8, 20 I 0 ballot is estimated to be $93,000. It is therefore requested that $21,000 be appropriated to the City Clerk's Election Supplies and Services budget; and if the resolution calling the election and placing the proposed measure on the June 8, 2010 ballot is adopted, it is requested that an additional appropriation of $93,000 be made to the City Clerk's Election Supplies and Services budget. There are no ongoing costs associated with certifying the sufficiency of a petition, calling the election, or placing the proposed measure on the ballot. ATTACII1\1ENTS Resolution accepting certification of sufficiency of signatures for the initiative petition, and Exhibit "A" thereto (certification and proposed initiative measure) Resolution appropriating funds for the certification of sufficiency of signatures Ordinance Amending the Chula Vista Municipal Code to add Chapter 2.59, Mandating that the City or Redevelopment Agency Not Fund or Contract for Public Works Projects Where There is a Requirement to Use Only Union Employees Resolution calling and giving notice of the June 8, 2010 General Municipal Election, and placing the initiative measure on that ballot Resolution appropriating funds for placement of the initiative measure on the June 8, 20 1 0 ballot. Prepared by: Donna Norris, City Clerk 15-5 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE CERTIFICATION OF SUFFICIENCY Of SIGNATURES FOR THE INITIATIVE PETITION ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" WHEREAS, an initiative petJtJon entitled, "fair and Open Competition in Contracting Ordinance" was accepted for filing by the City Clerk on July 13, 2009; and WHEREAS, pursuant to California Elections Code Section 9215, the required number of signatures was 10,399, which was ten percent of the 103,985 voters in the City of Chula Vista as officially reported by the County Registrar of Voters to the Secretary of State on March 23, 2009; and \VHEREAS, the City of Chula Vista received a certificate from the County of San Diego Registrar of Voters, attached to the proposed initiative measure presented herewith as Exhibit "A" hereto, certifying the results of the Registrar's examination of the number of signatures and verification of the signatures affixed ~to the petition. NOW, THEREFORE, BE IT RESOLVED THAT the City Council of the City of Chula Vista does hereby accept the certification of sufficiency of an initiative petition entitled, "Fair and Open Competition in Contracting Ordinance." Presented by: Approved as to form by: Donna R. Norris City Clerk 15-6 EXHIBIT A DEBORAH SEILER ~egistrar of Voters QLountll of ~an ~i2BD REGISTRAR OF VOTERS 52qi Ruffin Road, Suite!, San Die!;o, California 92123-1693 Office: Fax: TOO: Tall Free: (858) 56S-5800 (858) 694-29S5 (858) 694-3441 (8CO) 696-0136 MICHAEL VU Assistant Registrar August 12,2009 Donna Norris, City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910-2631 Re: An Initiative to Amend the Chula Vista Municipal Code adding Chapter 2.59, entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for pubhc works projects wnere there is a requirement to use only union employees. As directed by your office, the Registrar of Voters conducted a verification of up to 10,399 vahd signatures from the total of 15,910 signatures submitted. Results of the verification process are as follows: e Date petition was received in OUT office ........... ..............u........July 13, 2009 . Number of sections submitted.................................................................1,030. . Number of signatures submitted ............................... .......... 15,910 <I Number of signatures verified............................................................... 14,181 lit Number of signatures found NOT sufficient ................ ..........__...... ......3,782 (includes 1,254 duplicates) 3 Number of signatures found sufficient......... ........................................ 10,399 If you need further assistance please call Rosemarie Ganzon at (858) 694-3443. S2;5E2 S -t-< ~,[d/C -<~ :::0 A. pQ E [11 ,.....,., 0 ~C') on DEBO?..A.H SEILER .::;; - [11 :::<c: ..... < Registrar of Voters "".- 0-;' a [T1 -n< - 0 ::::!3,V; (")~ - iT; :> :::. 15-7 Initiative Measure to be Submitted Directly to the Voters The city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure: Title: An initiative to amend the Chula Vista 1VIunicipal Code adding Chapter 2.59, entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. Summary: This measure proposes to amend by ordinance the Chula Vista lVIunicipal Code to add a chapter re- garding contracting on public works projects. The stated purpose and intent of the measure is to establish crite- ria that will ensure that there is fair and open competition for public works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union, have a fair and equal opportunity to work on public works projects. The measure involves contracts for construction, maintenance, repair, improvement or replacement of public works projects, defined as all construction projects paid for, in whole or in part, by funds of the City or Redevel- opment Agency, including, but not limited to, any building, road, street, park, playground, water system, irriga- tion system, sewer, storm water conveyance system, reclamation project, redevelopment project, or other public facility. "Contracting party" is defined as an owner, developer, contractor, subcontractor, or material supplier, involved in a public works project. The measure would prohibit the City or Redevelopment Agency from mandating that a .contracting party enter into an agrecment with a labor organization as a condition of award of the contract, or from funding such a con- tract.The proposal would add language to the Municipal Code, stating that the City shall not fund, in whole or in part, or entcr into, any contract, or impose a bid specification, contract prerequisite, or contract term, that would require a contracting party involved in a public works project to (1) execute, comply with or become a party to an agreement with a labor organization, (2) become a signatory to a collective bargaining agreement, (3) be required to make payments on behalf of employees to union benefit plans or other trust funds, (4) require its employees to be represented by a labor organization, or (5) encourage or discourage employees of a contracting party to have representation by a labor organization. The measure would not prohibit private parties from entering into individual collective bargaining relationships or engaging in la-wful union activities. Violations of the ordinance could be remedied through an application for injunctive relief in Superior Court filed by a citizen resident or taxpaying corporation. The measure provides that if approved by voters, it may be amended or repealed only by a maj~rity vote of the voters of the City. The City Attorney has prepared the above pursuant to Elections Code section 9203j the summary does not re- flect any legal analysis or opinion of the City Attorney concerning the proposed measure. PROPOSITION FOR FAIR AJ"1> OPEN COMPETITION ORDINA1'ICE The people of the City of Chula Vista hereby declare and ordain as follows: SECTION 1. Statement of the People's Intent (a)The People of the City of Chula Vista ("the People") desire fair and open competition for public works projects that are paid for, in whole or in part, with the funds of the City of Chula Vista or its Redevelopment Agency. (b )The People believe fair and open competition enables government to expand the pool of gualified candidates to perform work and, in mrn, to save public funds by lowering the cost of public works projects. The people likewise seek to remove limits or tmpediQents to the consideration of qualified parties to work on public projects. (c)The People believe fair and open competition creates more local jobs and improves Chula Vista's economy, and provides equal opportunity for all workers, both union and non-union. (d) The People believe public money should be spent only on public works projects that allow fair and open competi- tion. (e)The People intend the following Proposition to a:nend the Municipal Code ofllie City ofChula Vista, as follows: SECTION 2. Chula Vista lVlunicioal Code. Title 2. "Administration and Personnel" is amended bv addin2: Chanter 2.59. to read as follows: Chapter 2.59 Fair and Open Competition in Contracting 1.59.010 Purpose and Intent. The purpose and intent of this chapter is to establish criteria that will ensure:fair and open compe- tition for public works projects :funded in whole or in parr with public fimds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union. have a fair and equal opportunity to work on public works projects. 15-8 2.59.020 Definitions For purposes of this Chapter, the following definitions shall apply: "Acf' shallm= the National Labor Relations Act, Title 29 USC 99 151-169. "City" shall mean and include both the City ofCbu1a Vista and the Redevelopment Agency of the City ofCbu1a Vista. "Contracting party" shall mean and include an owner, developer, contractor, subcontractor or material supplier, involved in a public works project "Labor organization" shall bave the same mearrirtg ascnbed to it in Section 2 of the Act (29 USC 9152) "Public works projecf' shall mean and include all consnuction projects paid for, in whole or in par', by the funds of the City or the Redevelopment Agency, including but not limited to any building, road, street, park, playground, water system, irrigation system, sewer, storm water conveyance system, reclamation project, redevelopment project, or other public facility. 2.59.030 Requirements for Fair and Open Competition in Contractiillg In contracting for the construction, maintenance, repair, improvement or replacement of public works projects: (a) The City shall not fund, in whole or in part, or enter into, any contract which contains a requirement that a contracting party: (1) execute, comply with, or become a party to an agreement between a Labor organization, on the one hand, and the City, the Contracting Party, or any third party on the other, (2) become a signatory to a collective bargaining agreement; (3) he required to make payments on behalf of employees to union benefit plans or other trust funds; (4) require its employees to be represented by a Labor organization; or (5) encourage or discourage employees of a contracting party to have representation by a Labor organization. (b) The City shall not impose, as a bid specification, contract.prerequisite, contract term or otherwise, any requirement prohibited by subsection (a) of this Section. (c) Nothing in this Section shall be consnued as probJbiting private parties covered by this provision fiom entering into individual collective bargaining relationships, or otherwise as regulating or interfering 'Nith activity protected by applicable law, including bu not limited to the Act (d) Any person aggrieved or injured in any way by a violation of this Section shall be entitled to injunctive relief in the Superior Court of the State of California, County of San Diego, including by way of an action filed pursuant to California Code of Civil Procedure section 526a SECTION 3. Effective Date To the extentperrnitted by law, the provisions of this Chapter 2.59 shall become effective 10 days after the vote is declared by the Chula Vista City Council, as provided by California Elections Code 9 9217. Contracts awm:rled before this effective date and subcontracts awarded pursuant to such contracts, whenever awarded, shall not be governed by this ordinance. SECTION 4. Amendment; Repeal This ordinance may be amended or repealed only by a majority vote of the voters of the City of Cbula Vista.. SECTION 5. Severability If any Section oftbis Proposition, or any provision contained in this Proposition, is held by a court oflaw to be invalid, or is super- seded by a numerically superior vote as provided in Section 6 of this measure, the remaining Sections and provisions of this Proposition shall not be affected but shall remain in :full force and effect, and to that end the provisions of this Proposition are severable. SECTION 6. Conflicting Measures If any other measure, appearing on the same ballot as this measure, addresses the same subject matter in a way that conflicts with the treatment of the subject matter in this Proposition, and ifeach measure is approved by a majority vote of those voting on each measure, then as to the conflicting subject matter the measure with the highest affirmative vote shall prevail, and the measure with the lowest affirmative vote shall be deemed disapproved as to the conflicting subject matter. March 13, 2009 Notice of Intent to Circulate Petition Notice is hereby given by the persons whose names appear hereon of their intention to circulate the petition within the City of Chula Vista for the purpose of amending toe Cbu1. Vista Municipal Code to add the Fair and Open Competition Ordinance. A statement of the reasons of the proposed action as contemplated in the petition is as follows: In our opinion, the Fair and Open Competition Ordinance will encourage the maximum number of responsible and capable bidders for taxpayer-funded construction, thus ensuring fiscal responsibility for the city. In OUI opinion, fair and open competition in Chula Vista will create more job opportunities for local workers, decrease costs for taxpayers through increased efficiency, and e lish equality in contracting. ~ 9sf~ 2--fiu Lori Kneebone Larry Breitfelder Paid for by Chula yista Citizens for Jobs and Fair Competition, major funding by Associated Builders & Contractors PAC and Associated General Contractors PAC to promote fair competition (# 1303759) PMB 332 - 374 East H Street, Suite A Chula Vista, CA 91910. Printing this petition section in this formal, inducing but not limited to printing !he name and signature of a proponent, does not waive the right of any proponent or any other Fair and Open Competition Initiative supporter to challenge the legality of this1fC6nat gr this petition or for arlj! other related past, present, or future petition. Initiative .Measure to be Submitted Directly to the Voters The city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure: Title: An initiative to amend the Chula Vista Municipal Code a~ding Chapter 2.59, entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. Summary: This measure proposes to amend by ordinance the ChuJa Vista 1VlunicipaI Code to add a chapter re- garding contracting on public works projects. The stated purpose and intent of the measure is to establish crite- ria that will ensure that there is fair and open competition for public works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union, have a fair and equal opportunity to work on public works projects. The measure involves contracts for construction, maintenance, repair, improvement or replacement of public works projects, defined as all construction projects paid for, in whole or in part, by funds of the City or Redevel- opment Agency, including, but not limited to, any building, road, street, park, playground, water system, irriga- tion system, sewer, storm water conveyance. system, reclamation project, redevelopment project, or other public facility. "Contracting party" is defined as an owner, developer, contractor, subcontractor, or material supplier, involved in a public works project. The measure would prohibit the City or Redevelopment Agency from mandating that a contracting party enter into an agreement with a labor organization as a condition of award of the contract, or from funding such a con- tract.The proposal would add language to the Municipal Code, stating that the City shall not fund, in whole or in part, or enter into, any contract, or impose a bid specification, contract prerequisite, or contract term, that would require a contracting party'involved in a public works project to (1) execute, comply with or bccome a party to an agreement with a labor organization, (2) become a signatory to a collective bargaining agreement, (3) be required to make payments on behalf of employees to union benefit 'plans or other trust funds, (4) require its employees to be represented by a labor organization, or (5) encourage or discourage employees of a contracting party to have representation by a labor organization. The measure would not prohibit private parties from entering into individual collective bargaining relationships or engaging in lawful union activities. Violations of the ordinance could be remedied through an application for injunctive relief in Superior Court filed by a citizen resident or taxpaying corporation. The measure provides that if approved by voters, it may be amended or repealed only by a majority vo~e of the votcrs of the City. The City Attorney bas prepared the above pursuant to Elections Code section 9203; the summary does not re- flect any legal analysis or opinion of the City Attorney concerning the proposed measure. VOTER: NOTICE TO THE PUBLIC: THIS PETITION MAY BE CIRCULATED BY A PAID Please sign SIGNATURE GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK. petition 1 time This column far ONLY. All signers of this petition must be registered to vote in the City ofChula Vista. Clerk's Use Only Reg~:tion OJ SIGNATURE RESIDENCE AsR.gi"l=dToVor~: Addr= ONLY: PRINT CitylZ:p: YOllrName: Reg~:tioo[l] SIGNATURE RESlDBo/CE A"R::g;.t.r~dTo Vote: Address ONLY: PRINT City/Zip; YourN=: Reg~:uoo[]] 51GNATURE RESIDENCE As R.gisll:."'