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Home My WebLink About2012 07-03 CC HA AGENDA PKTAgenda Of A Regular Meeting — National City City Council/Community Development Commission - Housing Authority of the City of National City Council Chambers 1243 National City Boulevard National City, California Regular Meeting — Tuesday — July 3, 2012 — 6:00 P.M. Open To The Public Please complete a request to speak form prior to the commencement of the meeting and submit it to the City Clerk. It is the intention of your City Council of the City of National City to be receptive to your concerns in this community. Your participation in local government will assure a responsible and efficient City of National City. We invite you to bring to the attention of the City Manager/Executive Director any matter that you desire the City Council of the City of National City to consider. We thank you for your presence and wish you to know that we appreciate your involvement. ROLL CALL Pledge of Allegiance to the Flag by Mayor Ron Morrison Public Oral Communications (Three -Minute Time Limit) NOTE: Pursuant to state law, items requiring Council of the City of National City action must be brought back on a subsequent Council of the City of National City Agenda unless they are of a demonstrated emergency or urgent nature. Upon request, this agenda can be made available in appropriate alternative formats to persons with a disability in compliance with the Americans with Disabilities Act. Please contact the City Clerk's Office at (619) 336-4228 to request a disability -related modification or accommodation. Notification 24-hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. Spanish audio interpretation is provided during Council Meetings. Audio headphones are available in the lobby at the beginning of the meetings. Audio interpretacibn en espafiol se proporciona durante sesiones del Consejo Municipal. Los audiofonos estan disponibles en el pasillo al principio de la junta. Council Requests That All Cell Phones And Pagers Be Turned Off During City Council Meetings National City City Council /Community Development Commission/Housing Authority CITY COUNCIL CONSENT CALENDAR 07/03/12 - Page 2 Consent Calendar: Consent calendar items involve matters, which are of a routine or noncontroversial nature. All consent calendar items are adopted by approval of a single motion by the City Council. Prior to such approval, any item may be removed from the consent portion of the agenda and separately considered, upon request of a Councilmember, a staff member, or a member of the public. 1. Approval of the Minutes of the Regular Meeting of the City Council and Community Development Commission — Housing Authority of the City of National City of June 19, 2012. (City Clerk) 2. Approval of a motion to waive reading of the text of the Ordinances considered at this meeting and provides that such Ordinances shall be introduced and/or adopted after a reading of the title only. (City Clerk) 3. Resolution of the City Council of the City of National City accepting the final contract amount of $148,514.38 with Black Rock Construction Company, authorizing the release of retention and ratify the filing of the Notice of Completion for the construction of the Concrete Improvement Project FY 2011- 12, Specification 11-06 (Funded CDBG & Gas Tax Funds). (Development Services/Engineering) 4. Resolution of the City Council of the City of National City accepting a $500,000 Federal Safe Routes to School Grant to deliver a Citywide Safe Routes to School Education and Encouragement Sustainability Program, appropriate funds, and award a contract to Rady's Children's Hospital -San Diego in the not - to -exceed amount of $500,000 to assist staff with program delivery (contract to be funded in full by the SRTS grant). (Development Services/Engineering) 5. Resolution of the City Council of the City of National City to approve, accept, and file with the County Recorder a modified Subdivision Map for Harborview Condominiums located at 819 D Avenue (Case File 2011-26 S). (Development Services/Engineering) National City City Council /Community Development Commission/Housing Authority 07/03/12 - Page 3 CONSENT CALENDAR (cont.) 6. Resolution of the City Council of the City of National City authorizing the Mayor to execute a Second Amendment to the Agreement with the City of Chula Vista for a total not to exceed amount of $326,927 to provide general animal control, shelter, and related administrative services to the residents of National City for an additional one (1) year term through Fiscal Year 2012-2013. (Police) 7. Resolution of the City Council of the City of National City authorizing the Mayor to execute a First Amendment to the Employment Agreement between the City of National City and City Manager Leslie Deese to set the health care benefit at the same amount as for executive and management employees, with no increase to base salary. (City Attorney) 8. Resolution of the City Council of the City of National City authorizing the Mayor to execute a First Amendment to the Employment Agreement between the City of National City and City Attorney Claudia Gacitua Silva to set the health care benefit at the same amount as for executive and management employees, with no increase to base salary. (City Manager) 9. WARRANT REGISTER #49 Warrant Register #49 for the period of 05/30/12 through 06/05/12 in the amount of $1,141,696.84. (Finance) 10. WARRANT REGISTER #50 Warrant Register #50 for the period of 06/06/12 through 06/12/12 in the amount of $2,035,525.89. (Finance) PUBLIC HEARINGS 11. Public Hearing: Confirming the assessment and ordering the levy for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2012/13. (Community Services) **Companion Item #14** National City City Council /Community Development Commission/Housing Authority 07/03/12 - Page 4 PUBLIC HEARINGS (Cont.) 12. Public Hearing: Consider the adoption of the 2012 Regional Transportation Improvement Program (RTIP) pursuant to San Diego Association of Governments (SANDAG) Board Policy No. 025. (Development Services/Engineering) **Companion Item #15** ORDINANCE FOR INTRODUCTION 13. An Ordinance of the City Council of the City of National City amending Title 13 of the National City Municipal Code by adding Chapter 13.28 pertaining to proprietary use of and placement of signs on City property. (City Attorney) NON CONSENT RESOLUTIONS 14. Resolution of the City Council of the City of National City confirming the assessment and ordering the levy for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2012/13. (Community Services) **Companion Item #11** 15. Resolution of the City Council of the City of National City adopting the 2012 Regional Transportation Improvement Program (RTIP) for National City projects for Fiscal Years 2013 through 2017 (Funded by Proposition A Funds). (Development Services/Engineering) **Companion Item #12 ** 16. Resolution of the City Council of the City of National City approving a Joint Trench Agreement with Access Cable Corporation wherein Access Cable Corporation shall pay the City the amount of $9,372.31 and authorizing the Mayor to execute the Agreement in conjunction with District 24 (8th Street) aerial to underground conversion of utilities. (Development Services/Engineering) 17. Resolution of the City Council of the City of National City approving a Joint Trench Agreement with Shelter Island Opportunity Fund, LLC and Douglas P. Wilson, Receiver for NexHorizons wherein the City shall receive the amount of $9,372.31 for providing underground facilities and authorizing the Mayor to execute the agreement in conjunction with Underground District 24 (20A Conversion 8t Street) aerial to underground conversion of utilities. (Development Services/Engineering) National City City Council /Community Development Commission/Housing Authority 07/03/12 - Page 5 NON CONSENT RESOLUTIONS (cont.) 18. Resolution of the City Council of the City of National City approving and authorizing issuance of a written report pertaining to a Moratorium Ordinance prohibiting new pawnbroker, secondhand and precious metal dealing and establishments in National City. (City Attorney) 19. Resolution of the City Council of the City of National City authorizing the approval of Weed Abatement Public Hearing Findings. (Fire) NEW BUSINESS 20. Notice of Decision — Planning Commission approval of a Conditional Use Permit for a dialysis school at 124 East 30th Street, Suite E. (Applicant: Teresita Mabini) (Case File 2012-10 CUP) (Planning) 21. Report on amending the criteria for the City of National City Employee Performance Recognition Program effective January 1, 2013. (Administrative Services/Human Resources) 22. Report on pawn brokers, second-hand dealers, and gold buying businesses and the impending expiration of the moratorium. (City Attorney) 23. Request for City Council Member Appointment(s) to City of National City Nutrition Center Sustainability Ad Hoc Committee. (City Manager) COMMUNITY DEVELOPMENT COMMISSION — HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY NO AGENDA ITEMS National City City Council /Community Development Commission/Housing Authority 07/03/12 - Page 6 STAFF REPORTS 24. Closed Session Report. (City Attorney) MAYOR AND CITY COUNCIL ADJOURNMENT Regular City Council/Community Development/Housing Authority of the City of National City Meeting — Tuesday — July 17, 2012 — 6:00 p.m. — Council Chambers — National City, California. COPIES OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY MEETING AGENDAS AND MINUTES MAY BE OBTAINED THROUGH OUR WEBSITE AT www.nationalcitvca.gov ITEM #1 7/3/12 APPROVAL OF THE MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION - HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY OF JUNE 19, 2012 (CITY CLERK) ITEM #2 7/3/12 OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax To: Honorable Mayor and Council From: Michael R. Dalla, City Clerk Subject: Ordinance Introduction and Adoption It is recommended that the City Council approve the following motion as part of the Consent Calendar. "That the City Council waive reading of the text of all Ordinances considered at this meeting and provide that such Ordinances shall be introduced and/or adopted after a reading of only the title." CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 3 EM TITLE: Resolution of the City Council of National City accepting the final contract amount of $148,514.38 with Black Rock Construction Company, authorizing the release of retention and ratify the filing of the Notice of completion for the construction of the Concrete Improvement Project FY 2011-12, Specification 11-06 (Funded CDBG & Gas Tax Funds funds) PREPARED BY: Barby Tipton PHONE: 336-4583 EXPLANATION: See attached DEPARTMENT: Development ServiceEngineering -vision APPROVED BY: FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: Retention is encumbered on Purchase Order 75337 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD 1 COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Final Contract Balance 3. Copy of Notice of Completion 4. Resolution The City filed a Notice of Completion accepting the work for the Concrete Improvement Projects, Specification No. 11-06 and is seeking ratification of such, requesting authorization to release retention and accept the final contract amount of $148,514.38 with Black Rock Construction Company. Council awarded a contract to Black Rock Construction Company in the not to exceed amount of $145,797.50 that includes Change Order 1 in the amount of $56,000 to add an estimated 32 ADA pedestrian ramps due to the excellent bid prices. Change Order 2 removed and replaced the existing driveway on C Avenue at the National City Fire Station #34. This change order added an 8" 5,000 PSI concrete driveway reinforced with rebar for a total amount of $8,950. Change Order 3 added two additional pedestrian ramps with the not to exceed amount of $9,600. There were several line item changes as outlined in the Final Contract Balance (attached). As a result of the above changes, the contract price is adjusted to $148,514.38. Staff recommends that Council accept the work, authorize the release of retention and ratify the filing of the Notice of complete. RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ACCEPTING THE WORK PERFORMED BY BLACK ROCK CONSTRUCTION COMPANY FOR THE TOTAL FINAL AMOUNT OF $148,514.38, RATIFYING THE NOTICE OF COMPLETION FILED WITH THE COUNTY RECORDER ON JUNE, 21, 2012, FOR THE CONSTRUCTION OF THE NATIONAL CITY CONCRETE IMPROVEMENT PROJECT, AND AUTHORIZING THE RELEASE OF THE RETENTION IN THE AMOUNT OF $13,793.13 BE IT RESOLVED by the City Council of the City of National City as follows: It appearing to the satisfaction of the Engineering Division that all work required to be done by Black Rock Construction Company for the total final amount of $148,514.38, for the construction of the National City Concrete Improvement Project has been completed, the City Council of National City hereby accepts said work, ratifies the Notice of Completion filed with the County Recorder on June, 21, 2012, and orders that payment for said work be made in accordance with said contract, including release of the retention in the amount of $13,793.13. PASSED and ADOPTED this 3rd day of July, 2012. ATTEST: Michael R. Della, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney Ron Morrison, Mayor FINAL CONTRACT BALANCE DATE: June 6, 2012 PROJECT: National City Concrete Improvements Project FY 11-12, Specification No. 11-06 TO: Black Rock Construction Company, Inc. 282 N. St. Crispen Brea, CA 92821 ORIGINAL CONTRACT AMOUNT: START DATE: COMPLETION DATE: ORIGINAL CONTRACT LENGTH: EXTENTION OF WORK DAYS: TOTAL CONTRACT TIME: DESCRIPTION: $89,797.00 January 3, 2012 April 27, 2012 (includes downtime due to multiple change orders, correctional work, clean-up, inspection, and document delays) 20 working days 60 working days 80 working days This Final Contract Balance reports final line item amounts and summarizes all change order to produce a final contract amount. Please see Attachment "A" to this Final Contract Balance. CHANGE ORDERS AND LINE ITEM ADJUSTMENTS: Change Order #1 amended a typographical error in the bid documents that listed the unit bid for ADA pedestrian ramps as "SF", (per square foot), instead of "EA" (for each). The bidding contractors were aware of the error but had to bid the line item for the project as presented due to time constraints. Prices received for the "square foot price" were consistent with the industry for a square foot price of ADA pedestrian ramp. The low -bid Contractor's bid for this line item was $20.00 per square foot. An expected bid price for "each" pedestrian ramp would be between $1,500-$2,000. The City wished to install 24 pedestrian ramps instead of 24 square feet of pedestrian ramp. This Change Order added 2,800 square feet of pedestrian ramps at the line item price for a total amount of $56,000.00. Change Order #2 removed and replaced the existing driveway at the National City Fire Station located on C Avenue, north of l6th Street, due to the damaged condition of the 1 FINAL CONTRACT BALANCE National City Concrete Improvements Project FY 11-12 Specification No. 11-06 driveway. This Change Order added an 8" 5000 PSI concrete driveway with rebar and additional sub -grade for the total amount of $8,950.00. Change Order #3 added two additional Pedestrian Ramps per G-28, G-29, or G-31 with Truncated Domes (G-30) at the southwest and northwest corners of 17th Avenue and B Street for the total amount of $7,560.00. Line Item Change No. 1 added 227.5 square feet of "Remove and replace PCC sidewalk (G-7)" for an increase in the total amount of the line item of $1,535.63. Line Item Change No. 2 subtracted 24 square feet of "Remove and replace pedestrians ramps per G-28, G-29, or G-31 with t,-.,_r :._,ted _. r___ (G-30)" pursuant to Change Order #1 for a decrease in the total amount of the line item of $480.00. Line Item Change No. 3 subtracted 89 square feet of "Remove and replace driveway apron (G-14)" for a decrease in the total amount of the line item of $778.75. Line Item Change No. 4 added 134 lineal feet of "Remove and replace (in -kind) curb and gutter (Modified G-2) or curb only (G-1)" for an increase in the total amount of the line item of $5,360.00. Line Item Change No. 5 added 30 lineal feet of "Remove and replace curb only (G-1)" for an increase in the total amount of the line item of $900.00. Line Item Change No. 6 subtracted 1 "Remove and stump trees, re -grade" for a decrease in the total amount of the line item of $500.00. Line ltem Change No. 7 added 3 "Preserve historic stamps in concrete" for an increase in ih ioial amount of the line item of S750.00. Line Item Change No. 8 subtracted 50 tons of "Remove and replace unsuitable subgrade with crushed aggregate base (CAB)" for a decrease in the total amount of the line item of $4,250.00. Line Item Change No. 9 subtracted 56 square feet of "Remove and replace alley apron (G-17)" for a decrease in the total amount of the line item of $490.00. Line Item Change No. 10 subtracted 90 tons of "Variable thickness asphalt concrete" for a decrease in the total amount of the line item of $13,500. Line Item Change No. 11 subtracted 40 lineal feet of "Install root barriers" for a decrease in the total amount of the line item of $400.00. Page 2 2 FINAL CONTRACT BALANCE National City Concrete Improvements Project FY 11-12 Specification No. 11-06 Therefore, the original construction bid price, including change orders, of $162,307.50 was decreased by $13,793.13 based on actual construction completed_ CONTRACT ADJUSTMENT: As a result of the above change orders, the contract price is adjusted as follows: I. The final contract price is adjusted to $148,514.38. 