!:dTo VOle: Address ONLY: ?R!NT C:tylZp: Your Name: R~jS:tiool}] 51GNATURE R.ESIDENCE As Re~!l:r~d To Vall:: Addr= ONLY: 'R!NT CitylZip: YaurNam.: 1 5-1 0 Initiative Measure to be Submitted Directly to the Voters ~he city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure: Title: An initiative to amend the Chula Vista Municipal Code adding Chapter 2.59, entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. Summary: This measure proposes to a~end by ordinance the Chula Vista Municipal Code to add a chapter re- garding contracting on public works projects. The stated purpose and intent of the measure is to establish crite- ria that will ensure that there is fair and open competition for public works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union, have a fair and equal opportunity to work on public works projects. The measure involves contracts for construction, maintenance, repair, improvement or replacement of public works projects, defined as all construction projects paid for, in whole or in part, by funds of the City or Redevel- opment Agency, including, but not limited to, any building, road, street, park, playground, water system, irriga- tion system, sewer, storm water conveyance system, reclamation project, redevelopment project, or other public facility. "Contracting party" is defined as an owner, developer, contractor, subcontractor, or material supplier, involved in a public works project. The measure would prohibit the City or Redevelopment Agency from mandating that a contracting party enter into an agreement with a labor organization as a condition of award of the contract, or from funding such a con- tract.The proposal would add language to the Municipal Code, stating that the City shall not fund, in whole or in part, or enter into, any contract, or impose a bid specification, contract prerequisite, or contract term, that would require a contracting party involved in a public works project to (1) execute, comply with or become a party to an agreement with a labor organization, (2) become a signatory to a collective bargaining agreement, (3) be required to make payments on behalf of employees to union benefit plans or other trust funds, (4) require its employees to be represented by a labor organization, or (5) encourage or discourage employees of a contracting party to have representation by a labor organization. The measure would not prohibit private parties from entering into individual coUective bargaining relationships or engaging in lawful union activities. Violations of the ordinance could be remedied through an applicatiou for injunctive relief in Superior Court filed by a citizen resident or taxpaying corporation. The measure provides that if approved by voters, it may be amended or repealed only by a majority vote of the voters ofthe City. The City Attorney has prepared the above pursuant to Elections Code section 9203j the summary does not re- flect any legal analysis or opinion of the City Attorney concerning the proposed measure. VOTER: Please sign petition 1 time ONLY. NOTICE TO THE PUBLIC: THIS PETITION MAY BE CIRCULATED BY A PAID I SIGNATURE. GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK. I All signers of this petition ill ust be registered to vote in the City of Chula Vista. This columnror I Clerk's Use Only I New OJ SlGNATURE RESIDENCE RegIstration J A"Regi"~cdToVoIli: AddrcuONLY, PRINT Cily/Zip: YOUf!'lamc: Reg~s~tion[]] SIGNATURE RESIDENCE A.R.l:llistercdToVo~: Adc=s ONLY: PRINT City/Zip: Your Name: New _ OJ SIGNATURE RESlDENCE Registration As Registered To Yore: Addles. ONLY; PRJNT City/Zip: Your Name: Re9%~atlon[]] SIGNATURE RESIDEl'ICE A3.R.sist=dToVoto: Address ONLY: PRlNT CitylZip: Your Name: 1 5-1 1 Initiative J\'Ieasure to be Submitted Directly to the Voters The city attorney has prepared the following title and summary of the chief purpose'and points of the proposed measure: Title: An initiative to amend the Chula Vista lVlunicipal Code adding Chapter 2.59, entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for public works projects where there is a requireme~t to use only union employees. Summary: This measure proposes to amend by ordinance the Chula Vista lVIunicipal Code to add a chapter re-. garding contracting on public works projects. The stated purpose and intent of the measure is to establish crite- ria that will ensure that there is fair and open competition for public works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union, have a fair and equal opportunity to work on public works projects. The measure involves contracts for construction, maintenance, repair, improvement or replacement of public works projects, dermed as all construction projects paid for, in whole or in part, by funds of the City or Redevel- opment Agency, including, but not limited to, any building, road, street, park, playground, water system, irriga- . tion system, sewer, storm water conveyance system, reclamation project, redevelopment p.foject, or other public facility. "Contncting party" is defined as an owner, developer, contractor, subcontractor, or material supplier, involved in a public works project. The measure would prohibit the City or Redevelopment Agency from mandating that a contracting party enter into an agreement with a labor organization as a condition of award of the contract, or from funding such a con- tract.The proposal would add language to the .iVlunicipal Code, stating that the City shall not fund, in whole or in part, or enter into, any contract, or impose a bid specification, contract prerequisite, or contract term, that would require a contracting party involved in a public works project to (1) execute, comply with or become a party to an agreement with a labor organization, (2) become a signatory to a collective bargaining agreement, (3) be required to make payments on behalf of employees to union benefit plans or othe~ trust funds, (4) require its employees to be represented by a labor organization, or (5) encourage or discourage employees of a contracting party to have representation by a labor organization. The measure would not prohibit private parties from entering into individual collective bargaining relationships or engaging in lawful union activities. Violations of the ordinance could be remedied through an application for injunctive relief in Superior Court filed by a citizen resident or taxpaying corporation. The measure provides that if approved by voters, it may be amended or repealed only by a majority vote of the voters of the City: The City Attorney has prepared the above pursuant to Elections Code section 9203; the summary does not re- flect any legal analysis or opinion of the City Attorney concerning the proposed measure. VOTER: Please sign petition.1 time ONLY. NOTICE TO THE PUBLIC: THIS PETITION MAY BE CIRCULATED BY A PAID I SIGNATURE GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK. I All signers of this petition must be registered to vote in the City ofChula Vista. This column for I Clerk's Use Only I Ne..v, [2J SIGNATURE RESIDENCE RegistnlUan AsRegi!lcrodTaVolc: Addr=; ONLY, PRINT CiryfZip: YourNamo:: Reg~s:tion [g SIGNATURE RESIDENCE As Regi.lcrcdTo Vote, Addrc:ss ONLY; PRINT CirylZlp: Your NalDC: Reg~:tiOn [] SIGNATURE RESIDENCE Al Registucd To VOle Addre... ONLY: PRL""F. CitylZip; Your Namc: New 11] SIGNATURE RESIDENCE Registration - AsRegisl""edToVoI.:. Addrcss ONLY, PRlN"r CIty/Zip: Your Name: 1 5-1 2 Initiative Measure to be Submitted Directly to the Voters The city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure: Title: An initiative to amend the Chula Vista .Municipal Code adding Chapter 2.59, entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. Summary: This measure proposes to amend by ordinance the Chula Vista Municipal Code to add a chapter re- garding contracting on public works projects. The stated purpose and intent of the measure is to establish crite- ria that will ensure that there is fair and open competition for public works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union, have a fair and equal opportunity to work on public works projects. The measure involves contracts for construction, maintenance, repair, improvement or replacement of public works projects, dermed as all construction projects paid for, in whole or in part, by funds of the City or Redevel- opment Agency, including, but not limited to, any building, road, street, park, playground, water system, irriga- tion system, sewer, storm water conveyance system, reclamation project, redevelopment project, or other public facility. "Contracting party" is defined as an owner, developer, contractor, subcontractor, or material supplier, involved in a public works project. The measure would prohibit the City or Redevelopment Agency from mandating that a contracting party enter into an agreement with a labor organization as a condition of award of the contract, or from funding such a con- tract.The proposal would add language to the Municipal Code, stating that the City shall not fund, in whole or in part, or enter into, any contract, or impose a bid specification, contract prerequisite, or contract term, that would require a contracting party involved in a public works project to (1) execute, comply with or become a party to an agreement with a labor organization, (2) become a signatory to a coUective bargaining agreement, (3) be required to make payments on behalf of employees to union benefit plans or other trust funds, (4) require its employees to be represented by a labor organization, or (5) encourage or discourage employees of a contracting party to have representation by a labor organization. The measure would not prohibit private parties from entering into individual collective bargaining relationships or engaging in lawful union activities. Violations of the ordinance could be remedied through an application for injunctive relief in Superior Court fIled by a citizen resident or taxpaying corporation. The measure provides that if approved by voters, it may be amended or repealed only by a majority vote of the voters of the City. The City Attorney has prepared the above pursuant to Elections Code section 9203; the summary does not re- flect any legal analysis or opinion of the City Attorney concerning the proposed measure. VOTER: Please sign petition 1 time ONLY. NOTICE TO THE PUBLIC: THIS PETITION MAY BE CIRCULATED BY A PAwl SIGNATURE GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK. All signers oUhis petition must be registered to vote in the City ofChula Vista. This column for I Clerk's Use Only I NEM !Ul SIGNAltJRE RESIDENCE RegTslratlon J AI R~gi.ler~d To Vole; AddressQNLY; PRINT CiLylZip: YourNam~: Reg~t1(m[1]" SIGNATURE RESIDE."iCE A3R.eglS~dToVoll:: Addn:Si1 ONLY: PRINT CltyfZip: YourNalIl~; Rag~:tJanl!2J SlGNATURE RESIDENCE As.Ro:g;,teredTo Velll: Addr= ONLY: PRINT CitylZip: YourNam~; Reg~:tianIT]] SIGNATURE RESIDENCE As R~g:i:lt~r<:d To Ve\<:; Addn:SilONLY; PlUNT CityfZ;p; YeUTNQm~; 15-1 3 Initiative :Measure to be Submitted Directly to the Voters The city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure: Title: An initiative to amend the Chub Vista IHunicipal Code adding Chapter 2.59, entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. Summary: This measure proposes to amend by ordinance the Chula Vista Municipal Code to add a chapter re- garding contracting on public works projects. The stated purpose and intent of the measure is to establish crite- ria that will ensure that there is fair and open competition for public works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both. union and non-union, have a fair and equal opportunity to work on public works projects. The measure involves contracts for construction, maintenance, repair, improvement or replacement of public works projects, defined as all construction projects paid for, in whole or in part, by funds of the City or Redevel- opment Agency, including, but not limited to, any building, road, street, park, playground, water system, irriga- tion system, sewer, storm water conveyance system, reclamation project, redevelopment project, or other public facility. "Contracting party" is defined as an owner, developer, contractor, subcontractor, or material supplier, involved in a public works project. The measure would prohibit the City or Redevelopment Agency from mandating that a contracting party enter into an agreement with a labor organization as a condition of award of the contract, or from funding such a con- tract.The proposal would add language to the "Municipal Code, stating that the City shall not fund, in whole or in part, or enter into, any contract, or impose a bid specification, contract prerequisite, or contract term, that would require a contracting party involved in a public works project to (1) execute, comply with or become a party to an agreement with a labor organization; (2) become a signatory to a collective bargaining agreement, (3) be required to make payments on behalI of employees to union benefit plans or other trust funds, (4) require its employees to be represented by a labor organization, or (5) encourage or discourage employees of a contracting party to have repr,esentation by a labor organization. The measure would not prohibit private parties from entering into individual collective bargaining relationships or engaging in lawful union activities. Violations of the ordinance could be remedied through an application for injunctive relief in Superior Court filed by a citizen resident or taxpaying corporation. The measure provides that if approved by voters, it may be amended or repealed only by a majority vote of the voters of the City. The City Attorney has prepared the above pursuant to Elections Code section 9203; the summary does not re- flect any legal analysis or opinion of the City Attorney concerning the proposed measure. YOTER: Please sign petition 1 time ONLY. NOTICE TO THE PUBLIC: THIS PETITION MAY BE CIRCULATED BY A PAID I SIGNATURE GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK. All signers of this petition must be registered to vote in the City ofChula Vista. This column for I Clerk's Use Only I Reg~:~Qn[2] SIGNA>"URE RESIDENCE A.Reg;'leredTo Ville; Ad<!r= ONLY: PRINT CilyiZip: Your Name: Reg~:tlonIT]] SIGNATURE RESIDENCE A'Regi.teredToVo!l:: Ad<!r= ONLY: PRINT CitylZip: Your:-.iame: Reg~~~tion[2j SIGNATURE RESIDENCE AsReg;steredToVolo: Addre",ONLY: PRINT City/ZIp: Your Name: New @I SIGNATUR~ RESIOE..".CE I Registration A. Rogi.sterodTo Voto; Address ONLY: PRrN"r CitylZip: I YourNa:mo: 1 5-14 Initiative LVleasure to be Submitted Directly to the Voters The city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure: Title: An initiative to amend the Chula Vista Municipal Code adding Chapter 2.59, entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. I I ,I Summary: This measure proposes to amend by ordinance the Chula Vista Municipal Code to add a chapter re- garding con~acting on public works projects. The stated purpose and intent of the measure is to establish crite- ria that will ensure that there is fair and open competition for pubJic works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union, have a fair and equal opportunity to work on public works projects. The measure involves contracts for construction, maintenance, repair, improvement or replacement of public works projects, defined as all construction projects paid for, in whole or in part, by funds of the City or Redevel- opment Agency, including, but not limited to, any building, road, street, park, playground, water system, irriga- tion system, sewer, storm water conveyance system, reclamation project, redevelopment project, or other public facility. "Contracting party" is dermed as an owner, developer, contractor, subcontractor, or material supplier, involved in a public works project. The measure would prohibit the City or Redevelopment Agency from mandating that a contracting party enter into an agreement with a labor organization as a condition of award of the contract, or from funding such a con- tract.The proposal would add language to the Municipal Code, stating that the City shall not fund, in whole or in part, or enter into, any contract, or impose a bid specification, contract prerequisite, or contract term, that would require a contracting. party involved in a public works project to (1) execute, comply with or become a party to an agreement with a labor organization, (2) become a signatory to a collective bargaining agreement, (3) be required to make payments on behalf of employees to union benefit plans or other trust funds, (4) require its employees to be represented by a lahar organization, or (5) encourage or discourage employees of a contracting party to bave representation by a labor organization. The measure would not prohibit private parties from entering into individual collective bargaining relationships or engaging in lawful union activities. Violations of the ordinance could be remedied through an application for injunctive relief in Superior Court filed by a citizen resident or taxpaying corporation. The measure provides that if approved by voters, it may be amended or repealed only by a m'ajority vote of the voters of the City. The City Attorney has prepared the above pursuant to Elections Code section 9203; the summary does not re- flect any legal analysis or opinion of the City Attorney concerning the proposed measure. VOTER: NOTICE TO THE PUBLIC: THIS PETITION MAY BE CIRCULATED BY A PAID Please sign SIGNATURE GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK. petition 1 time All signers of this petition must be registered to vote in the City ofChula Vista. This column for ONLY. Clerk's Use Only Reg~~:1I0n [1] SIGNATURE RESIDENCE M R~gism~d To Vtlll:: Address ONLY: ,,<NT City/Zip, YourNo.me: DECLARATIONOFClRCULATOR (To be handwritten by the circulator after above signatures have been obtained) L , am registered to vote or I am eligible to register to vote in the State of California. (P"",""",.) 1 reside at the following address: {AddJ=City.S"....Z,p) T circulated this section of the petition and witnessed each of the appended signatures being written. Each signature on this petition section is, to the best of my information and belief, the genuine signature of the person whose name it purports to be. All signatures on this document were obtained between the dates of and (Mo"lh.. D."v....) Vd",,'o.>./wJ,t..,-) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Signed this _day of , at , California SIGNATURE: ---t-5"=-t-S-- tSi~ Full NlIlDe first NltI!le, Mlddl~ N:un. or lnitia~ Lasl Namo:} RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING NECESSARY FUNDS FOR THE CERTIFICATION OF SUFFICIENCY OF SIGNATURES BY THE COUNTY REGISTRAR OF VOTERS ON THE IN1TIATIVE PETITION ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINAL 'ICE" WHEREAS, the City Council has adopted or is anticipated to adopt a separate resolution accepting the certification of sufficiency of signatures for an initiative petition entitled, "fair and Open Competition in Contracting Ordinance;" and WHEREAS, pursuant to Elections Code sections 9211 and 9114, the elections official is required to examine the signatures on a petition and determine whether or not the petition is signed by the requisite number of voters; and WHEREAS, the Registrar of Voters performed the examination of signatures; and WHEREAS, the cost for the Registrar of Voters to verifY the signatures for this initiative petition is estimated to be $21,000. NOW, THEREFORE, BE IT RESOLVED THAT the amount of Twenty-one Thousand Dollars ($21,000.00) is hereby authorized to be appropriated to the City Clerk's Election Supplies and Services budget for payment to the Registrar of Voters for the costs to verify the signatures on the initiative petition, and the City Clerk is hereby authorized to disburse payment for such costs. Presented by: Approved as to form by: Donna R. Norris City Clerk 15-16 ORDINANCE NO. ORDINANCE OF THE CITY OF CHULA VISTA .AMENDING THE CHULA VISTA MUNICIPAL CODE TO ADD CHAPTER 2.59, ENTITLED "FAIR AND OPEN COMPETITION IN CONTRACTING," MAt'lDA TING THAT THE CITY OR REDEVELOPMENT AGENCY NOT FUND OR CONTRACT FOR PUBLIC WORKS PROJECTS WHERE THERE IS A REQUIREMENT TO USE ONLY UNION EMPLOYEES WHEREAS, an initiative petition entitled, "Fair and Open Competition in Contracting Ordinance" was accepted for filing by the City Clerk on July 13,2009; and WHEREAS, the County of San Diego Registrar of Voters examined the petition and certified that it contained a sufficient number of qualified signatures to cause the measure to be placed on the ballot of the June 8, 2010 General Municipal Election; and WHEREAS, pursuant to California Elections Code section 9215, the City Council must either adopt the ordinance without alteration or submit the ordinance, without alteration, to the voters; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity of calling and giving notice of a General Municipal Election for electing a Mayor, two members of the City Council, and a City Attorney is not a "Project" as. defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; further, that the activity of placing a measure for an amendment to the Chula Vista Municipal Code on the ballot to be considered by the electorate at that election is not a "Project" as defined under Section 15378(b)(3) of the State CEQA Guidelines because it is the submittal of a proposal to a vote of the people that is not City sponsored; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the actions proposed are not subject to CEQA; and WHEREAS, the City Council wishes to adopt the Ordinance Amending the Chula Vista Municipal Code to Add Chapter 2.59, Entitled "Fair and Open Competition in Contracting," mandating that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union employees. THE CITY COUNCIL OF THE CITY OF CHULA VISTA does ordain as follows: SECTION 1. Statement of the People's Intent (a)The People of the City of Chula Vista ("the People") desire fair and open competition for public works projects that are paid for, in whole or in part, with the funds of the City of Chula Vista or its Redevelopment Agency. . (b) The People believe fair and open competition enables government to expand the pool of qualified candidates to perform work and, in turn, to save public funds by lowering the cost of public works projects. The people likewise seek to remove lirnits or impediments to the consideration of qualified parties to work on public projects. 15-17 (c) The People believe fair and open competition creates more local jobs and improves Chula Vista's economy, and provides equal opportunity for all workers, both union and non-union. (d) The People believe public money should be spent only on public works projects that allow fair and open competition. (e) The People intend the following Proposition to amend the Municipal Code of the City of Chula Vista, as follows: SECTION 2. Chula Vista Municipal Code, Title 2. "Administration and Personnel" is amended bv adding Chapter 2.59. to read as follows: I Chapter 2.59 Fair and Open Competition in Contracting 2.59.010 Purpose and Intent The purpose and intent of this chapter is to establish criteria that will ensure fair and open competition for public works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union, have a fair and equal opportunity to work on public works projects. 2.59.020 Definitions For purposes of this Chapter, the following definitions shall apply: "Act" shall mean the National Labor Relations Act, Title 29 USC SS 151 - 169. "City" shall mean and include both the City of Chula Vista and the Redevelopment Agency of the City of Chula Vista. "Contracting party" shall mean and include an owner, developer, contractor, subcontractor or material supplier, involved in a public works project. "Labor organization" shall have the same meaning ascribed to it in Section 2 of the Act (29 USC 9152) "Public works project" shall mean and include all construction projects paid for, in whole or in part, by the funds of the City or the Redevelopment Agency, including but not limited to any building, road, street, park, playground, water system, irrigation system, sewer, storm water conveyance system, reclamation project, redevelopment project, or other public facility. 2.59.030 Requirements for Fair and Open Competition in Contracting In contracting for the construction, maintenance, repair, improvement or replacement of public works projects: (a) The City shall not fund, in whole or in part, or enter into, any contract which contains a requirement that a contracting party: (1) execute, comply with, or become a party to an agreement between a Labor organization, on the one hand, and the City, the Contracting Party, or any third party on the other; (2) become a signatory to a collective bargaining agreement; (3) be required to make payments on behalf of employees to union benefit plans or other trust funds; (4) require its employees to be represented by a Labor organization; or (5) encourage or discourage employees of a contracting party to have representation by a Labor organization. 15-18 (b) The City shall not impose, as a bid specification, contract prereqUISIte, contract term or otherwise, any requirement prohibited by subsection (a) of this Section. (c) Nothing in this Section shall be construed as prohibiting private parties covered by this provision from entering into individual collective bargaining relationships, or otherwise as regulating or interfering with activity protected by applicable law, including bu[t] not limited to the Act. (d) Any person aggrieved or injured in any way by a violation of this Section shall be entitled to injunctive relief in the Superior Court of the State of California, County of San Diego, including by way of an action filed pursuant to California Code of Civil Procedure section 526a. SECTION 3. Effective Date To the extent permitted by law, the provisions of this Chapter 2.59 shall become effective 10 days after the vote is declared by the Chula Vista City Council, as provided by California Elections Code S 9217. Contracts awarded before this effective date and subcontracts awarded pursuant to such contracts, whenever awarded, shall not be governed by this ordinance. SECTION 4. Amendment; Repeal This ordinance Ii:Jay be amended or repealed only by a majority vote of the voters of the City of Chula Vista. SECTION 5. Severability If any Section of this Proposition, or any provision contained in this Proposition, is held by a court of law to be invalid, or is superseded by a numerically superior vote as provided in Section 6 of this measure, the remaining Sections and provisions of this Proposition shall not be affected but shall remain in full force and effect, and to that end the provisions of this Proposition are severable. SECTION 6. Conflicting Measures If any other measure, appearing on the same ballot as this measure, addresses the same subject matter in a way that conflicts with the treatment of the subj ect matter in this Proposition, and if each measure is approved by a majority vote of those voting on each measure, then as to the conflicting subject matter the measure with the highest affirmative vote shall prevail, and the measure with the lowest affirmative vote shall be deemed disapproved as to the conflicting subject matter. Presented by: Approved as to form by: Donna R. Norris City Clerk 15-19 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CALLING AND GIVING NOTICE OF A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, JUNE 8, 2010, FOR THE PURPOSE OF ELECTING A MAYOR, TWO MEMBERS OF THE CITY COUNCIL; AND A CITY ATTORl'-iEY, AND PLACING AN INITIATIVE MEASURE ENTITLED, "FAIR AND OPEN COMPETITION IN CONTRACTING ORDINANCE" ON THE BALLOT TO BE CONSIDERED BY THE ELECTORATE AT THAT ELECTION; CONSOLIDATING THE ELECTION WITH THE STATEWIDE ELECTION; AND REQUESTING THE BOARD OF SUPERVISORS OF THE COUNTY OF SAi'\f DIEGO TO PERMIT THE REGISTRAR OF VOTERS TO CONDUCT THE ELECTION WHEREAS, in accordance with the provisions of the Chula Vista Charter and State law, a General Municipal Election shall be held on June 8, 2010 for the purpose of electing a Mayor, two Members of the City Council to fill Seats 1 and 2, and a City Attorney, for the full term offour years, commencing in December 2010; and WHEREAS, a petition entitled, "Fair and Open Competition in Contracting" was accepted for filing by the City Clerk on July 13, 2009; and WHEREAS, pursuant to California Elections Code Section 9215, the required number of signatures to submit this measure to the voters was 10,399, which was ten percent of the 103,985 voters in the City of Chula Vista as officially reported by the County Registrar of Voters to the Secretary of State on March 23, 2009; and WHEREAS, the County of San Diego Registrar of Voters has examined the petition and certified that it contains a sufficient number of qualified signatures to cause the measure to be placed on the ballot of the June 8, 2010 General Municipal Election; and WHEREAS, pursuant to California Elections Code sections 9215 and 1405(b), the City Council must either adopt the ordinance without alteration or submit the ordinance, without alteration, to the voters at the next regular municipal election occurring not less than 88 days after the order of election; and WHEREAS, Chula Vista's next regular municipal election is set by Chula Vista Charter section 900, which provides that General Municipal Elections shall be held in the City of Chula Vista on the same date in each election year as the California State primary elections, which is June 8, 2010; and 15-20 WHEREAS, Section 439.1 of the Administrative Code of the County of San Diego authorizes the Registrar of Voters of the County of San Diego to render specified services relating to the conduct of an election to any city or district which has by resolution requested the Board of Supervisors to permit the Registrar to render the services, subject to requirements set forth in that section; and WHEREAS, Elections Code Section 10403 requires the City Council to adopt a resolution requesting the Board of Supervisors to consolidate Chula Vista's election with the statewide general election and to permit the Registrar of Voters to perform certain services in conjunction with the City's election; and WHEREAS, sufficient funding is anticipated to be allocated as separate actions for the payment of costs relating to the certification of the signatures on the petition and the placement of the measure on the ballot; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has detemiined that the activity of calling and giving notice of a General Municipal Election for electing a Mayor, two (2) members of the City Council, and a City Attorney is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; further, that the activity of placing a measure for an amendment to the Chula Vista Municipal Code on the ballot to be considered by the electorate at that election is not a "Project" as defined under Section 1 5378(b)(3) of the State CEQA Guidelines because it is the submittal ofa proposal to a vote of the people that is not City sponsored; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the aCtions proposed are not subject to CEQA. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER as follows: SECTION 1. All of the foregoing recitals are true and correct. SECTION 2. Pursuant to the requirements of the Chula Vista Charter and the laws of the State of California, there shall be and there is hereby called and ordered held in the City of Chula Vista, California, on Tuesday, June 8, 2010, a General Municipal Election of the qualified electors of the City for the purpose of electing a Mayor, two Members of the City Council to fill Seats 1 and 2, and a City Attorney, for the full term of four years, commencing December 2010. 15-21 SECTION 3. The City Council, pursuant to its right and authority as established in California Elections Code sections 9215(b) and 1405(b), does hereby order submitted to the voters at the election specified above the following question: PROPOSITION YES Shall the Chula Vista Municipal Code be amended to mandate that the City or Redevelopment Agency not fund or contract for public works projects where there is a requirement to use only union NO emoloyees? SECTION 4. Should the question be approved by the requisite vote, the measure attached hereto as Exhibit "A" and incorporated by this reference shall be enacted. SECTION 5. The City Council hereby acknowledges its authority pursuant to California Elections Code section 9282 to submit a written argument not to exceed 300 words against the proposed measure, and that of the proponents of the measure to file a written argument not to exceed 300 words in favor of the proposed measure. Pursuant to a resolution previously adopted by the Council allowing rebuttal arguments, rebuttal arguments will be allowed in accordance with Elections Code section 9285. Rebuttal arguments may not exceed 250 words. Each argument must be submitted to the City Clerk, and may be changed until and including the date fixed by the City Clerk for submission of the arguments, after which no arguments for or against the proposed measure may be submitted to the City Clerk. Printed copies of each properly authorized and filed argument shall be enclosed with each sample ballot in accordance with California Elections Code section 9282. SECTION 6. The City Attorney is hereby directed to prepare an impartial analysis of the measure, which shall be filed by the date set by the City Clerk for the filing of arguments. SECTION 7. The General Municipal Election for the purposes of electing a Mayor, two (2) Members of the City Council, and a City Attorney, and submitting the proposed measure on the amendment of the Chula Vista Municipal Code shall be consolidated with the Statewide Direct Primary Election held on the same day in accordance with California Elections Code section 10401. SECTION 8. Pursuant to Elections Code section 10403, the Board of Supervisors of the County of San Diego is hereby requested to permit the Registrar of V oters to perform and render all services and proceedings, and to procure and furnish any and all official ballots, notices, printed matter and all supplies and equipment and paraphernalia incidental to and connected with the conduct of the subject election of the City of Chula Vista, with the cooperation and assistance of the City Clerk of Chula Vista, in order to properly and lawfully conduct such election. SECTION 9. The Board of Supervisors of the County of San Diego is hereby requested to consolidate this election with the statewide election to be held on the same day, in the same territory. Pursuant to Section 10411 and Section 10418 of the Elections Code, (a) the election shall be held in all respects as if there were only one election; (b) 15-22 only one form of ballot shall be used; and (c) the Registrar of Voters of the County of San Diego shall canvass the returns of the subject election as part of the canvass of the returns of the election consolidated hereby. SECTION 10. Pursuant to Section 10410 and Section 10418 of the Elections Code within the territories affected by this consolidation, the election precincts, polling places, voting booths and polling hours shall, in every case, be the same, and there shall be only one set of election officers in each of the precincts. SECTION 11. The County of San Diego shall be reimbursed in full for the services performed by the Registrar of Voters for the City of Chula Vista upon presentation of a bill therefor, and this City agrees to indemnify and save free and harmless the County, its officers, agents and employees from expense or liability, including reasonable attorneys' fees, as a result of an election contest arising after conduct of this election. SECTION 12. The City Clerk is hereby directed to forthwith file a certified copy of this resolution with the Board of Supervisors and the Registrar of Voters of the County of San Diego and to issue instructions to the Registrar of Voters to take any and all steps necessary for the holding of the election. SECTION 13. The polls of said election shall be open at seven o'clock a.m. of the day of said election and shall remain open continuously from that time until eight o'clock p.m. of the same day when said polls shall be closed, except as provided in Section 14401 of the Elections Code of the State of California. SECTION 14. The ballots to be used at said election shall be, both as to form and matter contained therein, such as may be required by law to be used thereat. SECTION 15. In all particulars not recited in this resolution, said election shall be held and conducted as provided by law for holding municipal elections in this City. SECTION 16. Notice of the time and place of holding this election is hereby given and the City Clerk is hereby authorized, instructed and directed to give such further or additional notice of said election in time, form and manner as required by law. SECTION 17. The City Clerk shall certify to the passage and adoption of this resolution and file it with the City's original resolutions. Presented by: Approved as to form by: Donna R. Norris City Clerk 15-23 EXHIBIT A FAIR Ai\fD OPEN COMPETITION ORDINANCE The people of the City ofChula Vista hereby declare and ordain as follows: SECTION 1. Statement of the People's Intent (a)The People of the City of Chula Vista Cthe People") desire fair and open competition for public works projects that are paid for, in whole or in part, with the funds of the City of Chula Vista or its Redevelopment Agency. (b) The People believe fair and open competition enables government to expand the pool of qualified candidates to perform work and, in turn, to save public funds by lowering the cost of public works projects. The people likewise seek to remove limits" or impediments to the consideration of qualified panies to work on public projects. (c) The People believe fair and open competition creates more local jobs and improves Chula Vista's economy, and provides equal opportunity for all workers, both union and non-union. (d) The People believe public money should be spent only on public works projects that allow fair and open competition. (e) The People intend the following Proposition to amend the Municipal Code of the City of Chula Vista, as follows: SECTION 2. Chula Vista Municipal Code. Title 2, "Administration and Personnel" is amended bv adding Chapter 2.59. to read as follows: Chapter 2.59 Fair and Open Competition in Contracting 2.59.010 Purpose and Intent The purpose and intent of this chapter is to establish criteria that will ensure fair and open competition for public works projects funded in whole or in part with public funds; to aid in lowering the cost of public works projects; and to ensure that all workers, both union and non-union, have a fair and equal opportunity to work on public works projects. 2.59.020 Definitions For purposes of this Chapter, the following definitions shall apply: "Act" shall mean the National Labor Relations Act, Title 29 USC 99 151 - 169. "City" shall mean and include both the City of Chula Vista and the Redevelopment Agency of the City of Chula Vista. "Contracting party" shall mean and include an owner, developer, contractor, subcontractor or material supplier, involved in a public works project. "Labor organization" shall have the same meaning ascribed to it in Section 2 of the Act (29 USC 9152) "Public works project" shall mean and include all construction projects paid for, in whole or in part, by the funds of the City or the Redevelopment Agency, including but not limited to any building, road, street, park, playground, water system, irrigation system, sewer, storm" water conveyance system, reclamation project, redevelopment project, or other public facility. 15-24 I I I .1 2.59.030 Requirements for Fair and Open Competition in Contracting In contracting for the construction, maintenance, repair, improvement or replacement of public works projects: (a) The City shall not fund, in whole or in part, or enter into, any contract which contains a requirement that a contracting party: (I) execute, comply with, or become a party to an agreement between a Labor organization, on the one hand, and the City, the Contracting Party, or any third party on the other; (2) become a signatory to a collective bargaining agreement; (3) be required to make payments on behalf of employees to union benefit plans or other trust funds; (4) require its employees to be represented by a Labor organization; or (5) encourage or discourage employees of a contracting party to have representation by a Labor organization. (b) The City shall not impose, as a bid specification, contract prerequisite, contract term or otherwise, any requirement prohibited by subsection (a) of this Section. (c) Nothing in this Section shall be construed as prohibiting private parties covered by this provision from entering into individual collective bargaining relationships, or otherwise as regulating or interfering with activity protected by applicable law, including bu[t] not limited to the Act. (d) Any person aggrieved or injured in any way by a violation of this Section shall be entitled to injunctive relief in the Superior Court of the State of California, County of San Diego, including by way of an action filed pursuant to California Code of Civil Procedure section 526a. SECTION 3. Effective Date To the extent permitted by law, the provisions of this Chapter 2.59 shall become effective 10 days after the vote is declared by the Chula Vista City Council, as provided by California Elections Code S 9217. Contracts awarded before this effective date and subcontracts awarded pursuant to such contracts, whenever awarded, shall not be governed by this ordinance. SECTION 4. Amendment; Repeal This ordinance may be amended or repealed only by a majority vote of the voters of the City of Chula Vista. SECTION 5. Severability If any Section of this Proposition, or any provision contained in this Proposition, is held by a court of law to be invalid, or is superseded by a numerically superior vote as provided in Section 6 of this measure, the remaining Sections and provisions of this Proposition shall not be affected but shall remain in full force and effect, and to that end the provisions of this Proposition are severable. SECTION 6. Conflicting Measures If any other measure, appearing on the same ballot as this measure, addresses the same subject matter in a way that conflicts with the treatment of the subject matter in this Proposition, and if each measure is approved by a majority vote of those voting on each measure, then as to the conflicting subject matter the measure with the highest affirmative vote shall prevail, and the measure with the lowest affirmative vote shall be deemed disapproved as to the conflicting subject matter. 15-25 RESOLUTION NO. 2009- RESOLUTION OF THE CITY COlJNCIL OF THE CITY OF CHULA VISTA APPROPRIATING THE 'NECESSARY FUNDS TO PLACE THE fi\.TJTIATIVE MEASURE ENTITLED, "FAIR Ai~D OPEN COMPETITION IN CONTRACTING ORDINANCE" ON THE BALLOT AT THE GENERAL M1JNICIP AL ELECTION TO BE HELD ON TUESDA Y, JUNE 8, 2010 WHEREAS, the City Council has adopted or is anticipated to adopt a separate' resolution calling and ordering a General Municipal Election to be held Tuesday, June 8, 2010 for the purpose of electing a Mayor, two Members of the City Council, and a City Attorney, and submitting an initiative measure entitled, "Fair and Open Competition in Contracting" to the voters of the City, and consolidating the election with the Statewide Election to be held on the same date, requesting the County of San Diego Registrar of Voters to conduct the election, and authorizing the City Clerk to take all necessary actions to conduct the election; and WHEREAS, the City Clerk has budgeted $280,000 for the June 8, 2010 election, and it is anticipated that this will be sufficient to cover the cost for the election of a Mayor, two Members of the City Council, and a City Attorney; and WHEREAS, the Registrar of Voters has estimated the total cost for the placement of the initiative measure on the ballot for the General Municipal Election to be held on June 8, 20 I 0 to be $93,000.00. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY RESOLVE, DECLARE, DETERi\1INE, AND ORDER as follows: SECTION I. The amount of ninety-three thousand dollars ($93,000) is hereby authorized to be appropriated to the City Clerk's Election Supplies and Services budget; and the City Clerk is hereby authorized to disburse such amounts for payment of those costs. Presented by: Approved as to form by: Donna R. Norris City Clerk 15-26 MEMORANDUM TO: FROM: The Honorable Mayor and City Council James D. Sandoval, City Manager AUt July 7, 2009 U DATE: SUBJECT: Regional City Pension Standard Proposal I have attached the final San Diego City/County Managers Association proposal for a Regional City Pension Standard. The Association has been working on this proposal for several months now. This effort was undertaken due to the concerns that the current pension programs countywide are not financially sustainable and are becoming increasingly controversial. You will recall that all of our then existing employee labor groups (the mid- managers and professionals have since organized) either eliminated or deferred their contracted cost of living adjustments, saving the City over $6 million annually. These contracts cannot be reopened by the City until 2012. Like other managers in the county, I'm concerned by the significant increase in PERS costs, which will become the responsibility of member agencies beginning in fiscal year 2011/12. One way to address this is through pension reform. I plan on meeting with our labor groups to discuss the impact to the City of Chula Vista when the PERS increases kick in. We can then discuss options such as the City/County Managers Association's pension reform proposal, in an effort to either mitigate or at least minimize the financial hit to the City. The major cost for the City of Chula Vista, like all California cities, is personnel. Finding ways to control costs today may very well save City jobs and the important services they provide in the future. I will provide you with updates as we all become more informed and as events unfold. cc: Assistant City Manager Deputy City Manager Department Heads 16-1 TO: San Diego Division, League of California Cities FROM: City/County Management Association DATE: June 29,2009 SUBJECT: Proposal for Regional City Pension Standard Introduction In January 2009, the city managers in the San Diego City/County Managers Association (CCMA) began a study of the pension programs offered local government employees in California and the San Diego region. While all are in agreement that these pension programs have worked well to support career local government employees for decades, there is growing recognition that they are not financially sustainable and are increasingly politically controversial. To that end, the CCMA has committed to providing recommendations for a second tier pension offering that could be implemented by the great majority of cities in San Diego County. This pension offering would not affect existing city employees who have vested rights to the current pension program, but would affect new employees after a date certain and be both sustainable and defensible. BackQround For 70 years the State of California and local