2. As a result of the satisfactory completion of said project, a retention amount of $13,793.12 is set for invoice processing and payment upon the receipt of required signatures and City Council's ratification of this agreement and the Notice of Completion. This document and its purpose to balance payment shall be considered full compensation for furnishing and installing the materials, labor, tools and equipment, profit, overhead, and all incidentals for performing the work described above. Black Rock Construction Company, Inc. will not be entitled to damages or additional payment for delays as described in the 2010 edition of the Standard Specifications for Public Works Construction, Section 6-6.3, for performing the work as described above. Page 3 3 National City Concrete Improvements Project FY 11-12 Specification #11-06 FINAL CONTRACT BALANCE, Attachment "A" No. Line Items Unit Bid Qty Unit Price Bid Amount Actual Qty Unit Price Actual Amount Delta 1 Remove and replace PCC sidewalk (G-7) SF 8,000 6.75 54,000.0E 8227.5 55,535.63 55,535.63 1,535.63 2 Remove and replace pedestrians ramps per G-28, G-29, or G- 31 with truncated domes (G-30) SF 24 20.00 480.00 0 - - (480.00) (778.75) 3 Remove and replace driveway apron (G-14) SF 692 8.75 6,055.00 603 5,276.25 5,276.25 4 Remove and replace (in -kind) curb and gutter (Modified G-2) or curb only (G-1) LF 65 40.00 2,600.00 199 7,960.0E 7,960.00 5,360.00 5 Remove and replace curb only (G-1) LF 98 30.00 2,940.00 128 3,840.00 3,840.00 900.00 6 Remove and stumpe trees, re grade EA 4 500.00 2,000.00 3 1,500.00 1,500.00 (500.00) 450.00 7 Preserve historic stamps in concrete EA 2 150.00 300.00 5 750.00 750.00 8 Remove and replace unsuitable subgrade with crushed aggregate base (CAB) TON 50 85.00 4,250.00 0 - - (4,250.00) 9 Remove and replace alley apron (G-17) SF 374 8.75 3,272.50 318 2,782.50 2,782.50 (490.00) 10 Variable thickness asphalt concrete TON 90 150.00 13,500.00 0 - - (13,500.00) (400,00) - 11 Install root barriers LF 40 10.00 400.00 0 - - Change Orders 1 Remove and replace pedestrians ramps per G-28, G-26. or G- 31 with truncated domes (G-30) SF 2,800 20.00 56,000.00 27'18 54,360.00 54,360.00 (1,640.00 2 Remove and replace driveway at Fire Station LS 1 8,950.00 8,950.00 1 8,950.00 8,950.00 - 3 Pedestrian Ram•s at 17th/B SF 378 20.00 7,560.00 378 7,560 00 7,560.00 - TOTALS: 148,514.38 (13,793.12) PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: CITY CLERK OF NATIONAL CITY 1243 National City Blvd. National City, CA 91950 ND WHEN RECORDED MAIL TO: CITY CLERK OF NATIONAL CITY 1243 National City Blvd. National City, CA 91950 THE ORIGINAL OF THIS DOCUMENT WAS RECORDED ON JIJN 21, 2012 DOCUMENT NUMBER 2012-0362103 Ernest J. Dronenburg, Jr, COUNTY RECORDER SAN DIEGO COUNT`( RECORDER'S OFFICE TIME- 10:10 AM (Note: This document is recorded on behalf of the City of National City, a municipal corporation, and is exempt from Recorder's fees pursuant to Government Code Section 27383) NOTICE Oh COMPLETION: National City Concrete Improvements Project, Specification No. 11-06 (Please fill in document title(s) on this line) THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) 5 RECORDING REQUESTED BY WHEN RECORDED MAIL TO: NAME: CITY OF NATIONAL CITY ADDRESS: 1243 NATIONAL CITY BOULEVARD NATIONAL CITY, CA 91950 NOTICE OF COMPLETION CALIFORNIA CIVIL CODE SECTION 3093 NOTICE IS HEREBY GIVEN of the completion on June 7, 2012, 2012 of the National City Concrete Improvements Project, Specification No. I 1-06 Work of improvement or portion of work of improvement under construction or alteration Various locations in National City, Ca 91950 Street Address City State Zip Code The undersigned owns the following interest or estate in said property: Owner in fee Nature of the interest or estate of owner (mortgagor, lessee, etc.) Said work of improvement was performed on the property pursuant to a contract with Black Rock Construction Name of Original Contractor The following work and material were supplied: Labor provided: General Laborer. Materials: Concrete, traffic control supplies:Equipment: bobcat. General statement of kind of labor, services, equipment or materials The names and addresses ofco-owners are: N/A Dated: June 7, 2012; s, tenants in common, or other owners Signature of Owner City of National City, 1243 National City Blvd., National City, CA 91950 an:, thereof; the same is true of my own knowledge I declare under penalty of perjury that the forgoing is true and correct. Executed on JupV2012_at, National City, California_ Signature: RON MORRISON, MAYOR O6 6 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 4 EM TITLE: Resolution of the City Council of the City of National City accepting a $500,000 Federal Safe Routes to School Grant to deliver a Citywide Safe Routes to School Education and Encouragement Sustainability Program, appropriate funds, and award a contract to Rady Children's Hospital -San Diego in the not -to -exceed amount of $500,000 to assist staff with program delivery (contract to be funded in full by the SRTS grant) PREPARED BY: Stephen Manganiello, City Engineer PHONE: 619-336-4382 EXPLANATION: See attached. DEPARTMENT: APPROVED BY: Development Services / Engineering FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: APPROVED: Finance MIS Funds are available in Account 323-409-500-598-9069 (SRTS Education & Encouragement Program) in the amount of $500,000. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: xplanation esolution 3. Agreement Explanation On June 21, 2011, via City Council Resolution 2011-126, City Council authorized staff to submit a Federal Safe Routes to School grant application for a Citywide Safe Routes to School Education and Encouragement Sustainability Program in the amount of $500,000, committed to an "in -kind" local match of $100,000, and approved a partnership with Rady Children's Hospital -San Diego for program delivery. In October 2011, Caltrans awarded the grant to the City of National City for the full amount of $500,000. The $100,000 "in -kind" local match will be supported by City staff time spent on program delivery, which will occur at all 10 National City elementary schools over the next five years. This grant will build upon previous Safe Routes to School efforts to enhance safety along walking routes between schools and feeder neighborhoods, educate students and parents about traffic safety, expand the volunteer "Parent Patrol" program, and encourage more students to walk to school. Rady Children's Hospital San Diego Center for Healthier Communities assisted staff with preparation of the successful grant application and has agreed to partner with the City for program delivery. A formal professional services agreement and scope of services is attached. Rady Children's Hospital -San Diego is a local non-profit organization committed to providing community -based programs to address the cause of injuries to children and implement programs to enhance safety (see attachment for additional background). Since 2000 The Center for Healthier Communities at Rady Children's Hospital has participated in Safe Routes to School programming in communities demonstrating a desire to enhance safety. In 2006, Rady Children's Hospital partnered with the City of San Diego and was awarded a Federal SRTS grant to implement a Safe Routes to School Program in all 26 elementary schools in Southeasternern San Diego (District 4). Staff recommendation to City Council is to accept the $500,000 Federal Safe Routes to School Grant to deliver a Citywide Safe Routes to School Education and Encouragement Sustainability Program, appropriate funds, and award a contract to Rady Children's Hospital -San Diego in the not -to -exceed amount of $500,000 to assist staff with program delivery (contract to be funded in full by the SRTS grant). RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ACCEPTING A $500,000 FEDERAL SAFE ROUTES TO SCHOOL GRANT TO DELIVER A CITYWIDE SAFE ROUTES TO SCHOOL EDUCATION AND ENCOURAGEMENT SUSTAINABILITY PROGRAM, AUTHORIZING THE APPROPRIATION OF APPROPRIATE FUNDS, AND AWARDING A CONTRACT TO RADY'S CHILDREN'S HOSPITAL-SAN DIEGO FOR THE NOT TO EXCEED AMOUNT OF $500,000 TO ASSIST CITY STAFF WITH PROGRAM DELIVERY WHEREAS, on June 21, 2011, the City Council adopted Resolution 2011-126, authorizing staff to submit a Federal Safe Routes to School grant application for a Citywide Safe Routes to School Education and Encouragement Sustainability Program in the amount of $500,000, committing to an "in -kind" local match of $100,000, and approving a partnership with Rady Children's Hospital -San Diego for program delivery; and WHEREAS, In October 2011, Caltrans awarded the grant to the City of National City for the full amount of $500,000; and WHEREAS, the $100,000 "in -kind" local match will be supported by City staff time spent on program delivery, which will occur at all 10 National City elementary schools over the next five years; and WHEREAS, this grant will build upon previous Safe Routes to School efforts to enhance safety along walking routes between schools and feeder neighborhoods, educate students and parents about traffic safety, expand the volunteer "Parent Patrol" program, and encourage more students to walk to school; and WHEREAS, Rady Children's Hospital San Diego Center for Healthier Communities assisted staff with preparation of the successful grant application and has agreed to partner with the City for program delivery; and WHEREAS, Rady Children's Hospital -San Diego is a local non-profit organization committed to providing community -based programs to address the cause of injuries to children and implement programs to enhance safety; and WHEREAS, to implement the Citywide Safe Routes to School Education and Encouragement Sustainability Program, the City must accept the $500,000 Federal Safe Routes to School Grant, appropriate the funds, and award a contract to Rady Children's Hospital -San Diego in the not -to -exceed amount of $500,000 to assist staff with program delivery. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby accepts the $500,000 Federal Safe Routes to School grant to deliver a Citywide Safe Routes to School Education and Encouragement sustainability Program, and appropriates $100,000 of "in -kind" local match via City staff time. BE IT FURTHER RESOLVED that the City Council hereby authorizes the Mayor to execute a contract with Rady Children's Hospital -San Diego for the not to exceed amount of $500,000 to assist City staff with program delivery. --- Signature Page to Follow --- Resolution No. 2012 — Page Two PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney SAFE ROUTES TO SCHOOL AGREEMENT BETWEEN CITY OF NATIONAL CITY AND RADY CHILDREN'S HOSPITAL — SAN DIEGO THIS AGREEMENT is entered into this 3`d day of July, 2012, by and between THE CITY OF NATIONAL CITY, a municipal corporation ("City") and RADY CHILDREN'S HOSPITAL — SAN DIEGO, a California Non -Profit Public Benefit Corporation ("Contractor"), and is made with reference to the following: RECITALS WHEREAS, the City requires community planning for the Safe Routes to School project to reduce the number of pedestrian injuries; and and WHEREAS, City forces are presently unable to adequately provide the required service; WHEREAS, City has been awarded a Federal Safe Routes to School grant in the amount of $500,000; and, WHEREAS, City, through Engineering — Development Services Department ("Department"), will administer the services for the Safe Routes to School grant awarded to the City; and, WHEREAS, the City and Contractor wish to partner for Project delivery and City Council has approved said partnership with Resolution No. 2011-126 (attached hereto as Exhibit A); and, WHEREAS, Contractor is a qualified not -for -profit organization under Section 501(c)(3) of tile hiternal Revenue Code as defined by Municipal Code Section 22.3003 authorized to execute agreements for furnishing its services to any non-profit organization, and through its Center for Healthier Communities program ("CHC") has the expertise, experience, and personnel necessary to provide services in accordance with this Agreement, and as set forth in the cycle 3 SRTS Application Non -Infrastructure Activity Worksheet (attached hereto as Exhibit B); NOW, THEREFORE, in consideration of the above recitals and the mutual covenants and conditions contained in this Agreement, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Contractor and City agree as follows: AGREEMENT The above -listed recitals are true and correct and are hereby incorporated by reference. Section 1. Contractor Services 1.1 Scope of Service. The Contractor, through its Center for Healthier Communities, will initiate and guide the Safe Routes to School coalition, monitor and evaluate the program activities, liaison with Department, provide fiscal oversight, budget and contract monitoring/management, provide technical assistance for the events and educational programs, conduct data analysis, facilitate child and parent educational assemblies, develop educational materials and evaluation tools, facilitate school steering committees, collect data (before/after surveys, walk -ability surveys), and liaison with community and neighborhood councils as set tbrth in the Non -Infrastructure Activity Worksheet (Exhibit B) ("Sate Route Services"). The Safe Route Services shall be provided in accordance with the timeline set forth in Exhibit B. 1.2 Business License. Contractor must possess or shall obtain a business license from National City Finance Departmmem before commencing performance of Safe Route Services. 1.4 Independent Contractor. It is agreed that Contractor is an independent Contractor, and all persons working for or under the direction of Contractor are Contractor's agents, servants and employees, and said persons shall not he deemed agents, servants or employees of City and shall not be entitled to any of the rights, benefits, or privileges of the City's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. Section 2. Obligations of the City 2.1 Assignment Coordination. City shall be responsible for coordinating assignments undertaken pursuant to this Agreement and will provide overall supervision of the progress and performance of this Agreement for City. 2.2 On -site Orientation. City will provide on -site instruction and orientation to Contractor's staff prior to commencement of Safe Route Services, to explain the scope of the services, proper use of tools, technical aspects, safety considerations, and other data necessary for the successful execution of the Safe Route Services. 2.3 Payment by City. City shall pay the Contractor for performance of all Safe Route Services rendered in accordance with this Agreement, including reasonably related expenses, in an amount not to exceed $500,000. The City's obligation to pay Contractor is limited to the amount of the grant award. 2.4 No Further Payment by City. Contractor and City agree that City is not liable for any other costs, including wages, incurred by Contractor in the performance of this Agreement_ 2.6 CalTrans Master Agreement. City shall maintain a CalTrans Master Agreement throughout the duration of this Agreement and any amendments or extensions thereto. City shall notify Contractor immediately upon termination or non -renewal of City's CalTrans Master Agreement. 2 2 Section 3. Term & Termination 3.1 Initial Term. This agreement shall be effective on the date it is executed by the last party to sign the Agreement. and it shall be effective for a period of five (5) years unless terminated sooner as set forth in Section 3.2 of this Agreement. 3.2 Termination. 3.2.1 This Agreement may be terminated at any time by the City, with or without cause, by giving Contractor at least thirty (60) days prior written notice. During said 60-day period the Contractor shall perform all services in accordance with this Agreement. 3.2.2 Notwithstanding the foregoing. in the event that either party is in default in the performance of any of its obligations under this Agreement, and the default has not been remedied within thirty (30) days after the date of notice in writing of such default, the party not in default may terminate this Agreement immediately by written notice of termination to the defaulting party. 3.2.3 In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the Contractor, whether paper or electronic, shall immediately become the property of and be delivered to the City, and the Contractor shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the City by the Contractor's breach, if any. Section 4. Manner of Payment 4.1 Invoices. City will make payment within thirty (30) days of receiving and approving a billing statement for the satisfactorily completed Safe Route Services of Contractor. Invoices shall be mailed to the following address: City of National City Engineering Division — Developmental Services Dept. 1243 National City Blvd. National City, CA 9I950 Attention: Stephen Manganiello, City Engineer 4.2 Maintenance of Records. Contractor shall maintain books, records, logs, documents, and other evidence sufficient to record all actions taken with respect to rendering services under this Agreement throughout the performance of services and for three (3) years following completion of services under this Agreement. Contractor further agrees to allow City to inspect, copy and audit such books, records, documents and other evidence at all reasonable times. 3 3 Section 5. Insurance & Indemnification 5.1 Contractor shall maintain: 5.1.1 n If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. 5.1.2 Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). 5.1.3 Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising out -of its operations under this Agreement. 5.1.4 Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of Contractor's employees and employers' liability insurance with limits of at least $1.000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of Safe Route Services under this Agreement. 5.1.5 The aforesaid policies shall constitute primary insurance as to the City, its officers, employees, and volunteers, so that any other policies held by the City shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the City of cancellation or material change. 5.1.6 Said policies, except for the professional liability and workers' compensation policies, shall name the City and its officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. 5.1.7 If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the Contractor shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. 5.1.8 All insurance other than self -insured retentions or captive insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. 4 4 5.1.9 This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the City's Risk Manager. If the Contractor does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the City may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 5.1.10 All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the City. 5.1.11 Insurance certificates must specify certificate holder as: City of National City ATTN: City Attorney's Office 1243 National City Blvd. National City, CA 91950-4301 5.2 Hold Harmless. The parties shall defend, indemnify and hold the other party, its Officers. employees and agents harmless from any liability for damage or claims of same, including but not limited to personal injury, property damage and death, which may arise from the indemnifying party, or such parry's subcontractors, agents or employees' operations under this Agreement. Each party shall cooperate reasonably in the defense of any action, and shall employ competent counsel. Section 6. Miscellaneous 6.1 1 1 Prevailing Wage. If checked, the Contractor is required to comply with Section 1771 of the Labor Code regarding the General Prevailing Wage rates. 6.2 Compliance with Laws. The parties shall comply with all applicable local, state and federal laws and regulations in performing this Agreement. 6.3 Non -Assignment_ The parties shall perform all services required under this Agreement. No part of this Agreement or the services required hereunder may be assigned or subcontracted to any other person or entity without the prior written approval of the other party. 6.4 Equal Opportunity/Non-Discrimination. The parties shall comply with the provisions of Title VII of the Civil Rights Act of 1964 (42 UCS 2000 as amended by the Equal Opportunity Act of March 24, 9172, Public Law No. 92-261) in that it shall not discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment; or discriminate in any way which would deprive or intend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee because of such individual's race, color, religion, sex, national origin, age, handicap, medical condition, or marital status. The parties shall 5 5 ensure that services are provided without regard to race, color, religion, sex, age, or national origin in accordance with Title VII of the Civil Rights Act of 1964. The parties shall comply with Section 503 of the Rehabilitation Act of 1973, as amended (29 UCS 794), pertaining to the prohibition of discrimination against qualified handicapped persons. Required contract laws relative to Equal Employment Opportunity/Affirmative Action are incorporated herein by specific reference to Executive Order 11246, as amended; 41 C.F. R. 60-1.4 (Equal Opportunity Clause); 41 C.P.R. 60-250.4 (Disabled Veteran/Vietnam Veterans); and 41 C.F.R. 60-741.4 (Disabled). Contractor also agrees to comply with 29 C.F.R. part 470 (Notice of Employee Rights Concerning Payment of Union Dues), if applicable. 6.5 Deficit Reduction Act of 2005. City acknowledges that Contractor has a Corporate Compliance Program which includes, but is not limited to, policies pertaining to Section 6032 of the Deficit Reduction Act of 2005. Copies of these policies may be obtained electronically at www.RCHSI).orgicompliance. if City becomes aware of any fraud or abuse in the use of public funds, City will make reasonable efforts to report such abuse pursuant to Contractor's policies. 6.6 Safe Routes to School Grant. The parties acknowledge the work to be performed under this Agreement is being supported by a Cycle 3, Federal Caltrans, Safe Routes to School grant ("Grant"). If applicable, the rules and regulations, terms and conditions governing the Grant are by this reference hereby incorporated into this Agreement. 6.7 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. 6.8 Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. 6.9 No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. 6.10 Exhibits and Schedules. Any Exhibits or Schedules attached hereto are hereby incorporated herein by this reference for all purposes_ 6.11 Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. 6.12 Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. 6 6 6.13 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The parties shall comply with all applicable laws, including federal, state, and local laws, whether now in force or subsequently enacted. 6.14 Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. 6.15 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. 6.16 Construction. The parties acknowledge andagree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting. preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Section 7: Notices 7.1 In all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is deposited in the United States mail, postage paid. Proper notice shall be effective on the date it is mailed, unless provided otherwise in this Agreement. 7.2 For the purpose of this Agreement, unless otherwise agreed in writing, notice to the City shall be addressed to: City of National City Engineering Division — Developmental Services Dept. 1243 National City Blvd. National City, CA 91950 Attention: Stephen Manganiello, City Engineer Notice to the Contractor shall be addressed to: Rady Children's Hospital — San Diego Center for Healthier Communities 3020 Children's Way, MC 5073 San Diego, CA 92123 Attention: Mary Beth Moran, PT. MS, M.Ed. 7 7 IN WITNESS WI ILREOF, this Agreement is executed by CITY and by CONTRACTOR. CONTRACTOR Please check applicable box, and note the number of signatures required: X Corporation (two signatures of corporate officers) Partnership (one signature) Sole Proprietorship (one signature) Signature: Print Name: Mar Signature: Print Name: Roger CI' Roux Title: Senior Vice President/COO Title: Senior Vice President/CFO Company Name: Rabe Children's Hospital — San Diego Address: 3020 Children's Wav, Mail Code 5093, San Diego, CA 92123-4282 Phone: Fax: Email: Taxpayer I.D. #: CITY OF NATIONAL CITY By: Rnp 1vinrricnp Mayor Approved as to Form: By: Claudia G. Silva City Attorney 8 RESOLUTION NO. 2011 — 126 RESOLUTION OF TI IE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE SUBMITTAL OF A FEDERAL SAFE ROUTES TO SCHOOL GRANT APPLICATION FOR A CITYWIDE SAFE ROUTES TO SCHOOL EDUCATION AND ENCOURAGEMENT SUSTAINABILITY PROGRAM IN THE AMOUNT OF $500,000, COMMITTING TO AN 'IN KIND° LOCAL MATCH OF $100,000 FOR A TOTAL PROJECT COST OF $600,000, AND APPROVING THE PARTNERING WITH RADY CHILDREN'S HOSPITAL SAN DIEGO FOR PROGRAM DELIVERY WHEREAS, Rady Children's Hospital is a local non-profit organization committed to providing community -based programs to address the cause of injuries to children and implementing progrars to enhance safety; and WHEREAS, since 2000, Rady Children's Hospital San Diego Center for Healthier Communities has participated in Safe Routes to School ("SRTS") programming in communities demonstrating a desire to enhance safety; and WHEREAS, in 2006, Rady Children's Hospital partnered with the City of San Diego, which resulted in the City of San Diego being awarded a Federal SRTS grant to implement a Safe Routes to School Program in all 26 elementary schools in Southeastern San Diego; and WHEREAS, Rady Children's Hospital San Diego Center for Healthier Communities contacted City staff regarding a Federal SRTS grant opportunity in the amount of $500,000 for a Citywide Safe Routes to School Education and Encouragement Sustainability Program, and is willing to assist staff with preparation of the grant application, and if successful, enter into an agreement with National City for program delivery. It is estimated that the program will be implemented over a four-year period to provide a sustainable education and encouragement program for all 14 schools Citywide; and WHEREAS, the SRTS grant will build upon previous Safe Routes to School efforts to enhance safety along walking routes between schools and feeder neighborhoods, educate students and parents about traffic safety, expand the volunteer "Parent Patrol" , cram, and encourage more students to walk to school. u::u WHEREAS, as part of the grant application, the City is required to commit to an "in -kind" local match of $100,000, for a total program cost of $600,000, and approve a partnership with Rady Children's Hospital San Diego for program delivery. "In -kind" matching funds represent staff time which will be spent working on the project over a four-year period, and would not impact the City financially_ NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the subrnittal of a Federal Safe Routes to School grant application for a Citywide Safe Routes to School Education and Encouragement Sustainability Program in the amount of $500,000 BE IT FURTHER RESOLVED that the City Council commits to an "in -kind" local match of $100,000, for a total project cost of $600,000. Exhibit "A" Passed and adopted by the Council of the City of National City, California, on June 21, 2011 by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Rios, Sotelo-Solis, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICA I BY: RON MORRISON Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California By. Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2011-126 of the City of National City, California, passed and adopted by the Council of said City on —June 21, 2011. City Clerk of the City of National City, California By: - eputy 10 CYCLE 3 SRTS APPLICATION NON -INFRASTRUCTURE ACTIVITY WORKSHEET Add additional rows as necessary to include all activities_ Activity Timeline Responsible Party. Deliverable(s) f t.. R § H }'%p9rs �✓ 3ssy - y�a^ .,.- .c.v ... June -September 2012-2014 (Annual campaign -plan during Summer months when students are out of school, launch in September when students are back in school) RCHSD and National City Police Department Safety Campaign Media campaign Billboards, rack cards distributed, media event (radio TV, print) Conduct Focus Groups with parents and students to drill down into: 1. Survey results 2. Determine appropriate course of action (including appropriate incentive program components) 3. Land Use 4_ Perceptions on Active Trans. rtation December 2012 Park/School Cluster-1 December 2013 Park/School Cluster-2 December 2014 Park/School Cluster-3 (Following each walk audit, 3-4walk audits per year) RCHSD Rosteristgn in sheet for parents and students Minutes from meeting and report summarizing findings School -specific education events for parents/students targeting: _. `:ca1th 2. pedestrian and bicycle safety October 2012/March2013 Park,/School Cluster-1 October 2012March 2014Park/School Cluster-2 • October2014/tvlarch 2015 Park/School Cluster-3 (2 events per year) RCHSD Health educational materials and pedestrian and bicycle safety tool kits Gang Awareness In- service — available to general public, but marketed towards parents at cluster schools September/November 20 12/February/A pril 20 1 3 Park/Schoo 1 Cluster -I September/November 2013/February!April 2014 Park/School Cluster-2 September/November 2014/February/April 2015 Park/School Cluster-3 4 events per ear) RCHSD Presentation made available and sign in sheets showing community engagement .e LItA-:.iett4 C. jyp Exhibit "B" Resolution No. 2011 — 126 Page Two BE IT FURTHER RESOLVED that the City Council hereby approves partnering with Rady Children's Hospital San Diego for delivery of the Citywide Safe Routes to School Education and Encouragement Sustainability Program, should the grant be awarded. PASSED and ADOPTED this 21 st day of June, 2011. ATTEST: Dalla, City Clerk AP ROVED AS TO FORM: CI .ib' . Siva Cit • ttorney Ron Morrison, Mayor 11 Establish Parent Safety Teams, Parent Steering Committees (Parent committee provides guidance with parents and students) Beginning September 2012-June 2013Park/School Cluster-1 Beginning September 2013-June 2014 Park/School Cluster-2 Beginning September 2014-June 2015 Park/School Cluster-3 (Monthly meetings) Project Safe Way (PSW) and RCHSD minutes from team and committee meetings or other tracking/recording method Facilitate School Steering Committee Meetings (Key community