governments have offered a "defined benefit" retirement plan for employees. This system guarantees annual pension payments based on retirement age, years of service, and salary. Most cities in California are members of the Public Employees Retirement System (PERS). All cities in San Diego County, with the exception of the City of San Diego, are PERS members. The goal of the study is to provide full career employees with pension benefits that maintain their standard of living into retirement. The benefit level should be set to be fair and adequate, but fiscally sustainable for employers and taxpayers. Any proposal for such a regional pension standard must be based on sound actuarial work. While we recognize that the defined benefit plan has worked for decades and should be retained, it is clear that defined benefit pensions are increasingly rare in the private sector. The great majority of private employers offer "defined contribution" plans where the employer contribution is a fixed dollar amount and the benefits are based on contributions and investment earnings. These plans put the risk largely on the employee to amass and manage assets to ensure an adequate pension after retirement. Such 457 and 401 (k) plans have not performed well in recent years due to turmoil in the markets. Yet, there is 1 16-2 growing sentiment amongst the public and opinion leaders that State and local government workers should be forced into defined contribution plans. We feel this would be mistaken for several reasons. First and foremost, defined benefit plans have proven to be more efficient than defined contribution plans for delivering pension benefits. Defined benefit plans generally earn far more than defined contribution plans, because they are professionally managed. Defined benefit plans offer lower fees and cover disability retirements and death benefits that are not included in defined contribution plans. Further, defined benefit plans offer a protection for inflation and manage longevity risk better than defined contribution plans by pooling larger numbers of people. Moving from a defined benefit plan to a defined contribution plan entails large start-up costs and forces changes in asset allocations that will produce lower investment results in the defined benefit plan that remains for existing employees. Hence, it would likely cost the taxpayers more for many years to force future local government employees into a defined contribution plan. However, the defined benefits plans have become more expensive in recent years. In the late 1990's, when PERS was earning extraordinary returns on its portfolio, the California legislature enacted significant benefit enhancements for public employees in the PERS systems that were optional for participating local governments. Market conditions at that time led to "super funding" of local government pensions causing management and labor to seek increased benefits to stay competitive. It is now common for public safety officers to retire close to age 50 with almost a full salary under the 3% at 50 plan. These increased benefits have proven to be unsustainable and need to be rolled back to more appropriate pre 1999 levels. The costs for these defined benefit plans vary based on two factors: the benefit paid to retirees, and returns earned by investment managers. The pension funds are not immune to stock market declines, and. PERS has suffered staggering losses in its portfolio since mid 2008. While the market is showing some resiliency, member agencies will be called upon to pay significantly increased contributions to fund pensions for current employees and make up for the huge losses in '08-'09 over the next 30 years. This will put added pressure on cities at a time when municipal services are stressed to the limit. Local revenues are depressed at a time when PERS rates will be increasing. HdL, which audits sales tax for the majority of cities and counties in California, does not anticipate a return to 2005 sales tax levels until 2013 or later due to changes in consumer behavior and access to credit. Property tax revenues, long considered the most reliable for steady growth of all municipal revenues, are down in San Diego County this year and only meager improvement is expected in the coming years. The PERS policy adopted June 16, 2009, spreads the deep losses from FY 2008-09 over the next thirty years, beginning in 2010 and rising through 2013. The increased rates will catch cities just as they are beginning to crawl out of this tenacious global recession. As such, pension costs will soon escalate beyond our ability to manage them while the benefits exceed what taxpayers themselves 2 16-3 can receive and what is needed to attract qualified employees. The local government pension situation will become untenable. The CCMA working group has met on the subject seven times since January and involved public pension actuary John Bartel to assess the financial impacts of the proposal. Further, we held meetings with local labor representatives, the San Diego County Taxpayers Association and Califomia Foundation for Fiscal Responsibility. Findinqs Ideally, responsible and effective pension reform would be addressed at a Statewide level with consistent pension standards for all. Yet, we cannot wait for a Statewide solution due to the stalemate in Sacramento. Poorly conceived pension reform by initiative could lead to greater costs for taxpayers and harm local government's ability to attract and retain qualified employees. By acting as a region, no one city will be disadvantaged by pension reform. Therefore, the CCMA supports a modified level of retirement benefits for all new city employees in the San Diego region. The CCMA recommends that current employees pay for a portion of their pensions and that a new pension tier for those city employees hired after January 2010, with the following features: 1) Current employees shall participate in the funding of their pensions in all cities. This reform will generate immediate budgetary savings to cities to the extent that existing employees participate in paying for their own retirement. Savings could range from 1 - 9% of payroll annually. 2) Second Tier Retirement Proposal ~ Safety employees - 2% at 50; ~ Miscellaneous employees - 2% at 60; and ~ Average of highest three years. The second tier proposal will deliver savings over a much longer time period as it only affects new hires after January 2010. When the majority of employees are under the second tier, cities can expect to save approximately 2% of payroll per year. Within 30 years, annual savings of 5% of payroll can be expected. The second tier will also lower each city's volatility index (ratio of assets held for pension payments to payroll), which will help stabilize future rate increases. These changes can be negotiated and then legislated at the local level. Each city has a responsibility to meet and confer in good faith to reach agreement with its bargaining units. 3 16-4 The committee also recommends that San Diego cities seek legislative pension reform at the State level. These would include: ;.. Establishing a 90% benefit cap for miscellaneous employees and safety employees; ;.. Employer Paid Member Contribution (EPMC) prohibited as PERSable wages; ;.. Give employers flexibility to determine when part-time employees are entitled to pension benefits; ;.. Obtain flexibility from PERS to allow employees to move into a lower level tier in the case of two-tier plans if there is some advantage to the individual employee in doing so; ;.. Provide for reciprocal access to tier 1 benefits for employees who change jobs after January 2010; ;.. Establish additional reserve funding to reduce volatility; ;.. Retain full disability benefits for those who are injured and cannot work in any capacity, but restrict disability benefits for those who are able to work (in same or similar job) after work-related injury; and ~ Change CalPERS Board membership to achieve better employee/employer balance and greater public agency representation. The San Diego Division of the League of California Cities should advocate these changes to the greater League Board and to our State representatives. These reforms would provide adequate and sustainable pensions for long-term employees in San Diego County cities. Next Steps CCMA recommends communicating these ideas to -other regional manager groups in the hopes of obtaining wider support for pension reform. Los Angeles, Contra Costa, San Mateo, Sacramento, Marin, and Santa Clara area cities have indicated interest. The Orange County Area Managers Group received a presentation of these ideas on June 3 and immediately formed a committee to begin its own work. Also, several local water districts have met to discuss our thinking for pension reform. The City Managers Department of the League of California Cities has asked the regional approaches to pension reform be a topic of a panel discussion at the annual meeting next February. City Managers will discuss these recommendations with their city councils and seek direction to begin negotiating pension reform as labor agreements expire. In this way, sustainable and defensible pension plans will become the norm over time among San Diego County cities. 4 16-5 The City/County Managers Association includes Carlsbad, Chula Vista, Coronado, County of San Diego., Del Mar, EI Cajon, Encinitas, Escondida, Imperial Beach, La Mesa, Lemon Grove, National City, Oceanside, Poway, San Diego., San Marcos, Santee, Solana Beach, and Vista. .Note: The City of San Diego and County of San Diego have their own pension systems and have implemented second tiers. 5 16-6 OFFICE OF THE MA YOR Item: 17ft Meeting Date: 9/0l!09 ITEM TITLE: Discussion of Draft Ordinance Regarding Implementation of Proposition Q MayO~ SUBMITTED BY: BACKGROUND: In Novcmber 01'2008, the residents of the City of Chula Vista voted to amend the City Charter to make the Chula Vista City Attorney an elected officer of the City. In general, the Charter Amendment makes the following two major changes to the City Charter as it relates to the City Attorney: (1) it makes the City Attorney an elected officer of the City; and (2) it rccasts and expands the. City Attorney's role, powers and relationship with the City Council. Much of the Charter Amendment is self-executing. However, portions of the measure either authorize or require further implementation by the City Council. This draft Ordinance was prepared for the City Council's consideration, to address thc provisions of the measure that necessitate City Council action. . The intent of the draft Ordinance is to implement the measure and ensure a seamless transition to an elected City Attorney. RECOMMENDATION: That the City Council discuss and provide direction on the draft Ordinance. DISCUSSION: The Elected City Attorney Charter Amendment specifically provides that it "may be amcnded or repealed only by the voters at a City election." (Charter Amendment, Section 5.) Although the City cannot, without a vote of the people, seek to expand or restrict the measure's scope or seek to address issues already specifically addressed in the measure, the City may create a framework to implcment the purposes of the measure or adopt laws or rules that work in tandem with the measure. As discussed more fully below, seven (7) provisions in the measure require City Council action. Each of these provisions is discussed below. Fixing Compensation The measure provides that the "compensation of the elected City Attorney shall be set by the Council. . . ." The measure also establishes a floor for this compensation that is fixed by "the median compensation paid to the City Attorneys of the six California cities whose populations are closest to that of the City of Chula Vista, provided that three are higher and three are lower in population. . .." This provision requires implementation by the City Council to establish the minimum compensation based upon the formula in the measure. The measure does not specify what population data should be used by the City Council to dctermine the six cities to be used, how the compensation of the six city attorneys should be measured or what data should bc used, /74-/ [Ordinance No. Page No.2 how the compensation of the six city attorneys should be measured or what data should be used, or how to handle the potential that one or more of the six cities may use a contract city attorney. It is recommended that the Council adopt rules or policies to implement these provisions. The draft Ordinance seeks to address these issues. Dcclaration of Vacancy or Findin!! of Disabilitv The measure provides that the City Council shall declare the office of City Attorney vacant under certain conditions, including unexcused absences, or when a finding of disability is made by at least a two-thirds vote of the members of the Council after considering competent medical evidence. However, the measure does not specify the procedures for making those determinations. It is recommended that the City Council establish such procedures and the draft Ordinance seeks to do so. FilIin!! Vacancies The measure authorizes the City Council to fill City Attorney vacancies by appointment by majority vote of the members of the Council, as long as less than 24 months remains in the unexpired term. Any such appointee must meet the qualifications of the measure and the appointment must occur within 60 days of the vacancy. However, the measure does not specify the manner in which the Council must nominate and appoint such a replacement (i.e., by an open application, public process or solely by Council nomination and approval). It is recommended that the Council establish a process for such appointments. The draft Ordinance seeks to establish such a process. Boards, Commissions and A!!encies of the City The measure provides that the City Attorney shall advise all boards, commiSSIons and other agencies of the City on legal matters referred to him or her, and render written legal opinions when the same are rcquested in writing by the Mayor or a member of the Councilor the City Manager or any other officer, board or commission of the City. However, the measure does not address how and when the City's various boards, commissions or agencies may request a written legal opinion from the City Attorney. It is recommended that the City Council establish a procedure for such requests for a written legal opinions and the draft Ordinance seeks to do so. Approval or Ratification of Le!!al Proceedin!!s The measure provides that the City Attorney may commence legal proceedings subject to approval or ratification by the City Council. The measure does not specify how or when ratification must be obtained. It is recommended that the City Council establish a procedure for approving or ratifying legal proceedings and the draft Ordinance seeks to do so. Appointment of Special Counsel The measure provides that the Council "may" empower the City Attorney, at his or her request, to employ special legal counsel. It is recommended that the City Council establish a procedures making and approving such requests. The draft Ordinance seeks to establish these procedures. /7/f -A [Ordinance No. 1 Page No.3 Conflicts of Interest The measure provides that City officers may retain special legal counsel at City expense when the elected City Attorney has a conflict of interest, subject to the recommendation of the City Attorney and the approval of the City Council. It is recommended that the City Council consider establishing a process for approval of such recommendations. The draft Ordinance seeks to do so. CONCLUSION: The Elected City Attorney Charter Amendment establishes new roles and procedures for the Chula Vista City Attorney. Most of the Charter Amendment is self-executing. However, portions of the measure require implementation by the City Council. This draft Ordinance is intended to foster discussion regarding these matters. FISCAL IMPACT: None. A TT ACHMENTS: l. Draft Ordinance 2. Charter Amendment /71- 3 DRAfT ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADDING CHAPTER 2.11 TO THE CHULA VISTA MUNICIPAL CODE RELATING TO THE OFFICE OF THE ELECTED CITY A TTORt'\JEY WHEREAS, in November of 2008, the residents of the City of Chula Vista approved Proposition Q, which amended the Chula Vista City Charter to make the office of City Attorney an elected office of the City; and WHEREAS, Proposition Q made changes to the City Charter related to the City Attorney's role, powers and relationship with the City Council; and WHEREAS, portions of Proposition Q require City Council action to ensure the measure's full implementation; and WHEREAS, the City Council intends to fully implement Proposition Q by adding Chapter 2.11 to the Chula Vista Municipal Code. NOW, THEREFORE, the City Council of the City ofChula Vista does ordain as follows: SECTION 1: That Chapter 2.11 of the Municipal Code is hereby added to read as follows: Chapter 2.11 ELECTED CITY ATTORNEY SECTIONS: 2.11.010 Findings 2.11.020 Purposes 2.11.030 Compensation of City Attorney 2.11.040 Declaration of Vacancy 2.11.050 Filling a Vacancy 2.11.060 Boards, Commissions and Agencies of the City 2.11.070 Council Approval or Ratification of Legal Proceedings. 