leaders that provide guidance on project progress) November 2012/April 2013Park/School Cluster-1 November 2013/April 2014 Park/School Cluster-2 November 2014/April 2015 Park/School Cluster-3 (2 per year) RCHSD Minutes or sign in sheets from meetings Itnplementation of incentive programs (wwwsaveag,allon.org) September -November 2012 Park/School Cluster-1 September -November 2013 Park/School Cluster-2 September -November 2014 Park/School Cluster-3 (Work with one Park/School Cluster per year to develop each school's incentive program) November 2012-2014 (Implement/launch at 3-4 schools per year) RCHSD Participation rates including walking, biking rates. Reports summarizing data on individual and environmental cost savings calculations Walk to School Day 1. Establish advisory committee 2. Assist with planning activities 3. Provide technical assistance July -October 2012- Park/Cluster 1 July -October 2013- Park/Cluster 2 July -October 2014- Park/Cluster 3 - (Assist each school with planning and promoting of Walk to School Day) 1" Wednesday in October 2012-2014 (Attend a Walk to School Day event) RCHSD Sign up sheet: school assembly, -community engagement Provide promotional assistance i.e. template letters to parents, fliers, etc. Make announcements at school events Host W2SD planning with community members and key stakeholders (i.e., PD, Councilmember's Youn 's office, etc.) RCHSD Report of identified community based solutions presented to SESD Safety Network Take the lead on facilitating the implementation and enforcement of January 2013- Park/Cluster 1 January 2014- Park/Cluster 2 January 2015- Park/Cluster 3 1,3 community based solutions (3-4 schools per project year - to be held after walk audit and pre -surveys are complete) and to each school Provide technical assistance to the National City's Safe Routes to School Task Force November 2012, FebruaryvMay/August 2013-Park/Cluster 1 November 2013, February/May/August 2014-ParkCluster 2 November 2014, February/May/August 2015-ParkCluster 3 (Quarterly meetings PSW and RCHSD Minutes at each quarterly meeting Provide task force data on the most heavily trafficed pedestrian and bicycle routes to and from each school. *{ax'n Student Walking/Biking Tallies September 2012/June 2013 Park/Cluster I September 2013/June 2014 Park/Cluster 2 September 2014/June 2015 Park/Cluster 3 (Implemented at each school 2 months prior to program delivery and 2 months after completion) RCHSD Data - report Walk Audit November 2012- Park/Cluster 1 November 2013 Park/Cluster 2 November 2014- Park/Cluster 3 jConducted at 3-4 schools per year) RCHSD Data on community concerns to be prioritized at Community Forums Collaborate with school nurses to gathtcr student health data September 2012/June 2013 Park/Cluster 1 September 2013/June 2014 Park/Cluster 2 September 20 14/June 2015 Park/Cluster 3 (Implemented at each school 2 months prior to program delivery and 2 months after completion) RCEISD Provide data on obestity and asthma rates of 1", 3rd and 5"' graders Parent survey administration (Pre -post) October 2012/June 2013 Park/Cluster 1 October 2013/June 2014 Park/Cluster 2 October 2014/June 2015 Park/Cluster 3 (Implemented at 3-4 schools per year) RCHSD Data barriers to walking/biking to and from school, perceptions on safety, potential solutions, etc. Student survey administration (Pre -post) October 2012/June 2013 Park/Cluster 1 October 2013/June 2014 Park/Cluster 2 October 2014/June 2015 Park/Cluster 3 (Implemented at 3-4 schools per year) RCHSD Data on walking rates, barriers to walking!biking to and from school, perceptions on safety, potential solutions, etc. 14 Community Forum December 2012- Parlc/Cluster l December 2013- Park:Cluster 2 1)ecember 2014- Park/Cluster 3 (Implemented at 3-4 schools per year) RCHSD Sign in sheets provided Complete engineering evaluations around perimeters of schools 15 ACC CERTIFICATE OF LIABILITY INSURANCE DATE 6l(1r2M70 Z 1) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERS), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsemenL A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRCDUCER Children's Hospital Insurance Limited Swan Building, 26 Victoria Street P.O. Box HM 2000 Hamilton, Bermuda HM HX INSURED RadyChildren's Hospital and Health Center, et al 3020 Children's Way, MC 5052 San Diego, CA 92123-4282 COVERAGES CONTACT NAME: Dolores Krieger PHONE (Art, NO, EXmy (818) 539-1437 E-MAIL ADDRESS: FAX (A/C, No): (818) 539-1737 INSURERS) AFFORDING COVERAGE COMPANY A: Children's Hospital Ins. Ltd. COMPANY R: NAIC COMPANY C: COMPANY 0: COMPANY E: COMPANY F: CERTIFICATE NUMBER: REVISION NUMBER: THIS INDICATED. CERTIFICATE EXCLUSIONS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW NAVE BEEN SSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. )NSR TYPE OF INSURANCE ADOL SUER POLICY EFF POLICY EXP LTR MISR MU POLICY NUMBER (MWDD/YYYY) (Ht.VDDITYYY1 UMITS A LGENERAL LIABILITY " X I COMMERCIAL GENERAL LIABILITY .,. i X I CLAIMS MADE ( I OCCUR CHL1011-12 t 07/01/11 I 07/01/12 EACH OCCURRENCE $ 1.000,000 DAMAGE TO RENTED PREMISES (Ea orvarence) I $1,000,000 MEDEXP{Any one person) I$- X I MASTER RETRO DATE: 07/01/02 PERSONAL &ADV INJURY 'S1.000,000 GENERAL AGGREGATE 1S 6,000.000 I GENL AGGREGATE LIMIT APPLIES PER PRODUCTS— COMP/OP AGG 1$- I PRO-. , POLICY I JECT 1 LOC ( $ I AUTOMOBILE LIABILITY 1 ' ANY AUTO COMBINED SINGLE LIMIT dEe accident) $ BODILY INJURY (Per person) S ALL OWNED l ISCHEDULED _ __, AUTOS 1 1 AUTOS BODILY INJURY (Per accident) S `1 NON -OWNED i HIRED AUTOS I OPERTY O ttAGE (Per accident) 1AUTOS l I S A UMBRELLA LZAB I I OCCUR CHL2011-12 07/01/11 ! 07/01/12 EACH OCCURRENCE : $ 5,000.000 _ X I EXCESS DAB I X CLAIMS MADE I $ 5,000,000 1 I $ T ' DEE/ I I RETENTION $ _AGGREGATE i WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN 1 ANY PROPRIETOR/PARTNER/EXECUTIVE I I OFFICEPAIEUBER EXCLUDED? ` (Mi:rneator In NH) I Byes, describe under I DESCRIPTION OF OPERATIONS below N N/A I I I WCSTATU- 1 OTH- I TORY LIMITS I EF( ($ EACH ACCIDENT is _EA; E.L. DISEASE — EA EMFLOYEE j $ E.L. DISEASE —POLICY LIMIT 15 A HOSPITAL PROFESSIONAL LIABILITY (CLAIMS MADE) MASTER RETRO DATE: 07/01/02 1 I CHL1011-12 07101/11 07/01/12GENERAL AGGREGATE: (Shared GL aggregate) EACH MEDICAL INCIDENT: 51,500,000 DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES {Attach ACORO 101, Atld.0ona1 Remarks Schedule l more space k mewed) THE CITY OF NATIONAL CITY, ITS ELECTED OFFICIALS, OFFICERS, AGENTS AND EMPLOYEES ARE ADDITIONAL INSUREDS AS REQUIRED BY CONTRACT (TO EXTENT INSURABLE). CERTIFICATE HOLDER CANCELLATION CITY OF NATIONAL CITY CIO CITY ATTORNEYS OFFICE 1243 NATIONAL CITY BLVD. NATIONAL CITY„ CA 91950-4341 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE f ,- JAMES MCLAREN, ARrEX RISK SOLUTIONS (RERMUDA), LTD AS MANAGERS OF CHILDREN' ACORD 25 (2010/05) 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD 16 ENDORSEMENT #2 This endorsement effective July 1 2011 forms part of Policy No,: CHL1011-12 Issued to: RADY CHILDREN'S HOSPITAL AND HEALTH CENTER, ET AL By: CHILDREN'S HOSPITAL INSURANCE LIMITED BLANKET ADDITIONAL INSURED ENDORSEMENT Section II. WHO IS AN INSURED of the HEALTHCARE GENERAL LIABILITY COVERAGE PART is amended by adding the following: P. Any person, organization, trustee or estate to whom you are obligated by written contract to provide Insurance such as Is afforded by this policy, but only with respect to: 1. liability arising out of operations conducted by you or on your behalf; or 2. facilities owned or used by you; And only to the extent that coverage is required by the written contract. Coverage afforded an additional insured pursuant to this endorsement shall in no event be broader than coverage afforded any other Insured under thls policy. Alt other terms, conditions and exclusions of the policy remain unchanged. Signed By: 4 'i /�:, ti Authorized Representative (Date) 2 17 OP ID: KL .ACt_)RD' CERTIFICATE OF LIABILITY INSURANCE DATE (11,1M/DO/YYYY) 06/01/12 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(si. PRODUCER Arthur J. Gallagher & Co. Ins Brokers of CA Inc. 0726293 505 N.Brand Blvd, Suite 600 Glendale, CA 91203-3944 Ronald ikalo INSURED Rady Children's Hospital & Health Center etal 3020 Children's Way MC 5052 San Diego, CA 92123-4282 818-539-2300 818-539-2301 CONTACT NAME: PHONE INC. No. Eat): EMAIL ADDRESS: FAX (AIC. No): PRODUCER CUSTOMER ID e-CHILD.3 INSURER(S) AFFORDING COVERAGE INSURER A: Travelers Property Casualty In INSURER B NAIC t! INSURER C : INSURER D : INSURER E INSURER F COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: TI II^ If. TO CERTIFY THAT TI1E POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED- NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR R TYPE OF INSURANCE ADDL INSR SUER WVD POLICY NUMUER POLICY EFF IMWDD$YYYY) POLICY EXP IMMFDO/YYYYI LIMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY OCCUR EACH OCCURRENCE $ PRI ES(RENTED DAEMAG ET (ER aNTmow) $ __._..__. 1 CLAIMS -MACE MED EXP (My one person) $ PERSONAL&ADV INJURY $ GENERAL AGGREGATE $ GEKL AGGREGATE LIMIT APPLIES PER: POLICY PRO- n JF(T LOC PRODUCTS - COMP/OP AGG $ $ A AUTOMOBILE LIABILITY ANY AUTO A BODILY INJURY (Pg person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ $ UMBRELLA LIAR EXCESS OAFS OCCUR CLAIMS -MADE EACH OCCURRENCE 3 AGGREGATE $ DEDUCTIBLE RETENTION 3 1 - $ A WORKERS COMPENSATION AND EMPLOYERS' UABILITY ANY PROPRIETORIPARTNERIEXECUTIV-Y/N OFFICERAIEMBEREXCIUDEO? (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS N/A TC2JUB419J960811 11/01/11 11/01/12 X WC STATU- I I OTH TORY LIMITS 1 ER E.L EACH ACCIDENT $ 1,000,000 I I E.L DISEASE - EA EMPLOYEE $ 1,000,000 below E.L. DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS r VEHICLES (Attach ACORD 101, Additional Rama Ms Schedule N more space Is required) The City of National City, its elected off vials, offcers, agents, and employees are added as additional insl reds on the auto policy per form #CAT353. A waiver of subrogation in favor of the city is included per form#WC990376. CERTIFICATE HOLDER CANCELLATION City of National City clo City Attorneys Office 1243 National City Blvd. National Clty„ CA 91950-4301 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2009/09) 01988-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD 18 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS AUTO EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modi- fied by the endorsement. GENERAL DESCRIPTION OF COVERAGE — This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general cover- age description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this en- dorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered. A. BROAD FORM NAMED INSURED B. BLANKET ADDITIONAL INSURED C. EMPLOYEE HIRED AUTO D. EMPLOYEES AS INSURED E. SUPPLEMENTARY PAYMENTS —INCREASED LIMITS F. HIRED AUTO — LIMITED WORLDWIDE COVERAGE — INDEMNITY BASIS G. WAIVER OF DEDUCTIBLE — GLASS PROVISIONS A. BROAD FORM NAMED INSURED The following is added to Paragraph A.1., Who Is An Insured, of SECTION II — LIABILITY COV- ERAGE: Any organization you newly acquire or form dur- ing the policy period over which you maintain 50% or more ownership interest and that is not separately insured for Business Auto Coverage. Coverage under this provision is afforded only un- til the 180th day after you acquire or form the or- ganization or the end of the policy period, which- ever is earlier. B. BLANKET ADDITIONAL INSURED The following is added to Paragraph c. in A.1., Who Is An Insured, of SECTION II — LIABILITY COVERAGE: Any person or organization who is required under a written contract or agreement between you and that person or organization, that is signed and CA T3 53 03 10 H. 1. J. K. L. M. HIRED AUTO PHYSICAL DAMAGE — LOSS OF USE — INCREASED LIMIT PHYSICAL DAMAGE — TRANSPORTATION EXPENSES — INCREASED LIMIT PERSONAL EFFECTS AIRBAGS NOTICE AND KNOWLEDGE OF ACCIDENT OR LOSS BLANKET WAIVER OF SUBROGATION N. UNINTENTIONAL ERRORS OR OMISSIONS executed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to be named as an addi- tional insured is an "insured" for Liability Cover- age, but only for damages to which this insurance applies and only to the extent that person or or- ganization qualifies as an "insured" under the Who Is An Insured provision contained in Section II. C. EMPLOYEE HIRED AUTO 1. The following is added to Paragraph A.1., Who Is An Insured, of SECTION II — LI- ABILITY COVERAGE: An "employee" of yours is an "insured" while operating an "auto" hired or rented under a contract or agreement in that "employee's" name, with your permission, while performing duties related to the conduct of your busi- • ness. ® 2010 The Travelers Indemnity Company. Page 1 of 4 Includes copyrighted material of Insurance Services Office. Inc. with its permission. 19 TRAVELERS ONE TOWER SQUARE HARTFORD, CT 06183 WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 99 03 76 ( A)- 001 POLICY NUMBER: (TC2JUH-419J960-B-11) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA (BLANKET WAIVER) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. The additional premium for this endorsement shall be 0.00 % of the California workers' compensation pre- mium. Schedule Person or Organization Job Description ANY PERSON OR ORGANIZATION FOR WHICH THE NAMED INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement Is issued subsequent to preparation of the policy.) Endorsement Effective Policy No. Endorsement No. Insured - Premium Insurance Company Countersigned by DATE OF ISSUE: 11-10-11 ST ASSIGN: Page 1 of 1 20 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 5 EM TITLE: Resolution of the City Council of the City of National City to approve, accept, and file with the County Recorder a modified Subdivision Map for Harborview Condominiums located at 819 D Avenue (Case File 2011-26 S) PREPARED BY: Barby Tipton DEPARTMENT: Engineering. PHONE: 336-4583 APPROVED BY: EXPLANATION: 819 D Avenue, LLC. a California Limited Liability Company, the owners of the condominium building located at the southeast corner of East 8th Street and D Avenue, have submitted a Final Map for the City Council's approval, acceptance, and filing with the County Recorder. The Final Map would modify an existing map filed for the property. The original recorded Final Map specifically allowed 75 dwelling units and 7 commercial suites, for a total of 82 units. The map was modified to allow 81 residential units and one commercial unit, also for a total of 82 units. The building is currently mostly occupied. The Planning Commission reviewed and recommended approval of the Tentative Subdivision Map at their meeting of November 7, 2011. The Council approved the Tentative Subdivision Map on December 6, 2011 (Resolution No. 2011-264). e Engineering and Planning Departments have reviewed and approved the Final Map. FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Subdivision Map Resolution RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY TO APPROVE, ACCEPT AND RECORD A MODIFIED FINAL SUBDIVISION MAP WITH THE COUNTY RECORDER FOR HARBOR VIEW CONDOMINIUMS LOCATED ON THE SOUTHEAST CORNER OF EAST 8TH STREET AND "D" AVENUE, AT 819 "D" STREET WHEREAS, at a regular meeting of the City Council held on December 6, 2011, the City Council adopted Resolution No. 2011-264, approving the tentative subdivision map for Harborview Condominiums located on the southeast corner of East 8th Street and "D" Avenue; and WHEREAS, the original recorded Final Map specifically allowed 75 dwelling units and seven commercial suites, for a total of 82 units; and WHEREAS, the owners of the condominium building, 819 D Avenue, LLC, have submitted a modified Final Map that specifies 81 residential units and one commercial unit, also for a total of 82 units, which has been reviewed and approved by the Engineering and Planning Departments. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the modified Final Subdivision Map for Harborview Condominiums located on the southeast corner of East 8th Street and "D" Avenue, specifically, 819 "D" Avenue, is hereby approved. BE IT FURTHER RESOLVED, that the Mayor, City Clerk and City Engineer are hereby authorized and directed to file said modified final subdivision map with the County Recorder. PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney OWNER'S STATEMENT. wE HEREBY STATE THAT wE ARE THE OWNERS OF. 0R ARE INTERESTED IN. ME 'AND SUBDIVIO((0 BY T1n5 MAP, AN0 RE CONSENT TO THE PREPARATION AND RECORDATION OF THIS MAP CONSISTING OF 2 SHEETS AND DESCRBEO IN THE CAPTION THEREOF CONDOMINIUM STATEMENT; THIS SI/PO. 1510N 15 A CON00NINIUM PROJECT AS DEFINED IN NE Li(71CN 1351 OF ME CINL CEDE OF 714E S1412 DF CALIFORNIA COYINNIG A MAXIMUM OF -51. DMCWNG UNITS, 1 C044ERCAL LH11 AND IS FLED RV/MAW TO ME SUBDIM5ICN MAT' ACT, 819 0 AVENUE. .LC.. A CALIFORNIA LIMITED LIAB'LITY COMPANY BY. ANDREW HE.O. PRESIDENT DA I, BENEFICIARY STATEMENT; BANK OF AMERICA, N.A„ A5 BENEF LIARY OF DEED CF TRUST RELOADED JUKE 3, 2011, A5 IN5TRUMERI N0. 2011-0284729 OF OFF3OAL RECORDS, 8Y, DATE SHANE E WHITSON STATE OE INDIANA Ass COUNTY OF HAM1_TON ON 2012 BE.°ORE ME NOTARY PUBLIC, PERSONALLY 4 11(49EO wH0 PROVED TO ME ON THE BASS Os SATISFACTORY D0DENCE TO BE THE PERSON(S) WHOSE NAME(S; IS / ARE 5uB5CR8CD TO THE MINN INSTRUMENT AND ACKNO4LE0CE0 TO ME THAT nC / SHE / THEY ERECJ'ED THE SAME IN HIS / HER / THEIR AUTHORIZED DAPACI'Y(IES), AND BY HIS / HER / THEIR SIONAPJRE(S) ON 51 INSTRUMENT THE PERSON(S), 0R THE ENTITY UPON BEHALF OF WHICH THE RERSON(5) AC1E0, EXECUTED THE INSTPUMEN'. CERTIF., UNDER PENALTY GF PERJURY UNDER 1n[ LAWS OF THE STATE OF INDIANA THAT THE FOREGOING PARAGRAPH 15 TRUE AND CORRECT w11NES13 MY HAND AND OFFICIAL SEAL PLEASE PRIN1 NAME. PRINCIPAL PLACE OF BUSINESS. COuTry COMMISSION 50311 ATIOY DATE S1A'E OF INDIANA /199 COUNTY OF MARICN ON 20'2 BEFORE ME, NOTARY PUBLIC, PERSONALLY APPEARED wH0 PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE 1HE PERSON(5) w4OSE NAME(5) 15 / ARE SUBSCRIBED 10 THE MTHN NSTRUMEN1 AN0 ACKNOwLE00ED TO ME THAT HE / SHE / THEY Ex0Cl.1ED THE SAME IN H15 / HER / THEIR AMIHORI2EC CAP4CITYDES), ANO BY HIS / HER / THEIR RONAN/RE(SM ON THE IBSTR'JMENT THE PERSDN(5), OR THE ENTITY UPON BEHALF OF WHICH 1HE PERSON(S) ACTED. EXECUTED THE INSTRUMENT. CERTIFY UNDER PENALTY OF PERJURY UNDER THE LAWS CF THE STATE OF INDIANA THAT THE FOREGOING PARAGRAPH IS 1RU0 AND CORRECT. n1TNC5S MY HAND AND °FFICUL SEAL PLEASE PRINT NAME'. PRINOPAL PLACE OF BUSINESS: COUNT,' CCMMISS'ON ExPIRA110N DATE MAP \ O. HARI;? OR VIEW CONDOMINIUMS CASE FILE NO. 201 1-26-S IN THE CITY OF NATIONAL CITY BEING A SUBCPJISION U1 LOT OF HAR80AVEW CCND04INIu4S, M THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF C4LIFORNIA, ACCORDING TO MAP THEREOF N0, 15535, FILED IN THE OFFICE 0° T11E COUNTY RECORDER OF SAY MOD COUNTY, APRIL 5, 2007. SUBDIVISION GUARANTEE FOR 1H15 SUBDIh510N 'URNISHED By FIRS' 'MERICA4 1T1LE COMPANY ORDER ND. CAA-3,355RP DATED; MAY 25 2012, THE SICNAIURE(S) OF THE PARTIES LISTED BELCw 0*NER(5) OF EASEMENTS PER DOCUMENTS N01EC BELOW HAYS BEEN OMITTED UNDER PROVISIONS OF SECTION 66436 SUBSECTION (P)(3)(41)(I) OF THE SUBDIVISION MAP ACT, THERR INTEREST 15 SUCH -HAT IT CANNOT RIPEN INTO A FEE TITLE ANC SAID SIGNATURES ARE NOT REQUIRE() BY T4E GOVERNING 6CDY. 1. S4EE7wA1ER AJ1HOR11Y, A5 SUCCESSOR N INTEREST TO KIMDALL BROTHERS WATER COMPANY AND CALIFORNIA WATER AND TELEPHONE COMPANY RED. I0/14/18691N BOCK 7, PAGE 124 CF OEM wA1ER (ASE4EN1. 2. AN EASEMENT TOR U0,ITY, VALLT/METER ROD. AND ACCESS AND ;NCIJENTAL PURPOSES, RECORDED AUCu51 9, 2CC7 AS INSTALMENT N0 2007-05922,2 OF OFFICIAL RECORDS. Ih FAVOR OF; SAN DIEGO GAS & ELECTRIC COURANT 3 AN EASEMENT RECORDED MAY 13, 2010 AS INSTRUMENT N0. 2010-024'175 OF OFFICIAL RECORDS, Iry FAVOR OF COY COMUUNICAIICN5 SAN DIEGO FOR TELECOMMUNICATION FACILITIES WE, RCN MORR150N, MAYOR AND MICHAEL R DALU, CITY CLERK OF NATIONAL CI'y, CALIFORNIA, HEREBY CERTIFY '1A1 THE CI'Y CCUNCII BY RE50LUION N0. 2011-264 HAS APPROVED 3H15 FINAL MAP CPNSISTNC OF 2 SHEETS AND DESCRIBED IN THE CAPTION THEREOF. BY REIN NORR150N, NAYOR CF DATED NATIONAL OTT, CALIFORNIA MICHAEL R. CA' -LA CITY CLERK 01 NATIONAL CITv, CALIFDRNIA GATED wE, COUNTY "REASURER/140 COLLE:TDR OF THE COUNTY OF SAN 01E00, STATE OF CALMORNIA, AND DIRECTOR OF DEPARTMENT OF PUBLIC wORKS OF SAID COUNTY, HEREBY CERTIFY THAT THERE ARE NO UNPAID SPECIAL ASSESSMENTS DR BONDS WHICH MAY BE RAID IN FULL SHOWN BY THE 80CK5 OF OUR OFFlICE, AGAINST 'HE TRACT 0R SUED. V151GN OR ANY FART HEREOF SHOWN ON THE ANNE0E0 map AND DESCRIBED IN CAPTION THEREOF, SAN M[ALLISTER, COUNTY TREASURER/TAX COLLECTOR 8T'. DATE: OEPol, RICHARD E. CRCMPTON, DIRECTOR OF PUBLIC 'WORKS 8^' DATE FOR 31RESIOR ) SHEET 1 OF 2 SURVEYOR'S STATEMENT• I, MOTOR RODRIGUE2-IERNAN0E2. A PROFESSIONAL UCEYSED LAND SUR.EYOR, OF THE STATE OF CALIFORNIA HERECY STATE THAT THE 9GRoh or THIS SUBDIMSIGN WAS MADE BY ME OR UNDER MY DIRE:11oN BETWEEN 0610BER 2011 AND NOVE4BER 2011 AND 5A10 SURVEY IS TRUE AND CDMPLEII AS SHCMN. THAT ALL MONUMENTS ARE OF THE CHARACTER ANC OCCUP" THE P0S410N5 INDICATED AND ARE SUFFICIENT 10 ENABLE THE SURVEY 10 BE RETRACED; (IF DELAYED MONVMENTS; THAT I Att. SET ALL OTHER MONUMENTS INDICATED BY LEGEND ON SHEET 2 WITHIN 30 DAYS AFTER THE 004PLE70N OF THE REQUIRED IMPROVEMENTS AND 'HER ACCEPTANCE BY THE CITY OF NATIONAL 01Y), 5-23-20)2 \ACTOR RODRIGUEZ-FERNANDE2 DATE, L 5 N0. 5335 SHEETS CITY ENGINEER'S STATEMENT 1 5A'0RNINO T. BASUIL, FOR CITY E6GNEER OF THE cITY OF NATIONAL CITY, CALIFORNIA, STATE THAT . HAVE EXAMINED TH15 MAP; THAT THE SUBDIVISION I5 SUBSTANTIALLY 'HE SAME A5 IT APPEARED CN THE TENTATIVE MAP, IF ANY AND ANT APPROVED ALTERATIONS THEREOF, THAT IT COAAPLIES w11H ME SuB01w510N MAP ACT AND ANY LOO, ORDINANCES APPCCABLE A7 THE TIME or APPROVAL OF THE TENTATIVE MAP AND THAT PM SATISFIED 19AT 'HI$ MAP IS TECHN.CA.LY CORRECT. 94T'JRNIND 7. BASUIL, R.C.E. 3E127, L.S. 5398 HARRIS & A550C1A1ES FOR CITY ENGINEER C4TEI RECORDER'S CERTIFICATE FILE N0. I. ERNEST J. DRONE*'B'JRG JR., RECORDER OF 111E COUNTY OF SAN DIEGO, HEREBY CERTIFY THAT I HAVE ♦C0EPIED FOR RECORDATION THS MAP FILED AT THE REQUEST OF 'ACTOR ROOR'LJE2-1ERNANDE2 THIS DAY OF 2012 AT_ O'CLOCK ERNEST J. DRONENBLPO JR. 0001 TY RE CARDER BY TEE DEPUTY COUNTY RECCROCR JOB N 04-160E VICTOR RODRICUEZ-FERNANDEZ. P.E, PLUS. 4907 MORENA BLVD., STE, 409, S,D, CA. 272117 PIE : (856) 867-6693 FAX. (900) 660-4.348 CALIF, L00RD 'NOD 181-1741 CASE FILE N0. 2011.16-5 MAP �o. \\ VICINITY MAP ( N'0 SC.( ) wt`ApJnCa 16 MOe,�WEMAA P`1 9�alP ip05�1\OJ1 .Y J 1 a \ - '�' s 5- ;� 11- 1'St I\\\1 i . Dy. LlN Cy01EL.A\.,, CI'J. j0N,,i V' \\ \\ I \ \ \ \ \ \ \ \\ \ \ c5 2.a S,'E DSA EO NDAB 'DO, Cp n J � • 0 T s O T 910 .M w AO 1 96 ! �e.:--- ./ 03?� El ( 9 F $ 88'3.1 38' STATION 1238 F0JN0 DISK STAMPED 50 CRY ENCR" N 1,628,982.=56 F 6302,754.2E5 \ A, \z G,SA Sp`pk%,, ,74 i SHEET 2 OF 2 SFEETS BASIS OF BEARINGS THE BASIS OF BEARINGS FOR TH15 FINAL MAP IS THE NAO 83, ZONE 6 CRID BEARING BET1YEE4 STATIONS '1238 AND 1239' I.E. N21106104'W DUO70O BEARINGS FROM REFERENCE MAPS/ OLEOS MAY DF MA7 NOT BE IN TERMS OF SAID SYSTEM. THE COMBINED SCALE FACTOR AT POINT N0 1238 15 1.003C2239 CR,0 D51ANCE=GROUND DISTANCE 0 COMBINED SCALE FACTOR, LEGEND — SUBDIMISICN 8 000.6RY • = F0UN0 5T0 =ELL MONUMENT AS PER NOTED. O FOUND LEAD Y DISK STAMPED 'LS 5335' IN 16 CONCRETE SIOEw6LK OR A -LEY PER NAR 15535 0R AS NOTES. O RECORD NFCRMA7ON PER C., "0312 OF AS NGt20. w 3671 33 5TAD0N 1239 058 OC DISK STAmPED E56,303:R58.57A ✓/ TOTAL N0, OF LOTS, 1 LOT GROSS NET 29, 4, 7s1 29, 4175E 29,4175E 29,4175E SUBTOTAL 0.675 AC 0.675 AC NON—PLOTTABLE EASEMENTS; L SAEE1'A'ATER AOT10R9TY, A5 SUCCESSOR '5 INTEREST TO 9MBALL BROTHERS WATER COMRAN0 AND CALIFORNIA wA1CR Ant TELEPHONE COMPANY REC. 19/14/1863 m BOOK 7, PAGE I'24 Ci CEEOS wATER EASEMENT. 2 SOW uT,LITV EASEMEnT REC, 8/09/200T AS 90500141 4 2007-0522312 CF O.R. 3. AN EASEMENT RECORDED MAY 13, 2010 AS NSTRuk,I:Nt NO. 2010-0241175 or OFFICIAL RECORDS. IN FAVOR OF: COO COMMUNICAT10Y5 SAN CIEGO FOR TELECOMMUNICATION FACILITIES GRAPHIC SCALE 30L C '5 30 60 90 ( IN FEET ) 1 Inch = 30 It JOB p 04-760E VICTOR RODRIGUEZ-FERNA,NDEZ, P.E. P.L.S. 4901 MORENA BLVD„ STE. 409. S.D. Co. 92117 PH.' (858) 9E7-5693 FAX: '760) 660-4848 CALIF E0CR0 INDEX r-1741 CASE FILE N0. 2011-26-5 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT STING DATE: July 3, 2012 AGENDA ITEM NO. 6 ITEM TITLE: !Resolution of the City Council of the City of National City authorizing the Mayor to execute a Second Amendment to the Agreement with the City of Chula Vista for a total not to exceed amount of $326,927 to provide general animal control, shelter, and related administrative services to the residents of National City for an additional one (1) year term tlypugh Fiscal Year 20/2-2013.1 PREPARED BY: Adolfo Gonzales, Chief of Police ((/r 1 DEPARTMENT: Police PHONE: 336-4507 APPROVED BY: EXPLANATION: oG !L z On April 6, 2010, the City Council adopted Resolution No. 2010-54, approving an Agreement with the City of Chula Vista to provide general animal control, shelter and related administrative services for the City of National City. The Agreement included an option to extend the Agreement for four (4) additional one-year terms. This resolution is for the Second Amendment to the Agreement to extend the services provided by the City of Chula Vista through Fiscal Year 2012 — 2013. FINANCIAL STATEMENT: ACCOUNT NO. 001-411-000-261-0000 APPROVED: APPROVED: The cost of this agreement not to exceed $326,927 has been allocated within the police budget ENVIRONMENTAL REVIEW: ,N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt Resolution!, BOARD / COMMISSION RECOMMENDATION: rACHMENTS: Letter From Chula Vista Second Amendment to the Agreement RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A SECOND AMENDMENT TO THE AGREEMENT WITH THE CITY OF CHULA VISTA FOR THE NOT TO EXCEED AMOUNT OF $326,927 TO PROVIDE GENERAL ANIMAL CONTROL, SHELTER, AND RELATED ADMINISTRATIVE SERVICES TO THE CITY OF NATIONAL CITY FOR ONE ADDITIONAL ONE YEAR TERM THROUGH FISCAL YEAR 2012-2013 WHEREAS, on April 6, 2010, the City Council adopted Resolution No. 2010-54, entering into an agreement with the City of Chula Vista ("Chula Vista") whereby Chula Vista will provide animal shelter and control services for the impounding, adoption, redemption, and care and disposition of dogs, cats, and other small animals for the not to exceed amount of $377,730 for fiscal year 2009/2010, with options to extend for four (4) additional one (1) year terms; and WHEREAS, on April 19, 2011, Resolution No. 2011-89, the City Council approved the First Amendment to the Agreement for the total not to exceed amount of $317,733; and WHEREAS, the City of National City and the City of Chula Vista desire to enter into a Second Amendment to the Agreement to extend the services provided by the City of Chula Vista through Fiscal Year 2012-2013, for the total not to exceed amount of $326,927. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the Second Amendment to the Agreement with the City of Chula Vista for general animal control, shelter, and related administrative services for a total not to exceed amount of $326,927 for fiscal year 2012/2013. Said Second Amendment to the Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney SECOND AMENDMENT TO AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND THE CITY OF CHULA VISTA TO PROVIDE GENERAL ANIMAL CARE SERVICES TO THE CITY OF NATIONAL CTTY This Second Amendment to the Agreement is entered into this 1st day of July 2012, by and between the City of Chula Vista, a chartered municipal corporation of the State of California, and the City of National City, a municipal corporation of the State of California ("National City"). The City of Chula Vista and the City of National City may be referred to collectively as "Parties." RECITALS A. The Parties entered into an Agreement on April 6, 2010 (the "Agreement"), wherein the City of Chula Vista agreed to provide animal shelter and control services for the impounding, adoption, redemption, and the care and disposition of dogs, cats, and other small animals for the not to exceed amount of $377,730.00 for Fiscal Year 2010-2011. B. The Agreement allows the City of National City the option to extend the Agreement for one-year terms each fiscal year, up to four such extensions. C. Said Agreement was subsequently amended on April 19, 2011, to extend the term of the Agreement from April 6, 2011 through June 30, 2012, for the not -to -exceed amount of $317,733. D. The Parties now desire to amend the Agreement dated April 6, 2010, to extend the term of the Agreement for an additional year, through Fiscal Year 2012-2013, beginning July 1, 2012 and ending June 30, 2013, for a total not -to -exceed amount of $326,927. NOW, THEREFORE, the Parties agree that the Agreement entered into on the 6th day of April, 2010, shall be amended to extend the term through Fiscal Year 2012-2013, beginning July 1, 2012 and ending June 30, 2013, for the total not -to -exceed amount of $326,927. The parties further agree that with the foregoing exception, each and every term and provision of the Agreement dated April 6, 2010, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY CITY OF CHULA VISTA By: By: Ron Morrison, Mayor Cheryl Cox, Mayor APPROVED AS TO FORM: APPROVED AS TO FORM: Claudia G. Silva City Attorney Glen Googins City Attorney RECEIVED MAY 0 32012 t.i iY Of CHULA Vt 1A OFFICE OF THE CITY MANAGER May 2, 2012 Leslie Deese, City Manager City of National City 1243 National City Boulevard National City, CA 91950 Dear Ms. Deese: The City of Chula Vista and the City of National City entered into a contract for Animal Care Services on April 16, 2010 for one year, with four additional one-year options to extend the contract. For calendar year 2011, the Chula Vista Animal Care Facility took in 7,134 animals. Of these, 1,286 (18.026%) were from the City of National City. The percentage for the City of National City for the previous year was 18.407%. The _City of Chula Vista is proposing to extend this contract for one year to provide kenneling services to the City of National City. The proposal for these services for FY 2012-2013 is $326,927 or $27,244 monthly. Please respond to the City of Chula Vista no later than May 23, 2012 indicating if the City of National City accepts this proposal. Sincerely, G:' Ha •ert Assista t City Manager/Director of Development Services Attachment: 1 276 FOURTH AVENUE • CHULA VISTA • CALIFORNIA 91910 • (619) 691-5031 • FAX (619) 409-5884 og ro.ptcc.orm a..tici.e Pros. Animal Adoption Counselor (6001) Animal Care Assistant (6001) Animal Care Assistant (6001) Animal Care Facility Manager (6001) Animal Control Officer (6001) Office Specialist (6001) Office Specialist (6001) Registered Vet Tech (6001) Registered Vet Tech (6001) Sr Animal Care Assistant (6001) Sr Office Specialist (6001) Veterinarian (6001) Veterinary Assistant (6001) Hourly Wages (6005) National City FTE 2013 Budget Cost Applied 2.00 $98,847 $98,847 4.00 $165,768 $165,768 1.00 $41,403 $41,403 1.00 $103,147 $103,147 4.00 $198,924 $198,924 0.50 $20,332 $20,332 1.00 $40,664 $40,664 1.0D $49,731 $49,731 1.00 $49,683 $49,683 1.00 $47,658 $47,658 0.75 $33,548 $33,548 1.00 $124,711 $82,844 1.00 $41,403 $41,403 $144,973 $131,186 Other Professional Services (6301) Other Contractual Services (6401) Cellular Phone Service (6506) Printing and Binding (6531) Postage (6533) Transportation Allow (6551) Phone Service (6571) Gas and Electric (6572) Water (6574) Maint - Off Equipt (6611) Maint- Other Equipt (6632) Fleet Maint Charges (6641) Office Supplies (6801) Janitorial Supplies (6811) Medical & Lab Supplies (6833) Book, Publications, Maps (6846) Animal & Adoption Supplies (6858) Wearing Apparel (6881) Food Products (6882) Supplies and Services Savings (6889) Matls to Main-Bldgs & Grounds (6911) Credit Card Trans Fee (7021) a TOTAL BUDGET CWOH @ 22.1% of Salaries and Wages TOTAL CHARGEABLE KENNEL COSTS $11,000 $178,000 $2,800 $5,000 $500 $500 $6,603 $45,957 $2,832 $1,814 $500 $32,059 $10,500 $14,500 $161,515 $519 $25,850 $5,072 $42,315 ($7,952) $8,500 $2,500 Kennel 100% 100% 100% 90% 0% 10% 90% 100% 100% 100% 90% 100% 100% 90% $11,00D 100% $172,000 100% $2,800 0% $5,000 $500 $500 $6,603 $45,957 $2,832 $1,814 $500 $32,059 $10,500 $14,500 $155,365 $519 $25,850 $5,072 $42,315 ($7,952) $8,500 $2,500 $2,366,595 $2,2111,595 SUMMARY Kennel @ 18.026% (proportioned based on percentage of animals taken in) Less: Revenue Offset Total Annual Contract Cost 50% % Control 0% 0% 0% 10% 100% 90% 10% 0% 0% 0% 10% 0% 0% 10% 0% 0% 100% 50% 50% 50% 100% 100% 0% 100% 0% 100% 0% 100% 100% 0% 0% 0% 100% 90% 10% Total 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 0% 100% 0% 50% 50% 100% 0% 50% 50% 100% 0% 50% 100% 100% 100% 100% 100% 100% 100% 100% 100% • 100% 100% 100% 100% 100% 100% 100% 100% 100% 0%100% 0% 100% 50% 100% 100% Kennel $98,847 $165,768 $41,403 $92,832 $D $2,033 $36,598 $49,731 $49,683 $47,658 $30,193 $82,844 $41,403 $118,067 100% $11,000 100% $172,000 $0 $2,500 $250 $500 $6,603 $45,957 $2,832 $1,814 $500 $0 $9,450 $14,500 $155,365 $260 $25,850 $2,536 $42,315 ($3,976) $8,500 $2,500 $1,804,198 $189,410 $359,375 $32,447 ;326,927 IFY2013 Monthly Base Rate for National City: 827,243.95 I Note: $85,000 of the operating budget was eliminated from the calculation as it is reimbursed by the County for spay and neuter clinics National City lima! Adoption Counselor (6001) . ,aimal Care Assistant (6001) Animal Care Assistant (6001) Animal Care Facility Manager (6001) Animal Control Officer (6001) Office Specialist (6001) Office Specialist (6001) Registered Vet Tech (6001) Registered Vet Tech (6001) Sr Animal Care Assistant (6001) Sr Office Specialist (6001) Veterinarian (6001) Veterinary Assistant (6001) Hourly Wages (6005) Other Professional Services (6301) Other Contractual Services (6401) Cellular Phone Service (6506) Printing and Binding (6531) Postage (6533) Transportation Allow (6551) Phone Service (6571) Gas and Electric (6572) Water (6574) Maint - Off Equip{ (6611) Maint - Other Equipt (6632) Fleet Maint Charges (6641) ^ffice Supplies (6801) initorial Supplies (6811) edical & Lab Supplies (6833) . Book, Publications, Maps (6846) Animal & Adoption Supplies (6858) Wearing Apparel (6881) Food Products (6882) Supplies and Services Savings (6889) Matls to Main-Bldgs & Grounds (6911) Credit Card Trans Fee (7021) TOTAL BUDGET CWOH @ 22.1% of Salaries and Wages TOTAL CHARGEABLE COSTS Kennel and Control Cost Breakdown FTE 2013 Budget Cost Applied 2.00 $98,847 $98,847 4.00 $165,768 $165,768 1.00 $41,403 $41,403 1.00 $103,147 $103,147 4.00 $198,924 $198,924 0.50 $20,332 $20,332 1.00 $40,664 $40,664 1.00 $49,731 $49,731 1.00 $49,683 $49,683 1.00 $47,658 $47,658 0.75 $33,548 $33,548 1.00 $124,711 $82,844 1.00 $41,403 $41,403 $144,973 $131,186 $11,000 $178,000 $2,800 $5,000 $500 $500 $6,603 $45,957 $2,832 $1,814 $500 $32,059 $10,500 $14,500 $161,515 $519 $25,850 $5,072 $42,315 ($7,952) $8,500 $2,500 $2,366,595 $11,000 $172,000 $2,800 $5,000 $500 $500 $6,603 $45,957 $2,832 $1,B14 $500 $32,059 $10,500 $14,500 $155,365 $519 $25,850 $5,072 $42,315 ($7,952) $8,500 $2,500 $2, 281,595 % Kennel % Control 100% 0% 100% 0% 100% 0% 90% 10% 0% 100% 10% 90% 90% 10% 100% 0% 100% 0% 100% 0% 90% 10% 100% 0% 100% 0% 90% 100% 10% 0% 100% 0% 100% 50% 50% 50% 50% 100% 0% 100% 0% 100% 0% 100% 0% 100% 0% 100% 0% 100% 90% 10% 100% 0% 100% 0% 50% 50% 100% 0% 50% 50% 100% 0% 50% 50% 100% 0% Note: $85,000 of the operating budget was eliminated from the calculation as it is reimbursed by the County for spay and neuter clinics 100% 0% Total 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% Kennet $98,847 $165,768 $41,403 $92,832 $0 $2,033 $36,598 $49,731 $49,683 $47,658 $30,193 $82,844 $41,403 $118,067 $11,000 $172,000 $0 $2,500 $250 $500 $6,603 $45,957 $2,832 $1,814 $500 $0 $9,450 $14,500 $155,365 $260 $25,850 $2,536 $42,315 ($3,976) $8,500 $2,500 $1,804,198 Control $0 $0 $0 $10,315 $198,924 $18,299 $4,066 80 $0 $0 $3,355 $0 $0 $13,119 $0 $0 $2,800 $2,500 $250 $0 $0 $0 $0 $0 80 $32,059 $1,050 $0 $0 $260 $0 $2,536 $0 ($3,976) $0 $0 $477,397 $189,410 $54,825 K 8 C Costs Dntnil City Chula Vista/Other National City Imperial Beach Lemon Grove Total Animals Taken In 4,847 1,286 566 435 7,134 City Chula Vista/Other National City Imperial Beach Lemon Grove Total City Chula Vista/Other National City Imperial Beach Lemon Grove Total Control Cost 532,222 532,222 532,222 532,222 % of Total' 67.942% 18.026% 7.934% 6.098% 100.00% # of FTEs 3.125 0,000 0.800 0.800 4.725 Kennel Control $1,232,206 $379,958 $326,927 $0 $143,869 $76,132 $110,586 $76,132 51,813,608 $532,222 Summary of Cost Kennel Cost $1,993,608 $1,993,608 $1,993,608 $1,993,608 Agency Share of Control Cost $379,958 $0 $76,132 2 $76,132 2 $532,222 Annual Total $1,612,164 $326,927 $220,021 $186,718 $2,345,830 1 Based on calendar year 2011 ratio 2 Salary, citywide overhead, benefits, supplies/services for 0.8 FTE K & C Costs Summary Agency Share of Kennel Cost $1,354,502 $359,375 $158,170 $121,561. $1,993,608 Monthly Total $134,347 $27,244 $18,335 $15,560 $195,486 Revenue Offset $180,000 $180,000 $180,000 $180,000 of Total' 67,942% 18.026% 7.934% 6.098% 100.00% Agency Share of Revenue Offset $122,296 $32,447 $14,281 $10,976 $180,000 Net Kennel Cost $1,232,206 $326,927 $143,889 $110,586 $1,813,608 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 7 411,M TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a First Amendment to the Employment Agreement between the City of National City and City Manager Leslie Deese to set the health care benefit at the same amount as for executive and management employees, with no increase to base salary PREPARED BY: Claudia Gacitua Silva PHONE: X 4222 EXPLANATION: DEPARTMENT: Cit, Att�m e APPROVED BY: The Employment Agreement between the City and City Manager requires a re-openeln salary and benefits if and when managers and executives receive an increase. An increase was approved on June 19, 2012. This Amendment to the Employment Agreement increases the health care benefit to be paid to the City Manager to $1,200 per month, consistent with the increase health care benefit paid to manager and executives. While executives and managers received in increase in base salary, the City Manager did not request an increase to base salary. • FINANCIAL STATEMENT: ACCOUNT NO. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: osed resolution st Amendment to Employment Agreement RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT WITH CITY MANAGER LESLIE DEESE TO SET THE HEALTH CARE BENEFIT AT THE SAME AMOUNT AS FOR EXECUTIVES AND MANAGERS, WITH NO INCREASE TO BASE SALARY WHEREAS, on or about March 6, 2012, the City Council approved an Employment Agreement with City Manager Leslie Deese; and WHEREAS, said Employment Agreement requires a re -opener on salary and benefits if and when executive and management employees receive an increase; and WHEREAS, on June 19, 2012, the City Council adopted Resolution No. 2012- 135, adjusting the City's contribution to employee health care for executive and management employees to $1,200; and WHEREAS, this First Amendment to the Employment Agreement increases the health care benefit to be paid to the City Manager to $1,200 per month, consistent with the increase health care benefit paid to manager and executives. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes the Mayor to execute a First Amendment to Employment Agreement with City Manager Leslie Deese increasing the health care benefit to be paid to the City Manager to $1,200 per month, consistent with the increase health care benefit paid to executive and management employees. Said First Amendment to Employment Agreement is on file in the Office of the City Clerk. PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney FIRST AMENDMENT TO EMPLOYMENT AGREEMENT This First Amendment to Employment Agreement is made and entered into this 3rd day of July, 2012, by and between the City of National City, a municipal corporation (hereinafter called "Employer"), and Leslie Deese, an individual (hereinafter called "Employee"). RECITALS A. Employer and Employee entered into an Employment Agreement (the "Agreement") dated March 6, 2012. B. The Agreement states in Section 3.B. that it "shall be re -opened to discuss compensation and benefits if, and at the time, managers or executives receive any increase in compensation or benefits." C. On June 19, 2012, Employer approved increases to manager and executive compensation and health care benefits. Accordingly, the Agreement is required to be re -opened to discuss compensation and benefits. D. Employee and Employer seek to increase the cafeteria health benefit set forth in Section 4 of the Agreement, consistent with what was approved for executives and managers on June 19, 2012. NOW, THEREFORE, in consideration of the mutual benefit to be desired therefrom, Employer and Employee agree that effective the first full pay period in July 2012, Section 4.A. of the Agreement between the City and City Manager Leslie Deese (the "Agreement") is hereby amended to read as follows: Section 4 Health, Disability and Life Insurance Benefits. A. Employer currently provides Employee a cafeteria health benefit of $850.00 per month. Effective the first full pay period in July 2012, Employer agrees to provide Employee a cafeteria health benefit of $1,200.00 With the foregoing exception, each and every provision of the Employment Agreement dated March 6, 2012, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Employee Agreement on the date and year first written above. CITY OF NATIONAL CITY EMPLOYEE By: Ron Morrison, Mayor Leslie Deese APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 8 EM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a First Amendment to the Employment Agreement between the City of National City and City Attorney Claudia Gacitua Silva to set the health care benefit at the same amount as for executive and management employees, with no increase to base salary PREPARED BY: Leslie Deese DEPARTMENT: City Manager PHONE: X 4242 EXPLANATION: APPROVED The Employment Agreement between the City and City Attorney states that the City Attorney shall receive benefits and compensation as determined and established by City Council resolution for executive employees and the position of City Attorney. An increase for executive employees was approved on June 19, 2012. This First Amendment to the Employment Agreement increases the health care benefit to be paid to the City Attorney to $1,200 per month, consistent with the increase health care benefit paid to manager and executives. While executives and managers received in increase in base salary, the City Attorney did not request an increase to base salary. This First Amendment to Agreement also includes certain language related to abuse of office, which is required pursuant to recent legislation. FINANCIAL STATEMENT: ACCOUNT NO. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: )osed resolution cost Amendment to Employment Agreement RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT WITH CITY ATTORNEY CLAUDIA GACITUA SILVA TO SET THE HEALTH CARE BENEFIT AT THE SAME AMOUNT AS FOR EXECUTIVES AND MANAGERS, WITH NO INCREASE TO BASE SALARY WHEREAS, on or about July 20, 2010, the City Council entered into an Employment Agreement with City Attorney Claudia Gacitua Silva (the "Agreement") and WHEREAS, the Agreement states, in relevant part, at Section B, that "Employee shall receive benefits and other compensation, such as ... health and dental, and any other benefits and compensation, as determined and established by City Council resolution for executive employees and the position of City Attorney"; and WHEREAS, on June 19, 2012, the City Council adopted Resolution No. 2012- 135, adjusting the City's contribution to employee health care for executive and management employees to $1,200; and WHEREAS, the City Council and the City Attorney seek to amend Section B of the Agreement to increase the cafeteria health benefit for the City Attorney to be consistent with the amount approved for executive and management employees; and WHEREAS recent California legislation requires certain language related to abuse of office be included in employment agreements. While the Agreement does contain language referencing felony convictions and misconduct in office, the parties seek to add the following language to Section C.2 of the Agreement, consistent with Government Code section 53243.2: If this Agreement is terminated, any cash settlement related to the termination that Employee may receive from Employer shall be fully reimbursed to the Employer if the Employee is convicted of a crime involving an abuse of her office or position. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby authorizes the Mayor to execute a First Amendment to Employment Agreement with Claudia Gacitua Silva increasing the cafeteria health benefit to be paid to the City Attorney to $1,200 per month, consistent with the increase health care benefit paid to executive and management employees, and Section C.2 is added to the Employment Agreement, consistent with Government Code section 53243.2. Said First Amendment to Employment Agreement is on file in the Office of the City Clerk. --- Signature Page to Follow --- Resolution No. 2012 — Page Two PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalia, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney FIRST AMENDMENT TO EMPLOYMENT AGREEMENT This First Amendment to Employment Agreement is made and entered into this 3rd day of July, 2012, by and between the City of National City, a municipal corporation (hereinafter called "Employer"), and Claudia Gacitua Silva, an individual (hereinafter called "Employee"). RECITALS A. Employer and Employee entered into an Employment Agreement (the "Agreement") dated July 20, 2010. B. The Agreement states, in relevant part, at Section B. that "Employee shall receive benefits and other compensation, such as ... health and dental, and any other benefits and compensation, as determined and established by City Council resolution for executive employees and the position of City Attorney." C. On June 19, 2012, Employer approved increases to manager and executive compensation and health care benefits. D. Employee and Employer seek to increase the cafeteria health benefit set forth in Section B of the Agreement, consistent with what was approved for executives and managers on June 19, 2012. Recent legislation requires certain language related to abuse of office be included in employment agreements. While the Agreement does contain language referencing felony convictions and misconduct in office, the parties seek to add language consistent with Government Code section 53243.2. NOW, THEREFORE, in consideration of the mutual benefit to be desired therefrom, Employer and Employee agree as follows: 1. Effective the first full pay period in July 2012, Section B of the Agreement between the City and City Attorney Claudia Gacitua Silva (the "Agreement") is hereby amended to add the following to the second paragraph of Section B: Section B Compensation Resolution 2012-135, adopted June 19, 2012, increased the health care benefit to executives and managers to $1,200.00 per month. Employer currently provides Employee a health care benefit of $800.00 per month. Effective the first full pay period in July 2012, Employer agrees to provide Employee a cafeteria health benefit of $1,200.00 per month, consistent with executives and managers. 