2.11.080 Appointment of Special Counsel 2.11.090 Conflicts of Interest 2.11.010 Findings. A. In November of 2008, the residents of the City of Chula Vista approved Proposition Q, which amended the Chula Vista City Charter to make the office of City Attorney an elected office of the City ("the Measure"). 1 /;71'J -<I ORDINANCE NO. B. The City Council finds that implementation of portions of the Measure requires action by the City Council. C. The City Council further finds that the Chula Vista Municipal Code should be amended to implement the Measure where City Council action is required. D. The City Council further finds that this Ordinance is not intended to, and does not in any way, amend or alter the provisions of the Measure. In the event of conflict between this Ordinance and the Measure, the Measure shall govern. 2.11.020 Purposes A. The City Council intends by adding this Chapter to implement the Measure, to ensure the complete and seamless transition of the office of City Attorney from an appointed to an elected position, and to ensure compliance with state and local laws. B. The City Council does not intend by this Chapter to expand or restrict the Measure's scope or seek to address issues already specifically addressed in the Measure. 2.11.030 Compensation of City Attorney. The Measure authorizes the City Council to set the compensation of the City Attorney. In addition, the Measure specifies a formula to determine the minimum compensation that may be paid to the City Attorney. To implement this formula, the City Council shall, as of February of each year, use the most current annual population estimates published by the California Department of Finance, Demographic Research Unit, to determine the six California cities whose population is closest to the City, as specified in the Measure. In the event that the city attorney of any comparable city is not an employee of that city, the compensation for such city attorney shall not be used as a comparison and the city with the next higher and/or next lower population, as applicable, shall be used in the comparison. As of March of each year, the City shall, for each comparable city as identified above, obtain a copy of the employment contract for the city attorney and/or other documentation necessary to demonstrate the city attorney's salary. The City shall also obtain a certified report from each city's city manager, or his/her designee, regarding the city attorney's compensation as of March of the then current year. This data shall be used to calculate the minimum salary of the City Attorney and shall be made available to the public no later than May of each year. For purposes of this Section, "compensation" means any and all payments made by a city to the city attorney, or accrued to the benefit of the city attorney, as consideration for the public official's services to the city. Such payments include wages, pension benefits, health and other insurance coverage, rights to compensated vacation and leave time, free or discounted transportation, payment or indemnification oflega] defense costs, and similar benefits. 2 /7/}"S ORDINAt'\lCE NO. 2.11.040 Dcclaration of Vacancy. The Measure sets forth circumstances in which the City Council may declare the oftice of City Attomey vacant. A declaration of vacancy shall be made during a regularly scheduled City Council meeting following a public hearing. Prior to declaring the office of City Attorney vacant, the City Council shall make findings, by resolution, setting forth the basis for such declaration. 2.11.050 Filling a Vacancy. The Measure provides that a vacancy in the office of City Attorney be filled by the City Council when fewer than 24 months remain in the term of the oftice. At such time as a vacancy in the office of City Attorney is declared by the City Council with less than 24 months remaining in the unexpired term, members of the City Council may submit to the City Clerk, no later than ten business days after said declaration, the name of one nominee to fill the vacancy, together with any information in support of such nomination. The City Clerk shall prepare and submit to the City Council a full list of nominees and shall cause to be placed on the agenda of the next regularly scheduled City Council meeting an item for the discussion and action by the Council on the nominees. The City Council shall consider all such nominees and shall vote to select a nominee to fill the vacancy after a public hearing. The replacement shall be appointed to office within 60 days of the declaration of vacancy. 2.11.060 Boards, Commissions and Agencics of thc City. The Measure provides that the City Attorney shall advise all boards, commissions and agencies of the City on legal matters referred to him or her. The City Council may waive the referral requirement and authorize, by resolution, any board, commission or agency to directly request services of the City Attorney. Otherwise, all boards, commissions and agencies of the City shall be required to request City Council authorization prior to requesting any City Attorney services. In such cases, in order to request legal services, the board, commission or agency requesting such services shall present a written request to the City Council, which shall specify the particular matter or matters for which the board, commission or agency seeks services, a description of the requested scope of services, and any time constraints associated with said services. The City Council shall hear and act upon such request during a regularly scheduled. City Council hearing or closed session, as appropriate. If approved, the City Council shall forward the request to the City Attorney for action. The City Attorney may recommend to the City Council, at any time, that a board, commission or agency be represented by special legal counsel, when, in the sole discretion of the City Attorney, it is necessary in order to avoid a conflict of interest under state or local law. 2.11.070 Council Approval or Ratification of Legal Proceedings. The Measure provides that the City Attorney may exercise discretion as to when to commence or maintain legal proceedings when a cause of action exists in favor of the City. The o ~ 17/)-.&':" ORDINA-NCE NO. City Attorney shall seek approval before commencing or maintaining a claim on behalf of the City whenever possible. Wbenever the City Attorney requests prior approval of such a claim, the City Council shall act on the request by the City Attorney to commence or maintain legal proceedings within a reasonable time and shall make any necessary adjustments to the City" budget. In the event that the City Attorney is unable to request approval prior to commencing or maintaining a claim, the City Attorney shall request that the City Council schedule a closed session hearing for ratification of the claim at the next regularly scheduled City Council meeting. In the event that the City Council declines to approve or ratify the legal proceedings, the City Attorney shall complete all activities necessary to conclude or terminate the legal proceedings in a timely manner. 2.11.080 Appointment of Special Counsel. The Measure authorizes the City Council to empower the City Attorney, at his or her request to employ special legal counsel. In requesting the appointment of special legal counsel, the City Attorney shall present a written request to the City Council specifYing the basis for the request for special legal counsel and the timeframe, scope and matter for which the special legal counsel is recommended. The request shall be heard during a regularly scheduled City Council meeting. Upon approval of the use of special legal counsel, the City Council shall make any necessary adjustments to the City budget. The City Council may, by resolution, delegate this approval authority to the City Manager. 2.11.090 Conflicts ofInterest. The Measure provides that an officer of the City may retain special legal counsel when a conflict of interest exists between the City Attorney and such office of the City. At such time as the City Attorney finds, in his or her sole discretion, that a conflict of interest exists, the City Attorney shall make a written recommendation to the City Council that the City retain special legal counsel. The written recommendation shall include the basis for the conflict of interest and the timeframe, scope and legal matter for which the outside legal counsel is recommended. The City Council shall approve such request unless extenuating circumstances apply. SECTION II. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion of this Chapter is for any reason held invalid or unconstitutional, such portion shall be deemed a separate and independent provision and such decision shall not affect the validity of the remainder. SECTION lII. This Ordinance will take effect and be in full force thirty (30) days from final passage. 4 /719,7 ORDINANCE NO. SECTION IV. CERTIFICATION. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published once in a newspaper of general circulation printed and published within the City of Chula Vista. Presented by Approved as to form by 5 /7~-R The following is the text of the amendments to the Charter of the Citv of Chula Vista. submitted to and ratified by the voters of the City of Chula Vista on November 4, 2008: ' ELECTED CITY A TTOR!'\fEY ACT Section 1, Purpose and Findings - Elected Citv Attornev, This charter amendment is intended to provide for the election of the City Attorney by the residents of ihe City of Chula Vista, The Ciry of Chula Vista should have an elected City , Attorney who is responsible to Chula Vista residents instead of an appointed city attornev responsible only to the Mayor and City CounciL It is in the best interests of the City of Chula Visia thai the City Attorney be sufficiently independent of the City Council and other citv , officials to able to both advise the city and act in the best interests of the public. Section 2, Amendment of the CharteL A, Seciion 503 of the Charter of the City of Chula Vista IS hereby amended to read as follows: Section 503 Citv Attornev: Election. Powers and Duties (a) Designation as Officer. The City Attorney shall be an officer of the City, in addition to any other officers designated pursuant to this CharteL It is the intent of the voters that the City Attorney shall be sufficiently independent of the City Council and other city officials to advise the City while also acting in the best interests of the public, (b) Powers of the City Attorney, The City Attorney shall: (1) Represent and advise the City Council and all city officers in all matters of law pertaining to their offices and advise all boards, commissions, and other agencies of the City on legal matters referred to him or her, and render "Titten legal opinions when the same are requested in writing by the Mayor or a mem\:ier of the Councilor the City Manager or any oL.'1er officer, board or commission of the City; (2) Represent and appear for the City and any city officer or employee, or former City officer or employee, in any or all actions and proceedings in which the City or any such officer or employee in or by reasons of his or her official capacity, is concerned or is a party; (3) Attend all regular meetings of the City Council and give his or her opinion in \\,Tiiing whenever requested to do so by ihe City Councilor by any of the bocrds or officers of the City; (4) Approve the fonn of all contracts made by and all bonds given to the City, endorsing approval thereon in "Titing; /71,~ '1 (5) Prepare any and all proposed ordinances or resolutions for the City, and amendments thereto; (6) Prosecute, if so directed by ordinance of the City Council, all offenses against the ordinances of the City and for such offenses against the laws of the State as may be required by law, and shall have concurrent jurisdiction with the District Attorney of the County of San Diego to prosecute persons charged with Dr guilty of the violation of the State laws occurring within the City limits of the City of Cbula Vista for offenses constiruting misdemeanors; (7) Whenever a cause of action exists in favor of the City, exercise discretion as to when to commence or maintain legal proceedings, subject to the' approval or ratification by the City Council, when the basis for such action is within the knowledge of the City Attorney, Dr, he Dr she shall commence Or maintain legal proceedings as directed by the City Council; (8) Surrender to his or her successor all books, papers, files and documents pertaining to the City's affairs, The Council may empower the City Attorney, at his or her request, to employ special legal counsel, and he or she shall have the power to appoint appraisers, engineers and other technical and expert services necessary for the handling of any pending or proposed litigation, proceeding or other legal matter. Upon the City Attorney's recommendation and the approval of the Council, when be Dr she has a conflict of interest in litigation involving another office of the City in his official capacity, such other officer may retain special legal counsel at City expense. Nothing in this Section 503 shall be construed to prevent the City Attorney from giving confidential advice to the City when otherwise allowed by law. (c) Election; Compensation of City Atto'rney, The City Attorney shall be nominated and elected in the same manner and at the same election as a member of the City Council, except as otherwise provided in this section, The compensation of the elected City Attorney shall be set by the Council, but shall be not less than the median compensation paid to the City Attorneys of the six California cities whose populations are closest to that of the City of Chula Vista, provided that three are higher and three are lower in population, and that compensation may not be reduced during the City Attorney's term of office, except as part of a general reduction of salaries of all officers and employees in the same amount Dr proportion, The City Attorney shall be in the Unclassified Service, Cd) Qualifications of City Attorney, No person shall be eligible for Dr continue to hold the Offlce of City Attorney, either by election Dr appointment, unless he or she is a citizen of the United States, a qualified elector, and a California resident, licensed to practice law in all courts of the State of California and so licensed for at least seven years preceding his or her assumption of office following election under this charter. IJ,1 ~/O .(e) Term of Office of the City Attorney. The City Attorney shall be elected to a nominal term of four years and shall commence on the first Tuesday of December of the year of the election, and shall continue until a successor qualifies. (f) Vacancy, FiIling of. Upon the declaration of vacancy in the Office of the City Attorney, the Office of the City Attorney shall be tilled by appoinL.'nent by the majonly vote of the members of the Council; provided, that if the Council shall faii to fill a vacancy by appointment within sixty days after such office shall become vacant, or if the unexpired term of the City Attorney shall exceed 24 months at the time of the appointment, the City Council shall cause a special election to be held to fill such vacancy. An appointee or the person elecied to the Office of City Attorney for the balallce of all unexpired term shall hold office until the next general election for the Office of the City Anorney. (g) Vacancy, What Constitutes. The Office of City Attorney shall be declared vacant by the Council when the person elected or appointed thereto fails to qualify within ten days after his or her term is to begin, dies, resigns, ceases to be a resident of the State or absenis himself Or herself continuously from the State for a period of more than thirty days without penmission from the Council, absents himself or herself from any seven consecutive regular meetings except on account of ovm illness or when absent from the City by permission of the Council, is convicted of a felony, is judicially determined to be an incompetent, is penmanently so disabled as to be unable to perform the duties of his or her office, forfeits his or her office under any provision of this Charter, or lS removed from office by judicial procedure. A finding of disability shall require the affirmative vote of at least two-thirds of the members of the Council after considering competent medical evidence bearing on the physical or mental capability of the City Anorney. B. Section 500 of the Charter of the City ofChula Vista is hereby amended as follows: 500. Election. Aooointment and Removal of Officers and Deoartment Heads (a) Election; Appointment. The City Attorney shall be elected by the voters of the Citv. The City Manager and City Clerk shall be appointed by and serve at the pleasure of the City Council and shall be in the Unclassified Service. ln addition, mere shall be in the Unclassitied Service a private secretary for the City Manager, City Attorney and the Mayor and Council who shall be appointed by the respective officers for whom they serve. All ot.her officers and department heads of the City and the Assistant City Manager shall be appointed by the CilY Manager subject to the approval of the City Council. The City Anorney shall also appoint Assistant or Deputy City Attorneys as may be authorized by the COUJlcil, who shall be in the Unclassified Service. The City Clerk may also appoint Assistant or Deputy City Clerks as may be authorized by the Council subject to the approval of the Council who shall be in the Unclassified Service. It is fclnher provided the City Council may, by ordinance, place Assistant and Deputy Department Heads, Assistants to Lf:1e City Manager and new management level positions in the Unclassified Service by a four-fifths vote of the Council. (b) Removal Officers and employees in the Unclassified Service appointed by the City Council may be removed by them at any tiDle by a majority vote ~fthe members of the Council, and such officers and department heads in the Unclassified Service appointed by the City / 74 ~// Manager or City Attorney, respectively, may be removed by him or her at any time and, in the case of appointees in the Unclassified Service, the order of the City Council, the City Attorney, or the City Manager affecting said removal shall be final and conclusive. The position of said officers and employees shall be declared vacant if said officer or employee is convicted of a felony or crime involving moral turpitude. Any appointee or employee in the Unclassified Service so removed by the City Manager, the City Attorney or City Clerk may, however, within five (5) days after receipt of a notice of dismissal, demand a written statement of the reason for such dismissal, a copy of which shall be forthwith filed with the City CounciL Upon receipt of such written statement so furnished by the City Manager, the City Attorney or City Clerk to the City Council, the Council shall fix a time and place for a public hearing, at which hearing the Council shall have authority to investigate the facts set forth in said written communication from the City Manager, the City Arrorney or City Clerk containing the reason for said dismissal, and determine the truth or falsity of said facts. Council shall report its fmdings and recommendations made as a result of such hearing, and cause a copy of said findings to be delivered to the City I\-fanager, the City Attorney or City Clerk and file the original with the City Clerk. The dismissed appointee or employee in such cases shall have the right to file with the Council a \vritten reply or answer to any charges filed by the City Manager, the City Attorney or the City Clerk. All 'WTirren documents, including the City Manager's, the City Attorney's or the City Clerk's ,,,ritten reasons for such dismissal, and the reply of the dismissed appointee or employee, the findings and decisions of the Council, and any documentary evidence used at the hearing shall be filed with the proper office of the City as public records, open for inspection at any time. Nothing herein contained, however, shall be construed as in any way limiting the authority and power of the City Manager, the City Attorney or the City Clerk to remove any appointee or employee in the Unclassified Service of the City, so appointed or employed, and all such removals shall be final and conclusive. (c) No fiscal impacts. Except as expressly provided in Section 503, nothing in this Section 500 shall be construed to limit the budgetary authority of the City Council as respects the officers and employees under the supervision of the City Attorney. Section 3, Implementation. A. Upon the effective date of this initiative, the provisions of this initiative shall be inserted into the Charter as amendments thereto. ."v1y provisions of City Charter, state law or city ordinances inconsistent with these amendments shall be unenforceable to the extent of the inconsistency, B. The City Arrorney serving at the time of the adoption of this initlative, or his or her successor(s) shall continue to be qualified to hold such office, and shall carry out the duties and be authorized to continue to exercise any and all powers of that office under the terms and conditions of this Charter and general law existing prior to the adoption of this initiative, until his or her successor is qualified and assumes office by election or appointment as a result of the next general election, /?I/../"L Section 4. Severability. If any word, sentence, paragraph, subparagraph, section or portion of this initiative is declared to be invalid by a court, the remaining words, sentences, paragraphs, subparagraphs, sections and portions are to remain valid and enforceable. Section 5. Amendment or Repeal. This initiative may be amended or repealed only by t.'Je voters at a City election. Section 6. Effective Date. If a majority of the voters voting on the proposed charter amendment vote in its favoL the chal1:er amendment shaH become valid and binding upon filing by the California Secretary of State. Certified and Authenticated by: ~:bU Cheryl ox, M' or ;y- J{DMAA V_~,{,,~ Dofuia Norris, City Clerk Attested by: /~ua Ie. A(;~ Donna Norris, Cry ctefk /7/f~/3 THERE IS NO BACKUP MATERIAL FOR ITEM #17 B ~!~ -iJIl- ~._-~ .......""'--= Mayor and City Council City Of Chula Vista 275 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO CITY OF CHULA VrSfA ::.t~~,,;a.~1/r~~~~~^'"?P' ~,':i':~ ~',,"~V~lI;~.:ci"':\>l ~J~..~~'~~~t.. ;;~~. <~ ~)"~..: ~ "" ".~-,,' _-~ August 24, 2009 TO: Donna Norris, City Clerk Lorraine Bennett, Deputy City Clerk Sheree Kansas, Records Specialist FROM: Mayor Cheryl Coi\\~.' Jennifer Quijano, ~onstituent Services Mana~ Board & Commission Recommendations for September 1, 2009 Council Agenda VIA: RE: ~,.~;J..,~!4-~\~, a,~~4',~:-,'-~.~!.'~:"...~,~_":" ~';''''~... .,.<t';~"'~1l~~ '"...~~.~...~-lt" ;.~~ ~..""~~;.',jj~,,:-.; ~. Mayor Cox would like to recommend the following appointments, Please place these items on the September 1, 2009 Council agenda for ratification and schedule the oath of office for the September 15, 2009 Council agenda. Name: James Balnis Derek Turbide Julio Fuentes Carol Gove Alejandro Galicia Virgil Whitehead Board/Commission: Board of Library Trustees Resource Conservation Safety Commission Safety Commission Veterans Advisory Veterans Advisory Replacinq: Virginia Martinez Doug Reid Catherine Johnson Mark Perrett Bobby Price Stephen Milliken Thank you. g'~5/C>9 - Tn..... o.'t.oI.>eH-e..\.:""ed q~,,'-,co.,,-\-. ,-e".;J..e. ;1'\ t'n.",- C'n.u.\"I Vi.:\- C~~ \;"",~ =",,,,l!)' C:;Q~.se 01. ~. G ' CO' ~ 0'1'\ '''''- k'J SOr~l\.. """"^:ss:;o.... -{Yo...... \ ""t 7 _ .;>.00,(; ., - '1 '1 ~\ w~;l..,"'..C>...I ~><.r<>.o\ O\~ ~. "'-\ '1- ~"',<... ~ \995_ '~'\l.. . 1'/- 01 MEMO '4/1109 A-d~;'h'0\,o.\ r~-\..() ~\f? ~ ~~~~ CITY OF (HULA VISTfl Pub,lie Works Department DATE: August 3 I, 2009 TO: FROM: Honorable Mayor and City Council Jim Sandoval, City Manag~ '1 Scott Tulloch, Assistant Ci:~'J:ager S \ ~ Richard Hopkins, Director of Public Work~ Matt Little, Assistant Director of Public WorkQ.-- VIA: SUBJECT: Mediterranean Iruit fly in Imperial Beach City Staff was recently notilied by the California Department of Food and Agriculture (see Attachment) that a Mediterranean fruit Jly was discovered on July 30 in Imperial Beach. Due to the potential damage to fruit crops and the very wide host range of this pest, eradication efforts began immediately. At present, the only treatment within the City of Chula Vista will be to release sterile fruit flies. Should this situation change, staff will notify Council immediately. Any questions regarding this program should be directed to the California Department of "OOn and Agri~"lt!lr" "t: (n 19) 654-1211. 1800 Maxwell Road, Chula Vista, CA 91911 www.chulavistaca,gov (619) 397-6000 fax (619) 397-625i CALIFORNIA DEPARTMENT OF FOOD AND AGRICULTURE OFFICIAL NOTICE FOR THE CITIES OF CHULA VISTA, CORONADO, IMPERIAL BEACH AND SAN DIEGO PLEASE READ IMMEDIATELY PROCLAMATION OF AN ERADICATION PROJECT AGAINST THE MEDITERRANEAN FRUIT FLY The Mediterranean fruit fly (MDFF), a serious exotic insect pest, was detected in the City of Imperial Beach, San Diego County on July 30, 2009. The MDFF is not known to be established in California. This pest attacks over 250 different hosts, many of which are grown in San Diego County. Emergency eradication action is needed to protect California from the negative economic and environmental impacts the establishment of this pest would cause. The California Department of Food and Agriculture's eradication protocol is based on an Action Plan developed in consultation with the Pest Prevention Committee of the California Agricultural Commissioner's Association, United States Department of Agriculture and scientists on an advisory panel. Treatment Plan for MDFF in San Diego County: . Foliar bait treatments are applied from the ground. The foliage of all host trees and plants within a 200-meter radius of the detection site are treated. The 'spray is an organic formulation of spinosad. Visit the CDFA website to learn more about the treatment process at http://www.cdfa.ca.qov/phpps/videos/spinosad/. . The standard treatment technique for the MDFF is the sterile insect technique. This method relies on the flooding ofthe area with sterile MDFF. When the sterile males mate with wild females, no offspring are produced. Gradually, the wild fly population decreases, while the sterile fly population increases through continued release. When wild flies can find only sterile flies with which to mate, the wild population becomes extinct. . Larval survey will occur up to 200-meters around any property where MDFF are trapped to determine if other stages are present. If MDFF larvae are present, fruit from the infested property and up to 1 OO-meters around the find site will be removed and taken for disposal under regulatory compliance. Public Notification: Affected properties are notified in writing at least 24 hours prior to treatment. Following the treatment, completion notices are left with the homeowners detailing precautions to take and post-harvest intervals applicable to any fruit on the property. Treatments are repeated every seven to 14 days for one life cycle. Enclosed is the Proclamation of an Eradication Project, the work plan, host list and a map of the treatment area. This eradication project will continue for three life cycles past the date of the last MDFF trapped. If no additional MDFF are detected, the MDFF will be declared eradicated. MEDITERRANEAN FRUIT FLY IMPERIAL BEACH, SAN DIEGO COUNTY 2009 ~\ \ I II ~ . j: ~ ; \1 - , ~ ~-!~Q]~_~I-JG'_' ,"" ~ " - c( -Cj 8 J I L'r~- ! \ \ ImRerlal Be~ l_._ ...... .."~:.. i IMAGINARY LINE COASTLINE OF CALIFORNIA @.11713189732.558674 , . --- """ -- ~ .'L,=~~~~=" "1 ,.~~,- ~!.~-- ~ "~~J~~, :; ~~~: 'I ~ '.; 1"-~O,,,,,,,,,$I"::NSETA~li'H.__' ~ <~ SUNSET AV I ;:tl @15THST II " I I I. ,.j ~, i cdfa ~ ~ DETECTION SITE -H'~ ERADICATION BOUNDARY PEST PROFILE Common Name: Mediterranean Fruit Fly Scientific Name: Ceratitis capitata (Wiedemann) Order and Family: Diptera, Tephritidae Description: The Mediterranean fruit fly is slightly smaller than a housefly with an average length of 3.5-5.0 mm. The adult has a predominantly dark body with two white bands on the yellowish abdomen. The wings have brown, yellow, black, and white markings. The female has a pointed, slender ovipositor to deposit eggs beneath the skin of the host fruit. The larvae is a legless maggot, creamy white in color, and may grow to a length of 0.4 inch within the host fruit. Historv and Economic Importance: The Mediterranean fruit fly was first discovered in the Hawaiian Islands in 1910. With an abundant supply of host fruit in which to lay its eggs, the fly multiplied rapidly, seriously reducing the yield and quality of many crops such as mango, guava, avocado, papaya, coffee, peach, and persimmon. A great number of crops in California would be threatened by the introduction of this pest including; apricot, avocado, grapefruit, nectarine, orange, peach, and cherry. It has been estimated that the permanent presence of this pest in California would result in yearly losses of over $205 million in crop damages, additional pesticide use, and quarantine requirements. This pest has been introduced periodically in the State since 1975. All previous infestations have been eradicated in California. Distribution: The Mediterranean fruit fly is widespread throughout Australia, Central and South America, Europe, and Africa. Its distribution in the United States is restricted to the Hawaiian Isiands. Life Cvcle: A female lays eggs in groups of one to six eggs within the fruit, and may lay as many as 1,200 eggs in her lifetime. The larvae tunnel through the fruit feeding on the pulp, shed their skins twice, and emerge through exit holes in seven to 24 days. The mature larvae drop from the fruit and burrow beneath the soil to pupate. In eight to 46 days, the adults emerge from these puparia. The newly emerged adults require from four to 10 days to mature prior to egg-iaying. Breeding is continuous, with several annual generations. The average life span of the adult is about 30 days. Under optimum conditions the entire life cycle may be completed in 30 days, but requires longer time intervals at lower temperatures. Host and Damaqe: The Mediterranean fruit fly has been recorded infesting over 250 different types of fruits and vegetables. Fruit that has been attacked may be unfit to eat; larvae tunnel through the fiesh as they feed. Decay organisms enter, leaving the interior of the fruit a rotten mass. Partial Host List COMMON NAME SCIENTIFIC NAME Akee Almond with husk Apple Apricot Argan tree Avocado Barbados cherry Bourbon orange Calamondin orange Canistel Ceylon-gooseberry Chanar Cherimoya Cherry (sweet and sour) Citrus citron Coffee Custard apple Date Dwarf papaya Fig Gourka Grape Grapefruit Guava Hawthorn Hog plum Japanese persimmon Bliqhia sapid a Prunus dulcis = (P. amvqdalus) Malus svlvestris Prunus armeniaca Arqania sideroxvlon = (6. spinosa) Persea americana Malpiqhia qlabra and M. punicifolia Ochrosia elliptica Citrus mitis Pouteria campechiana Dovvalis hebecarpa Geoffroea decorticans Annona cherimola Prunus avium, E. cerasus Citrus medica Coffea arabica Annona reticulata Phoenix dactvlifera Carica quercifolia Ficus carica Garcinia xanthochvmus Vitis vinifera Citrus paradisi Psidium quaiava Crataequs spp. Spondias mom bin Diospvros khaki COMMON NAME Japanese plum Jocote Kei apple Kiwi Kumquat Lemon (except commercially grown Eureka, Lisbon, and Villa Franca cultivars) Lime Litchi Longan Loquat Mandarin orange (tangerine) Mango Mock orange Mombin Mountain apple Natal plum Nectarine Olive Opuntia cactus Papaya Passion fruit Peach Pear Pepper Pineapple guava Plum Pomegranate SCIENTIFIC NAME Prunus salicina Spondias purourea Dovvalis caffra Actinidia chinensis Fortunella iaponica Citrus limon Citrus aurantiifolia Litchi chinensis Euphorbia lonqana Eriobotvra iaponica Citrus reticulata Manqifera indica Murrava exotica Spondias spp. malaccensis Carissa macrocarpa and Terminalia chebula Prunus persica Olea europea Opuntia spp. Carica papaya Passiflora edulis Prunus persica Pvrus communis Capsicum annum and g. frutescens Feiioa sellowiana Prunus americana Punica qranatum COMMON NAME SCIENTIFIC NAME Pomiform guajava Pond apple Prune Pummelo (Shaddock) Pyriform guajava Quince Rose apple Sapodilla Sour orange Spanish cherry (Brazilian plum) Spanish plum Star apple Strawberry guava Sugar apple Sugarplum Surinam cherry Sweet orange Tomato (pink and red ripe) Tree tomato Tropical Almond Walnut with husk Psidium quaiava 'Pomiform' Annona qlabra Prunus domestica Citrus qrandis Psidium quaiava 'Pyriform' Cydonia spp. Syzyqium iambos = (Euqenia iambos) Manilkara zapota Citrus aurantium Euqenia dombeyi, ~. brasiliensis Spondias mom bin Chrvsophyllum spp. Psidium cattleianum Annona squamosa Arenqa pin nata Euqenia uniflora Citrus sinensis Lycopersicon esculentum Cyphomandra betacea Terminalia catappa Juqlans spp. MEDITERRANEAN FRUIT FLY ERADICATION PROJECT WORK PLAN DETECTION 1. Detection Trapping The California Department of Food and Agriculture (Department) maintains a cooperative state/county trapping program for the various fruit flies to provide early detection of any infestation in the state. Traps are serviced by county personnel funded by the Department. The program uses Jackson traps baited with trimedlure and the McPhail trap, an invaginated glass flask baited with yeast in water, a food attractant that is attractive to both sexes of the fly. Traps are hung from branches of host trees at specified densities in susceptible areas of California. County or state employees inspect these traps weekly, or bi-weekly, throughout the year in southern California, and from April through November in northern California. 2. Intensive Trapping Intensive trapping is triggered after a single fly is trapped. Following confirmation of the specimen, trap densities in the core square mile(s) are increased within 24 hours. Three types of traps will be used to delimit the infestation and monitor post-treatment populations after sterile medfly releases are completed. Jackson and/or yellow panel traps baited with trimedlure are placed over an 81-square mile area around each fly find in a 100-50-25-20-10 array. Multilure traps are increased to 20 traps per square mile in ,.., ;...;J.he..qore...s.g\J.<;lre.rnj~(s). Additional traps may be added to further delimit,the.infestation and to determine the efficacy of the treatments. Traps in the core are serviced daily for one week following the last fly detected. Traps in the surround eight square miles are serviced every other day following the last fly detected. All traps in the balance of the delimitation zone are serviced weekly following a week of negative trap catches. Traps may be relocated to available preferred hosts as practical. Intensive trapping ends when treatments begin or after the third complete life cycle if no further flies are found. This time period is determined by a temperature dependent developmental model run by Pest Detection/Emergency Projects Branch personnel in Sacramento. 3. Post-Treatment Monitoring The succ.ess of the eradication program is monitored by intensive trapping levels for one life cycle of the fly after the cessation of eradication activities. If no flies are caught during that time, trap densities return to detection levels. 4. larval Survey Fruit on a property where a fly has been trapped is inspected for possible larval infestation. Small circular oviposition scars are occasionally visible, indicating an infested fruit. In the absence of visible clues, one hundred or more of the fruit of preferred hosts (if available) may be cut open at random and examined for larvae. First and second instar larvae are tiny, and may be feeding immediately under the surface of the skin; therefore, fruit cutting should be left to experienced personnel. Fruit on properties adjacent to a trap catch may also be inspected. Mediterranean Fruit Fly Work Plan Page 2 If two or more flies are trapped in proximity, fruit cutting may be extended to all properties in a 200-meter radius of the finds, concentrating on preferred hosts. Fruit must be inspected within the quarantined area. If larvae are found, it may be deemed necessary to strip host fruit from all properties within a 1 OO-meter radius of the finds. TREATMENT OPTIONS 1. Foliar Spray If a mated female, immature life stages or multiple medflies are detected on a property, the foliage of host shrubs and trees on the infested and adjacent properties is treated within 24 hours with spinosad using hand spray equipment. If the trap catches warrant it necessary, foliar sprays may be extended up to 200-meter radius around an infested property. Treatments are repeated at seven to 14 day intervals, unless significant rainfall justifies retreatment. Treatments will continue for one life cycle past the last fly detected. Any resident whose property will be treated with foliar sprays is notified, in writing, prior to treatment. 2. Sterile Insect Technique This method relies on flooding the infested area with sterile medflies. When the sterile males mate with wild fen'a!es. no 'lffs;.'rin:;J ?ore produced... Gmdual!)', the 'Ni!d fly population decreases, while the sterile fly population increases. through continued release. When wild flies can find only sterile flies with which to mate, the wild population will become extinct. This technique is used after spinosad bait sprays have been utilized to kill existing fertile wild medflies. In order for the technique to succeed, a minimum over-flooding ratio of 100:1 must be maintained. The release area will be nine square miles around each infested site. Release of sterile flies will be continued for at least two life cycles past the last fly find. Multilure and Jackson traps are deployed to monitor the success of the sterile insect release program. The goal is to achieve and maintain a minimum of 100 sterile flies trapped to each wild fly. If this ratio cannot be achieved or maintained, bait sprays will resume to reduce the population of wild flies. In this case, the bait sprays will continue for two life cycles of the medfly. 3. Host Removal If larvae are found, host removal (fruit stripping) may be used in conjunction with other elements of this program. All host fruit from the infested property and up to a 100-meter radius is removed and taken to a landfill for burial. Affected properties are notified in writing at least 24 hours prior to removal of the fruit. Mediterranean Fruit Fly Work Plan Page 3 PUBLIC INFORMATION Public information concerning the medfly project consists of press releases to the media to inform the general public, and direct notification of project developments to concerned local and state political representatives and authorities. Press releases are prepared by the Department's information officer and the county agricultural commissioner, in close coordination with the project management. Either the county agricultural commissioner or the public information officer then serves as the primary contact to the media. Any resident whose property will be treated with pesticide sprays will be notified in writing prior to treatment. t\...,.......~.,-. ~... .... ..- ....... ~.~$;' .,~.,., ..\..~- hIt PROCLAMATION OF AN ERADICATION PROJECT REGARDING THE MEDITERRANEAN FRUIT FLY On July 30, 2009, a single mated female Mediterranean fruit fly (MDFF) was trapped in the City of Imperial Beach in San Diego County. Based on the evidence presented to me by my staff, the Mediterranean Fruit Fly Science Advisory Panel (MEDSAP), and the trapping and survey data, I have determined that an infestation of this pest exists. The MDFF, Ceratitis capitata (Wiedemann), is widespread throughout Australia, Central and South America, Europe, and Africa. Its distribution in the United States is restricted to the Hawaiian Islands where it was discovered in 1910. With an abundant supply of host fruit in which to lay its eggs, the fly multiplied rapidly in Hawaii, seriously reducing the yield and quality of many crops such as mango, guava, avocado, papaya, coffee, peach, and persimmon. Worldwide, the MDFF has been recorded infesting over 250 different types of fruits and vegetables. A great number of crops in California would be threatened by the introduction of this pest including apricot, avocado, grapefruit, nectarine, orange, peach, and cherry. Fruit that has been attacked may be unfit to eat; larvae tunnel through the flesh as they feed. Decay organisms enter, leaving the interior of the fruit a rotten mass. It has been estimated that the permanent presence of this pest in California would result in yearly losses of over $1.3 to $1.8 billion in crop damages, additional pesticide use, and quarantine requirements. This pest has been introduced into the state periodically since 1975. Several infestations have been eradicated previously. As Undersecretary of the Department of Food and Agriculture, I have decided based upon the potential environmental and economic dam,:;ge '.vhi.;h could be iilfiicted by an estai.,lished infestation of the MDFF, that under my statutory authority, it is incumbent on me to attempt to eradicate the MDFF and its life stages from California. This decision to proceed with an eradication program is based upon a realistic evaluation that it may be possible to eradicate the MDFF using currently available technology in the same manner as has been successfully used to eliminate previous infestations. My duties to act, and this decision, are based upon authority set forth in Section 3591.5 of Title 3 of the California Code of Regulations, Sections 403, 5001 et seq., and especially 5761-5763 of the Food and Agricultural Code. Following is a listing of the options that I have considered for eradication of this MDFF infestation: 1) Sterile Insect Technique (SIT) and 2) ground bait spray. There are also control options that I have considered. They are: 1) biological control; 2) mass trapping; 3) male attractant using bait stations; and 4) host removal. Based upon the advice of the MEDSAP and my professional staff, I am establishing an approximate 14.7 square mile eradication zone. Within that zone I am ordering: 1) the release of sterile MDFF; 2) ground applications of spinosad to all hosts within a 200-meter radius of each detection site; and 3) fruit stripping on all larval properties and on the properties that are adjacent to the infested sites. A description of the options chosen is contained in the work plan . that is attached. In issuing this decision, I have considered pesticidal and non-pesticidal options. I find that no non-pesticidal options exist to effectively eradicate or control the MDFF. Mediterranean Fruit Fly Proclamation August 3, 2009 Page 2 I have determined that these actions are necessary to prevent or mitigate an emergency under the California Environmental Quality Act (CEQA) Public Resources Code Section (21080) (b)(4). Emergency actions are exempt from CEQA. Consequently, I have determined that it is not necessary to prepare environmental documents for these emergency actions. Notwithstanding the above, and without waiving that provision of law, as a matter of policy in order to afford maximum protection to the environment, and to allow all interested parties to participate, the California Department of Food and Agriculture has prepared and certified two Final Environmental Impact Reports (FEIRs) entitled, "The Exotic Fruit Fly Eradication Program Utilizing Male Annihilation and Allied Methods" and "The Exotic Fruit Fly Eradication Program Using Aerial Application of Malathion and Bait", although these actions are exempt from CEQA as stated above. These FEIRs address the eradication of exotic fruit fly pests at the program level and provide guidance for the conduct of future emergency actions against these pests; they identify feasible alternatives and feasible mitigation measures to be implemented in individual exotic fruit fly pest eradication emergencies. I have, to the extent feasible, incorporated the mitigation measures recommended in both FEIRs. In accordance with Section 21105 of'the Public Resources Code, these FEIRs have been filed with the appropriate local planning agency of all affected cities, counties, or city and county. I find no local conditions that would justify or necessitate preparation of a site-specific plan. Eradication Plan ....-' . ....;...... .,,,....~. ......., ~...... t...... Wl",~' ~j The proposed eradication action is set forth more fully in the attached Mediterranean fruit fly work plan and a map of the treatment area. The proposed eradication area encompasses those portions of San Diego County which fall within an area defined by an approximate radius of 1.5 miles around each property on which an adult fly has been trapped, or on which another life stage of the insect is found to be present. A map of the detection site with eradication boundaries and the proposed eradication work plan are attached. In summary, the work plan will contain the following elements: ';1; a. Delimitation. Three types of traps will be used to delimit the infestation and monitor post-treatment populations after sterile MDFF releases have been completed. Jackson and/or yellow panel traps baited with trimedlure will be placed over an 81-square mile area around each detection site in a 100-50-25-20-10 array. Multilure trap (ML T) density will be increased to 20 traps in the core square mile. Additional traps may be added to further delimit the infestation and to determine the efficacy of treatments. All monitoring traps will be serviced on a regular schedule for a period equal to three fly generations beyond the date of the last fly detected. Traps may be relocated to available preferred hosts as practical. b. Treatment. Ground applications of spinosad may be applied to all properties within a 200-meter radius of each detection site within the eradication area to kill wild MDFF and stop reproduction of the MDFF population. Fruit stripping will also occur on all known larval infested and properties within 100-meters of a larval detection site. Residents in Mediterranean Fruit Fly Proclamation August 3, 2009 Page 3 affected areas will be notified in writing at least 24 hours prior to any insecticidal treatments or fruit removal operations. c. Sterile MDFF will be released over the treatment area. The MEDSAP may be asked to review the situation and make recommendations on the number and type of treatments needed to accomplish eradication. Sensitive Areas The eradication zone has been examined for the location of the threatened and endangered species and their habitats The CDFA will not apply pesticides to undeveloped areas of native vegetation or areas where endangered species or natural habitats exist. All treatments will be applied to residential properties and within urban developments. Public Notification Public information concerning the MDFF project will consist of press releases to the general public. Press releases are prepared by the San Diego County Agricultural Commissioner's Office in close coordination with the CDFA. Either the county agricultural commissioner or the pUblic information officer then serves as the primary contact to the media. Any resident whose property will be treated following the determination of a breeding population on or near their property wi!! he notified in writing prior to treatment. .,/ ~/ /./ //' ~~~~ Will Brown, Undersecretary ,/ !i" /)~?' Date . , If you have specific questions related to this program, please contact John Hooper, Program Supervisor at (916) 654-1211. Attachments