2. The following shall be added to Section C.2 of the Agreement: If this Agreement is terminated, any cash settlement related to the termination that Employee may receive from Employer shall be fully reimbursed to the Employer if the Employee is convicted of a crime involving an abuse of her office or position. With the foregoing exception, each and every provision of the Employment Agreement dated July 20, 2010, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Employment Agreement on the date and year first written above. CITY OF NATIONAL CITY EMPLOYEE By: Ron Morrison, Mayor Claudia Gacitua Silva APPROVED AS TO FORM: Jennifer Knight Deputy City Attorney July 3, 2012 2 First Amendment to Employment Agreement City of National City and Claudia Gacitua Silva CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3rd, 2012 AGENDA ITEM NO. 9 EM TITLE: Warrant Register#49 for the period of 05/30/12 through 06/05/12 in the amount of $1,141,696.84. (Finance) PREPARED BY: K. Apalategui DEPARTMENT: Fina PHONE: 619-336-4331 APPROVED BY: _ EXPLANATION: Per Government Section Code 37208, attached are the warrants issued for the period of 05/30/12 through 06/05/12 The Finance Department has implemented a policy explanation of all warrants above $50,000.00 Vendor Check Amount Health Net Inc Kaiser Foundation Explanation 302404 58,226.12 Health Insurance R1192A June 2012 302407 164,901.65 Insurance Active #104220 June 2012 FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Ratification of warrants in the amount of $1,141,696.84 BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: rant Register #49 ORR1Y1A --�+ 1/2 PAYEE FUN FLICKS CLAIMS MANAGEMENT ASSOCIATES GIRL SCOUTS NATIVI DAD NORMA NOONKESTER OCANA SOLANO PRESS BOOKS E2 MANAGE TECH INC PRO BUILD PRUDENTIAL OVERALL SUPPLY SAN DIEGO TROLLEY INC SDG&E SWEETWATER AUTHORITY VISTA PAINT ADDICTION MEDICINE ALL FRESH PRODUCTS AT&T/MCI ATKINS NORTH AMERICA INC OF AMERICA PUBLIC & CIE'S TROPHIES AND AWARDS BONSUISSE INC BRIAN COX MECHANICAL INC BUREAU VERITAS N AMERICA CAPF CALIFORNIA LAW ENFORCEMENT COUNTY OF SAN DIEGO DAY WIRELESS SYSTEMS THURMAN DELTA DENTAL D-MAX ENGINEERING EXPERIAN GRAINGER HAJOCA CORPORATION HAMILTON MEATS & PROVISIONS HEALTH NET HEALTH NET HEALTH NET HEALTH NET HEALTH NET INC HEALTH NET INC HONEYWELL INTERNATIONAL INC KAISER FOUNDATION HEALTH PLANS KAISER FOUNDATION HEALTH PLANS SAVER INC IE OF CALIFORNIA CITIES LEAGUE OF CALIFORNIA CITIES MINUTEMAN PRESS NELLANS NINYO & MOORE Nam` 887 CXNCORpOHL TED WARRANT REGISTER # 49 6/5/2012 DESCRIPTION SCREEN, SOUND, PROJECTION / CSD CONSULTANT SERVICES / MAY 2012 GIRLS SCOUTS BREAKFAST / VM SOTELO REIMBURSEMENT / PORTFOLIO REFUND: ADMIN CITATION #4262 SUBSISTENCE PD BUDGET ACADEMY 32ND EDITION CURTIN'S CA LAND USE ENVIRONMENTAL CONSULT / 3/30/12 MOP 45707 / SUPPLIES FOR NSD MOP 45742/ LAUNDRY SERVICES/ NSD TROLLEY FLAGGING SERVICES GAS & ELECTRIC UTILITIES / CDC WATER UTILITIES / CDC MOP 58834 / PAINT / NSD MEDICAL SERVICES - JUL - DEC 2012 FOOD / NUTRITION CENTER SBC AT&T PHONE SERVICE / MIS PROVIDE SEWER BILL/TAX ROLL CAT LOADER EQUIP LEASE PMT#25 - 06/24/12 MOP 45704. METAL NAME TAGS/ PD MILK & DAIRY DELIVERY / NUTRITION BCM HVAC MAINTENANCE CHILLER REPLACEMENT PROJECT FIRE/LTD JUNE 2012 PD/LTD JUNE 2012 SD SHARE OF PC REV - APR 2012 COMPANY MAINT / MAY 2012 / FIRE REFUND FOR CITATION #2264 INS - JUNE 2012 ACCT#05-0908600002 STORM WATER SERVICES CREDIT CHECKS/POLICE DEPARTMENT MOP 65179- SUPPLIES FOR FIRE DEPT PLUMBING PURCHASES MEAT / NUTRITION CENTER FULL NETWORK 57135A -JUNE 2012 HEALTH NET R1192F-JUNE 2012 HEALTH NET 57135F - JUNE 2012 HEALTH INS N5992A - JUNE 2012 INS R1192A - JUNE 2012 HEALTH INS 57135J - JUNE 2012 REPAIRS INS ACTIVE #104220 - JUNE 2012 HD HSA ACTIVE GRP#104220-0005- JUNE 2012 MOP 45725 INK CARTRIDGES -FINANCE LCC ANNUAL CONFERENCE-SILVA & KNIGHT 2012 ANNUAL CONFERENCE MOP 74691 VEHICLE IMPOUND FORMS - PD CARPET, VINYL FLOORING SOILS, MATERIALS TESTING, DRAINAGE CHK NO DATE AMOUNT 302366 5/30/12 675.00 302367 6/4/12 4,965.00 302368 6/4/12 15.00 302369 6/4/12 65.24 302370 6/4/12 1,000.00 302371 6/4/12 461.15 302372 6/4/12 96.64 302373 6/5/12 24,034.15 302374 6/5/12 76.95 302375 6/5/12 27.86 302376 6/5/12 22.35 302377 6/5/12 149.73 302378 6/5/12 100.24 302379 6/5/12 108.20 302380 6/5/12 715.00 302381 6/5/12 405.25 302382 6/5/12 6,962.39 302383 6/5/12 1,952.00 302384 6/5/12 3,077.02 302385 6/5/12 21.75 302386 6/5/12 297.97 302387 6/5/12 150.00 302388 6/5/12 26,721.65 302389 6/5/12 544.00 302390 6/5/12 2,009.00 302391 6/5/12 15,235.75 302392 6/5/12 1,000.75 302393 6/5/12 100.00 302394 6/5/12 13,047.06 302395 6/5/12 36,914.77 302396 6/5/12 27.00 302397 6/5/12 97.34 302398 6/5/12 3,383.60 302399 6/5/12 723.80 302400 6/5/12 5,377.98 302401 6/5/12 2,227.66 302402 6/5/12 1,382.69 302403 6/5/12 525.07 302404 6/5/12 58,226.12 302405 6/5/12 1,349.01 302406 6/5/12 3,582.99 302407 6/5/12 164,901.65 302408 6/5/12 3,282.76 302409 6/5/12 489.11 302410 6/5/12 950.00 302411 6/5/12 475.00 302412 6/5/12 322.91 302413 6/5/12 1,801.97 302414 6/5/12 921.50 2/2 PAYEE PCS MOBILE PERKOWITZ & RUTH ARCHITECTS PERRY FORD POWERSTRIDE BATTERY CO INC PRUDENTIAL OVERALL SUPPLY RELIANCE STANDARD ROBINSON SDG&E STAPLES ADVANTAGE STARTECH COMPUTERS STILES SYSCO SAN DIEGO THE LINCOLN NATIONAL LIFE INS VALLEY INDUSTRIAL SPECIALTIES WESTFLEX INDUSTRIAL WILLY'S ELECTRONIC SUPPLY SECTION 8 HAPS PAYMENTS .1- . Sr1��i�rt_vr- IIVCORP OYt ATED WARRANT REGISTER # 49 6/5/2012 DESCRIPTION BATTERY PACK FOR CF-30K / POLICE REFUND OF BUILDING PERMIT FEES MOP 45703 AUTO PARTS MOP 67839 AUTO PARTS MOP 45742 LAUNDRY SERVICE VOLUNTARY LIFE INS - JUNE 2012 REIMB-CFED WEST 2012 CONFERENCE FACILITIES GAS & ELECTRIC MOP 45704. OFFICE SUPPLIES/ POLICE MOP 61744 MI::,C COMPUTER SUPPLIES -MIS REIMB - TRAVEL - CFED WEST 2012 CONFERENCE FOOD & CONSUMABLES / NUTRITION LIFE & AD&D MOP 46453 PLUMBING MATERIAL MOP 63850 AUTO PARTS MOP 45763 AUTO PARTS Start Date 5/30/2012 End Date 6/5/2012 GRAND TOTAL CHK NO DATE AMOUNT 302415 6/5/12 3,01346 302416 6/5/12 260.80 302417 6/5/12 232.97 302418 6/5/12 89.65 302419 6/5/12 206.67 302420 6/5/12 2,470.96 302421 6/5/12 272.35 302422 6/5/12 23,363.16 302423 6/5/12 1,052.18 302424 6/5112 393.17 302425 6/5/12 426.92 302426 6/5/12 1,755.79 302427 6/5/12 8,559.90 302428 6/5/12 30.06 302429 6/5/12 86.48 302430 6/5/12 20.10 A!P Total 433,234.65 708,462.19 $ 1,141,696.84 Certification IN ACCORDANCE WITH SECTION 37202, 37208, 372059 OF THE GOVERNMENT CODE, WE HEREBY CERTIFY TO THE ACCURACY OF THE DEMANDS LISTED ABOVE AND TO THE AVAILABILITY OF FUNDS FOR THE PAYMENT THEREOF AND FURTHER THAT THE ABOVE CLAIMS AND DEMANDS HAVE BEEN AUDITED AS REQUIRED BY LAW. TINA NO IN, FINANCE LESLIE DEESE, CITY MANAGER FINANCE COMMITTEE RONALD J. MORRISON, MAYOR -CHAIRMAN ALEJANDRA SOTELO-SOLIS, VICE -MAYOR ROSALIE ZARATE, MEMBER LUIS NATIVIDAD, MEMBER MONA RIOS, MEMBER I HEREBY CERTIFY THAT THE FOREGOING CLAIMS AND DEMANDS WERE APPROVED AND THE CITY TREASURER IS AUTHORIZED TO ISSUE SAID WARRANTS IN PAYMENT THEREOF BY THE CITY COUNCIL ON THE 3rd OF JULY, 2012. AYES NAYS ABSENT CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3`d, 2012 AGENDA ITEM NO. 10 :M TITLE: Warrant Register #50 for the period of 06/06/12 through 06/12/12 in the amount of $2,035,525.89. (Finance) PREPARED BY: K. Apalategui DEPARTMENT: Fina PHONE: 619-336-4331 APPROVED BY: EXPLANATION: Per Government Section Code 37208, attached are the warrants issued for the period of 05/30/12 through 06/05/12 The Finance Department has implemented a policy explanation of all warrants above $50,000.00 Vendor Check Amount Basile Construction 302439 350,252.77 Public Emp Ret System 302499 271,161.20 adise Creek Housing 302530 251,503.14 rartners Explanation 81" Street Utility Underground Services Retirement Insurance Period 5/15/12 — 5/28/12 Services / WI-TOD DDA FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: ( i Finance APPROVED: MIS STAFF RECOMMENDATION: Ratification of warrants in the amount of $2,035,525.89 BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: rrant Register #50 �-- COtt1 kORA -0- 1/3 PAYEE 3T EQUIPMENT COMPANY INC ACE UNIFORMS & ACCESSORIES INC ALL FRESH PRODUCTS ALLSTATE POLICE EQUIPMENT AMR ARGUS HAZCO ASSI SECURITY INC BASILE CONSTRUCTION BONSUISSE INC BOOT WORLD BRENNTAG PACIFIC INC CDCE INC CULLIGAN DAPPER TIRE COMPANY DATA TICKET INC DCS TESTING & EQUIPMENT INC DELTA CARE USA DISCOUNT SCHOOL SUPPLY noc'At FORD 1MIC INSTRUMENTS CORPORATION EVIDENT CRIME SCENE PRODUCTS FASTENAL COMPANY FERGUSON ENTERPRISES INC FIRE ETC FRANK TOYOTA G & A AUTO AIR CONDITIONING GAGE CAMPBELL GORMSEN APPLIANCE CO GRAINGER GW SCHOOL SUPPLY HAINES & COMPANY HAMILTON MEATS & PROVISIONS HARRIS & ASSOCIATES INC HOME DEPOT CREDIT SVCS HYDRO SCAPE PRODUCTS INC IKON OFFICE SOLUTIONS IMAGING PRODUCTS JOHN DEERE LANDSCAPES JOSSE KAISER FOUNDATION HEALTH PLANS KELLY PAPER CO BLAKE 2Y HORN AND ASSOC INC URTIS & SONS LAbLR SAVER INC LIFEGUARD.COM LOPEZ MALLORY SAFETY & SUPPLY LLC MORA Crl INCORPQRATED WARRANT REGISTER #50 6/12/2012 DESCRIPTION ASSEMBLY, PCB, CAMERA CONTROL SMT MOTOR BOOT, WIDE, PIPING FOOD / NUTRITION CENTER COLT MODEL 1 PC UPPER RAIL SYSTEM HEART SAVER AED CPR CARDS STAND ALONE CALIBRATION STATION SECURITY REPAIRS 8TH STREET UTILITY UNDERGROUNDING SVCS MILK & DAIRY DELIVERY / NUTRITION MOP 64096 WEARING APPAREL POOL CHEMICALS TROUBLESHOOTING OF POWER ISSUE WATER SOFTENER SVCS / NUTRITION TIRES APPEALS, ON-LINE ACCESS / APR 2012 ANNUAL HOSE TESTING PER NFPA STANDARD PMI DENTAL INS - JUNE 2012 1- STANDARD SPACELINE/BLUNT SCISSORS MOP 49078 AUTO PARTS DI RELIANT II - CSS-HD6-DVD1-SAL24-RMTL CONSULTANT SERVICES FOR BUILDING BLUESTAR FORENSIC MAGNUS/STERILE WATER CNTR CUT BOLT CUTTER/SLEDGE HAMMER MOP 45723 MATERIALS & SUPPLIES HYDRO TEST BREATHING APPARATUS LABOR, CHEMICALLY CLEAN MASS AIR FLOW COMPRESSOR/HARNESS CONNECTOR/OIL VV/ DYE REFUND OF BUILDING PERMIT FEES APPLIANCE REPAIRS & PARTS MOP 65179 SMALL TOOLS LAMINATING PAPER/NAMEPLATE/STICKERS DIRECTORIES - PD MEAT DELIVERY / NUTRITION 8TH ST. CORRIDOR SMART GROWTH DRILUDRIVE KIT -BATTERY 2 PK-SAWZALLBLDE MOP 45720 PIPES, VALVES COPIER MAINTENANCE AND SUPPLY BILLINGS OLYMPUS DM-420 DIGITAL MOP 69277 HORTICULTURAL ITEMS 125 PLAN REIMBURSEMENT RETIREES INS - JUNE 2012 CARDSTOCK PAPER 250 SHEETS REFUND - PARKING CITATION NC1120411004 DEP #1724 BAYSHORE BIKEWAY EMS JACKETS MOP 45725. INK CARTRIDGES/ ENG ROCKY MOUNTAIN QUART SPF 30+ SPORT TRANSLATION SERVICES FOR FY 2012 RESCUEAIRE II PORTABLE WITH QK FILL REIMB - COLLAR INSIGNIA CHK NO DATE AMOUNT 302431 6/12/12 439.19 302432 6/12/12 2,346.71 302433 6/12/12 357.08 302434 6/12/12 6,008.44 302435 6/12/12 110.00 302436 6/12/12 4,674.10 302438 6/12/12 450.00 302439 6/12/12 350,252.77 302440 6/12/12 538.53 302441 6/12/12 77.56 302442 6/12/12 761.83 302443 6/12/12 485.00 302444 6/12/12 7.20 302445 6/12/12 973.62 302446 6/12/12 3,814.65 302447 6/12/12 4,492-04 302448 6/12/12 2,884.93 302449 6/12/12 1,901.32 302450 6/12/12 84.03 302451 6/12/12 22,597.00 302452 6/12/12 15,064.50 302453 6/12/12 103.00 302454 6/12/12 424.14 302455 6/12/12 636.00 302456 6/12/12 2,058.21 302457 6/12/12 192.97 302458 6/12/12 999.32 302459 6/12/12 187.00 302460 6/12/12 350.17 302461 6/12/12 298.51 302462 6/12/12• 280.69 302463 6/12/12 869.14 302464 6/12/12 567.30 302465 6/12/12 15,758.40 302466 6/12/12 409.22 302467 6/12/12 604.17 302468 6/12/12 3,678 03 302469 6/12/12 1,470.30 302470 6/12/12 1,902.22 302471 6/12/12 837.03 302472 6/12/12 21,362.52 302473 6/12/12 442.11 302474 6/12/12 30.00 302475 6/12/12 1,126.00 302476 6/12/12 10,436.74 302477 6/12/12 354.42 302478 6/12/12 41.03 302479 6/12/12 280.00 302480 6/12/12 5,020.69 302481 6/12/12 42.50 �-• CALIrQ 2 9A_ -‹+ 2/3 PAYEE MUNICIPAL MAINTENANCE EQUIP N C CHAMBER OF COMMERCE NAPA AUTO PARTS NEXT DAY PRINTED TEES NIXON EGLI EQUIPMENT CO NOWDOCS INTERNATIONAL INC ORIENTAL TRADING CO INC ORKIN PEST CONTROL PACIFIC AUTO REPAIR PCS MOBILE PERRY FORD PFEIFER POWERSTRIDE BATTERY CO INC PRO BUILD PRO -EDGE KNIFE PROJECT PROFESSIONALS CORP. PRUDENTIAL OVERALL SUPPLY PUBLIC EMP RETIREMENT SYSTEM RBF CONSULTING RCP BLOCK 8 BRICK INC RED SEA ENTERPRISES RODRIGUEZ SDG&E SOUTHERN CALIF TRUCK STOP SOUTHERN CALIFORNIA SOIL & SOUTHWEST SIGNAL SERVICE SPARKLETTS STAPLES ADVANTAGE SWEETWATER AUTHORITY SYSCO SAN DIEGO THE LIGHTHOUSE INC TURNER'S PORTABLE WELDING U S BANK U-LINE UNDERGROUND SERVICE ALERT UNITED ROTARY BRUSH VALLEY INDUSTRIAL SPECIALTIES VERIZON WIRELESS WAXIE SANITARY SUPPLY WESTAIR GASES & EQUIPMENT INC WESTFLEX INDUSTRIAL WILLY'S ELECTRONIC SUPPLY WOOD & WOOD BEST BEST & KRIEGER LLP DIXIELINE BUILDERS EDCO DISPOSAL CORPORATION LASER SAVER INC MARCHANTE PARADISE CREEK PRO BUILD '- INCORPOAATE WARRANT REGISTER #50 6/12/2012 DESCRIPTION 2000 PSI PRESS SWITCH NC TOURISM MARKETING FEE -APR 2012 MOP 45735 SMALL TOOLS SPORT GREY SHORT SLEEVE/SHIRTS SWEEPER PARTS GREEN VOID BOTTOM CHECKS -FINANCE INV 651129535-01/651129535-02 BANDANAS/C PEST MAINTENANCE SMOG CERTIFICATION/REPAIRS COM-ASSI IRFMSA / MIS R&M CITY VEHICLES 125 PLAN REIMBURSEMENT MOP 67839 AUTO PARTS MOP 45707 MOBILE TOOLS KNIFE SHARPENING SVCS / NUTRITION 8TH ST. UTILITY PED. CROSSING, MARCH MOP 45742 LAUNDRY SERVICE SERVICE PERIOD 05/15/20 - 05/28/2012 8TH ST. SAFETY ENHANCEMENTS YARD MASONRY SAND POLICE CAR STRESS RELIEVER 125 PLAN REIMBURSEMENT FACILITIES GAS & ELECTRIC MOP 45758 FUEL ON -CALL GEOTECHICAL SERVICES TRAFFIC SIGNAL/STREET LIGHTING WATER / NUTRITION MOP 45742. OFFICE SUPPLIES/ NSD STREET WATER BILL FOOD & CONSUMABLES / NUTRITION MOP 45726 AUTO PARTS LABOR REPAIR EQUIPMENT SKIDS CREDIT CARD EXP - PD MIL POLYBAG/POLYTUBING DISPENSER UNDERGROUND SVC ALERT CHRGS SWEEPER REPAIRS MOP 46453 MATERIALS & SUPPLIES VERIZON WIRELESS PHONE SVCS / CITY BROWN TOWELS/DISINFECTANT/ENVISION CO2 FOR TRAINING TOWER / FIRE MOP 63850 AUTO PARTS MOP 45763 MATERIALS & SUPPLIES LIABILITY CLAIM COSTS LEGAL SVCS THROUGH MAR 31, 2012 EXP REIM: HOME ACQUISITION/REHAB WASTE DISPOSAL SERVICES / CDC MOP 45725. INK CARTRIDGES / SEC 8 PARKING REIMB: CDBG BASICS SERVICES / WI-TOD DDA MOP 45707. SUPPLIES / NSD CHK NO DATE AMOUNT 302482 6/12/12 461.28 302483 6/12/12 15,862.80 302484 6/12/12 350.50 302485 6/12/12 494.36 302486 6/12/12 1,899.89 302487 6/12/12 167.38 302488 6/12/12 1,090.10 302489 6/12/12 373.33 302490 6/12/12 2,678.69 302491 6/12/12 3,900.00 302492 6/12/12 98.00 302493 6/12/12 1,539.80 302494 6/12/12 440.55 302495 6/12/12 2,191.89 302496 6/12/12 46.00 302497 6/12/12 330-00 302498 6/12/12 400.31 302499 6/12/12 271,161.20 302500 6/12/12 824.51 302501 6/12/12 302502 6/12/12 2,T 302503 6/12/12 159.00 302504 6/12/12 23,852.57 302505 6/12/12 49.51 302506 6/12/12 210.00 302507 6/12/12 19,177.49 302508 6/12/12 7.59 302509 6/12/12 251.66 302510 6/12/12 109.51 302511 6/12/12 3,414.22 302512 6/12/12 337.16 302513 6/12/12 405.43 302514 6/12/12 56.79 302515 6/12/12 116.87 302516 6/12/12 163.50 302517 6/12/12 328.26 302518 6/12/12 35.26 302519 6/12/12 4,040.47 302520 6/12/12 622.32 302521 6/12/12 34.48 302522 6/12/12 166.93 302523 6/12/12 416.25 302524 6/12/12 12,342.20 302525 6/12/12 45,494 11 302526 6/12/12 27, 302527 6/12/12_ ___ 302528 6/12/12 185.12 302529 6/12/12 54.00 302530 6/12/12 251,503.14 302531 6/12/12 26.98 3/3 CALIQRNI.A --f Nit INCORPORATED WARRANT REGISTER #50 6/12/2012 PAYEE DESCRIPTION CHK NO DATE AMOUNT PRUDENTIAL OVERALL SUPPLY MOP 45742. LAUNDRY SERVICES/ NSD 302532 6/12/12 13-93 STAPLES ADVANTAGE MOP 45704. OFFICE SUPPLIES/ SEC 8 302533 6/12/12 449.23 UNION TRIBUNE PUB CO ADVERTISING / SEC 8 302534 6/12/12 677.25 A/P Total 1,188,478.35 PAYROLL Pay period Start Date End Date Cheek Date 12 5/15/2012 5/28/2012 6/6/2012 847,047.54 GRAND TOTAL $ 2,035,525.89 Certification IN ACCORDANCE WITH SECTION 37202, 37208, 372059 OF THE GOVERNMENT CODE, WE HEREBY CERTIFY TO THE ACCURACY OF TIIE DEMANDS LISTED ABOVF. AND TO THE AVAILABILITY OF FUNDS FOR THE PAYMENT THEREOF AND FURTHER THAT THE ABOVE CLAIMS AND DEMANDS HAVE BEEN AUDITED AS REQUIRED BY LAW. TINA NORRT/jIN, FINANCE LESLIE DEESE, CITY MANAGER FINANCE COMMITTEE RONALD J. MORRISON, MAYOR -CHAIRMAN ALEJANDRA SOTELO-SOLIS, VICE -MAYOR ROSALIE ZARATE, MEMBER LUIS NATIVIDAD, MEMBER MONA RIOS, MEMBER 1 HEREBY CERTIFY THAT THE FOREGOING CLAIMS AND DEMANDS WERE APPROVED AND THE CITY TREASURER IS AUTHORIZED TO ISSUE SAID WARRANTS IN PAYMENT THEREOF BY THE CITY COUNCIL ON THE 3`d OF JULY, 2012. AYES NAYS ABSENT CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 11 .: EM TITLE: Public Hearing: Confirming the assessment and ordering the levy for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2012/13. PREPARED BY: Raymond Pe, Principal Planner DEPARTMENT: Com�Services! PHONE: 336-4421 APPROVED BY: EXPLANATION: On June 19, 2012, the City Council declared its intention to conduct a public hearing concerning the levy of assessments for the Landscape Maintenance District No. 1 (Mile of Cars). At the June 19th meeting, the City Council initiated the proceedings for said levy and collection of assessments and approved the Annual Report ("Engineer's Report"), which identifies the assessment to be levied and collected and describes the work program to be conducted by the Mile of Cars Landscape Maintenance District. This public hearing is to receive any public comments about the levy and collection of these assessments for Fiscal Year 2012/13. A public hearing will be called for July 3, 2012 at 6:00 p.m. in the Council Chambers to hear public comment on the proposed levy of assessments for Fiscal Year 2012/13. FINANCIAL STATEMENT: Not Applicable. ACCOUNT NO. APPROVED: APPROVED: Finance MIS ENVIRONMENTAL REVIEW: This action is not subject to the California Environmental Quality Act since it is not a project as defined in the California Code of Regulations, Section 15378. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Conduct the public hearing. BOARD / COMMISSION RECOMMENDATION: Not applicable. ATTACHMENTS: 12/13 Engineer's Report (Annual Report) NBS helping communities fund tomorrow City of National City Landscape Maintenance District No. 1 (Mile of Cars) Engineer's Report Fiscal Year 2012/13 Main Office 32605 Temecula Parkway, Suite 100 Temecula, CA 92592 Toil free: 800.676.7516 Fax: 951.296.1998 Regional Office 870 Market Street, Suite 1223 San Francisco, CA 94102 Toll free: 800.434.8349 Fax: 415.391.8439 1/16 CITY OF NATIONAL CITY LANDSCAPE MAINTENANCE DISTRICT NO. 1 (MILE OF CARS) 1243 National City Blvd National City, CA 91950 Phone - (619) 336-4241 Fax - (619) 336-4239 MAYOR/CITY COUNCIL ko:i Morrison, cillayor Alejandra Sotelo-Solis, Vice Mayor Luis Natividad, Councilmember Mona Rios, Councilmember Rosalie Zarate, Councilmember AGENCY STAFF Brad Raulston, Executive Director Ray Pe, Principal Planner DISTRICT STAFF Weldon Donaldson, Executive Director NBS Pablo Perez, Project Director Brian Thomas, Assessment Engineer Brian Brown, Consultant 2/16 TABLE OF CONTENTS 1. ENGINEER'S LETTER 1-1 2. OVERVIEW 2-1 2.1 Introduction 2-1 2.2 Description of the District Boundaries 2-1 2.3 Description of Improvements 2-1 2.4 Description of Maintenance 2-2 3. ESTIMATE OF COSTS 3-1 4. ASSESSMENT DIAGRAM 4-1 5. ASSESSMENTS 5-1 5.1. Method of Apportionment 5-1 5.2 Annual Escalation Factor 5-2 5.3 Assessment Roll 53 3/16 1. ENGINEER'S LETTER WHEREAS, the City Council of the City of National City (the "City"), State of Callfomia, directed NBS Government Finance Group, DBA NBS ("NBS") to prepare and file a report presenting plans and specifications describing the general nature, location and extent of the improvements to be maintained, an estimate of the costs of the maintenance, operations and servicing of the improvements for the City's Landscape Maintenance District No. 1 (Mile of Cars) (the "District") for Fiscal Year 2012J13. The report includes a diagram for the District, showing the area and properties proposed to be assessed, an assessment of the estimated costs of the maintenance, operations and servicing the improvements, and the net amount upon all assessable lots and/or parcels within the District In proportion to tho special benefit received and; WHEREAS, the assessment for each parcel is in compliance with the Proposition 218 Omnibus Implementation Act and Section 4 of Article XIII D of the California Constitution. The proposed assessment is not proposed to increase by mere than the 10% annual increase approved at formation of the District over the Fiscal Year 2011112 assessment. NOW THEREFORE, only special benefits are assessed and any general benefits have been separated from the special benefits for purposes of this report. The following assessment is made to cover the portion of the estimated costs of maintenance, operation and servicing of said improvements to be paid by the assessable real property within the District in proportion to the special benefit received: SUMMARY OF ASSESSMENT District Fiscal Year 2012113 Actual Assessment Landscape Maintenance District No. 1 (Mite of Cars) $139,502.72 I, the undersigned, respectfully submit the enclosed Engineers Report and, to the best of my knowledge, information and belief, the assessments herein have been prepared and computed in accordance with the assessment methodology adopted and approved by the City Council at the time of district formation_ Brian Thomas, Assessment Engineer City of National City — Landscape Maintenance District No. 1 (Mile of Cars) 1-1 Prepared by N BS — Fiscal Year 2012113 4/16 2. OVERVIEW 2.1 Introduction The City formed the District to provide maintenance services to benefit certain parcels in the City. The District was formed in 1995 and the levies are made pursuant to the provisions of the Landscaping and Lighting Act of 1972, Part 2 of Division 15 of the California Streets and Highway Code (the "Act"). The 2012/13 Engineer's Report (the "Report") describes the District, the annual assessment per parcel for Fiscal Year 2012/13, based on the historical and estimated costs to maintain the improvements and provide the services that benefit parcels within the District. The word "parcel," for the purposes of this Report, refers to an individual properly assigned Its own Assessor's Parcel Number by the San Diego County Assessor's Office. The San Diego County Auditor -Controller uses Assessor's Parcel Numbers and specific Fund Numbers to identify on the tax roll, properties assessed for special district benefit assessments. Following consideration of public comments at a noticed public hearing, and following review of the Report, the City Council may confirm the Report as submitted, and may order the levy and collection of assessments for Fiscal Year 2012/13. If approved, the assessment information shall be submitted to the County Auditor -Controller, and included on the property tax roll for each benefiting parcel for Fiscal Year 2012/13. 2.2 Description of the District Boundaries The District's improvements are generally along National City Boulevard and bounded by 18th Street to the north and 33` Street and Highway 54 to the south. 2.3 Description of Improvements A ±' i1='a i on• of he -improvements to be maintained under these proceedings is desuibe d :t follows but shall not be limited to: 1. Median Improvements • Landscape planting and irrigation • Colored concrete hardscape • Lighting system • Graphic panels, banners and signage • Painted crosswalks • identification sign at 23'd Street and McKinley Avenue 2. Frontage Improvements • Improvements to parkways on both sides of National City Boulevard between 18 Street and 33° Street • Landscape planting and irrigation • Colored concrete sidewalks and mow curbs • Street furniture City of National City - Landscape Maintenance District No. 1 (Mile of Cars) 2-1 Prepared by NBS - Fiscal Year 2012/13 5/16 2.4 Description of Maintenance The maintenance of the improvements shall include the furnishing of services and materials for the ordinary and usual maintenance and servicing of the improvements, including but shall not be limited to: 1. General Plant Maintenance • Mowing, trimming, pruning and weeding • Watering, including water usage • Fertilizing • Plant replacement • Periodic skinning of palm trees 2. Maintenance of Irrigation System • Adjustment of timers • Repair/replacement of worn-out, stolen or malfunctioning equipment 3. Periodic restriping of decorative crosswalks 4. Periodic repainting of metal benches and trash receptacles 5. Periodic repainting and repair of light poles, graphic panels, signage and other miscellaneous equipment 6. Maintenance of electrical system • Bulb replacement • Repair/replacement of worn out or malfunctioning equipment • Electrical energy charges 7. Litter removal 8. Trash pick-up 9. Other repairs of damage caused by vandalism and/or traffic accidents City of National City — Landscape Maintenance District No. 1 (Mile of Cars) 2-2 Prepared by NBS — Fiscal Year 2012/13 6/16 3. ESTIMATE OF COSTS The cost of servicing, maintaining, repairing and replacing the improvements as described in the Description of Improvements are summarized in the table below. Estimated expenditures are shown along with the incidental expenses to be funded by the District. It is the intent of the District to establish a Reserve Fund for the District which shall not exceed the estimated costs of maintenance and servicing until December of each fiscal year, or whenever the District expects to receive its apportionment of special assessments and tax collections from the County, whichever is later. The following table summarizes the components that make up the Fiscal Year 2012/13 estimate of costs for the District Description Median Improvements Frontage Improvements Cost of annual maintenance: 1. Lawn planting care $0.00 339,498.23 2. Median planting care 19,749.12 0.00 3. Palm tree maintenance 4,095.00 4,095.00 4. Water usage 12,304.14 12,304.14 5. Refurbishment of graphic panels 15,000.00 0.00 6. General maintenance of electrical system lights 3,046.11 0.00 7. Elechical usage 7,150.60 0.00 8. Refurbishment of decorative crosswalks 2,000.00 2,000.00 9. Contingencies 2,500.00 2,500.00 Subtotal: ;385,844.97 $60.397.37 Incidentals: A. Administration $3,600.00 $3,600.00 B. Advertising 203.00 203.00 C. Other Contractual Obligations 75.00 75.00 D. Engineering 250.00 250.120 E City Expenses 500.00 500.00 F. Consultant Fees 2,000.00 2,000.00 G. County Collection Fees 2.30 2.30 Total Incidentals: $6,630.30 $6,630.30 Total Estimated Annual Cost: $72,475.27 $67 027.67 Surplus or Deficit: $0.00 $0.00 NET ANNUAL -0; $72,47527 sE7,027s7 IMPROVEMENT AREA: TOTAL ANNUAL ASSESSMENT FOR THE DISTRICT (1): (1) The Annual Assessment amount shown above dons not include any rounding adjustments. $139,502.94 City of National City — Landscape Maintenance District No. 1 (Mile of Cars) 3_1 Prepared by NBS - Fiscal Year 2012/13 7/16 4. ASSESSMENT DIAGRAM The Assessment Diagram sets forth (a) the exterior boundaries of the District and (b) the Tines of each lot or parcel of land within the District. The Assessment Diagram further identifies each lot or parcel by a distinctive number or letter. For a detailed description of the lines and dimensions of any lot or parcel, reference is made to the County Assessor's Map applicable for the next fiscal year, which map shall govern for all details concerning the lines and dimensions of such lots or parcels. The following pages provide a copy of the Assessment Diagram for the District. City of National City — Landscape Maintenance District No. 1 (Mile of Cars) 4-1 Prepared by NBS — Fiscal Year 2012/13 8/16 nlID 1N 1St ORB OP nK far MN O• M art d PATONAL SOY MS NW Cr 10f& arr CUM on nr IuaNNN. arc STATE S CALF0100A MOOED M DE a°M! CF THE ET,iATWEIMEENT OF SOWS Or T%E COY OF NATONAL arr Tiff , DAY Cr iff0. AIPCAIHEtotTo oI'Tktos Coy CF HAIM.% CITY STATE dL CAUfa o,A AN ASSCmBrT 11Af LOVED lY TIC a(Y COMA OH TE LOTS. sAK, AISODIEIEFT OAS LOYD CM THE __FAT SAO A�r�Pxt DAM APO TIE AMMO? {tray K ORt ATE OFFICE' OS. flE SIDMTES W Or STARE Cr VAC CITY CN DE` —DAY OF IOW DEFOIO M2 tl MADE TA OE CrSUPDADROODE STRETS POLL TIE MOW Off EAA EACH MSF?SIEN AG.NWST tA04 OARCO. Cr lib 010a1 ar MS AISQII61ry aAGW. OIEY CLE®C COY OF NATION(, CRT STATE CF MAMMA PLED THIS tMY Or 'PSI, AT Oa SOUP Or.�L.�.OLClO(X .� JL N BOO( OF MAPS OF ASRISoSTIT AIC COVATosorr NOAJTEB DISTRICTS M DIE OEM Cr TIE CaMTr 11LC3o01 ff THE COR17Y 8 SAN DIGS CM1rORMA, cOEI r, cloT000NS CO/PTY CF" SAN DECO STATE Or PANgMA AMENDED ASSESSMENT DIAGRAM OF LANDSCAPE MAINTENANCE DISTRICT NO. 1 (MILE OP CARS) CM OF NATIONAL CITY COUNTY OF SAN DIEGO STATE OF CALIFORNIA 0-4-913 RRE1 0-1eosED11-97 02 REVISED a 09 3 REVISED 5-26-04 b • 1a1 NOTE. ORIGINAL SHEET ET SIZE 18'x28' AR 401 SHEET 1 OF 3191MS TACE Or DOH MOW, C?:NTY SAW]MAPS E RD WAY cOR hNOFM AFFECT, TO (AM FADOt REFER To ASSEsSFFS PARCEL win fom PRORERTY pAL4NBO TE HOT SPOON. E. JOB No.105-148 AMENDED ASSESSMENT DIAGRAM OF LANDSCAPE MAINTENANCE DISTRICT NO. 1 (MILE OF CARS) CITY OF NATIONAL C?TY COUNTY OF SAN DIEGO STATE OF CAUFORMA 8CXLEVIVID Er 644.640,0 11S• WOOL 992--1,0-99 *Nartiviiniets. SHEET 2 OF SPEETg 901-310-.4 J REVISED 8-1-06 REVISED 81-97 REVISED 6-19-02 REVISED 6-09-03 REVISED 5-28-04 IVO >w a NOTE. ORIGINAL SHEET SIZE 18' X 26' NASLAND ENGINEERING a,.. 9M091me0fe - 001n911.0 wm MAWS NE. JOE Na.105-148 302..340-00 260 502.- 120-13 AMENDED ASSESSMENT DIAGRAM OF LANDSCAPE MAINTENANCE DISTRICT NO. i (MILE OF CAM CITY OF NATIONAL OrTY COUNTY OF SAN DEGO STATE OF CAUFOMA WOK I:F1T 1F9LEAVIZP SC2-220-13 502..226..21 669.400;67 EVEMOR 60.6.11FIrf CP GIST/I/GT 0 = 400 NOTE, OR1OINAL SHEET SZE 18x 28;* 662.420.42 SHEET 3 OF 3 SHEEle rEvirEr=D 8-1-98 REVISED 6-tf-G7 REVISED 6-19-02 REVISED 8-09-03 FEVISED 5-28-04 Ma Jag No. 108-1:4 5. ASSESSMENTS The actual assessments for Fiscal Year 2012/13, apportioned to each parcel as shown on the latest equalized roll at the County Assessor's office, are listed and submitted as Section 5.3 of this Report. The description of each lot or parcel is part of the records of the County Assessor of the County of San Diego and such records are, by reference, made part of this Report. 5.1 Method of Apportionment The law requires and the statutes provide that assessments, as levied pursuant to the provisions of the Act, must be based on the benefit that the properties receive from the improvements to be maintained. The statute does not specify the method or formula that should be used in any special assessment district proceedings. The responsibility rests with the Assessment Engineer, who Is appointed for the purpose of making an analysis of the facts and determining the correct apportionment of the assessment obligation. IDENTIFY THE BENEFIT First, it is necessary to identify the benefit that the improvements to be maintained will render to the properties within the boundaries of the District. The improvements significantly improve the visual appearance of the streetscape, making the Mile of Cars a more enjoyable and desirable Location for customers. The special signage and lighting provide a unifying theme, benefiting all of the properties within the District. APPORTIONMENT OF COSTS In further making the analysis, it is necessary that the property owners receive a special and direct benefit distinguished from that of the general public. In this case, an in-depth analysis was made and several factors are being used in the final method and spread of assessment. All of the improvements are intended to be of direct benefit to properties within the District. These improvements require significantly more maintenance than normally provided by the City.. It is therefore appropriate that the properties receiving the dicier t be assessed for the _ddi icnat cast There are generally two categories of improvements to be maintained by the District. The median improvements benefit all properties within the District. The improvements to the parkway (referred to hereln as Frontage Improvements) benefit those properties which they abut. The specific method of spreading the assessment Is described below: Median Improvements 1. The total cost for maintenance of the median improvements is apportioned to all parcels in the District based on the frontage of each parcel on National City Boulevard, with the exception of Parcel 26 (APN 562-321-05), which is owned by the City of National City and therefore, is not subject to an assessment, and as otherwise noted below. City of National City — Landscape Maintenance District No. 1 (Mile of Cars) 5-1 Prepared by NBS — Fiscal Year 2012/13 12/16 2. Parcel 32 (APN 562-220-11) has no frontage on National City Boulevard, but will benefit from the median improvements. This parcel is assessed for median improvements as if it had a frontage of 100 feet. Frontage Improvements 3. The total cost for maintenance of the Frontage Improvements is apportioned to all parcels in the District except Parcel 26 (APN 562-321-08) and Parcel 32 (APN 562- 220-11), based on frontage of each such parcel on National City Boulevard. The frontage of each parcel is determined from current assessor's maps for the County of San Diego, Stale of Califomla. All frontage dimensions have been rounded to the nearest foot. 5.2 Annual Escalation Factor The annual assessment to be levied on all properties within the district in any fiscal year shall be subject to an annual escalation of up to 10% based upon actual and anticipated expenditures. The annual assessment shall not exceed the maximum assessment, unless the appropriate Proposition 218 proceedings are conducted by the City to authorize an increase beyond the maximum assessment amount. City of National City — Landscape Maintenance District No. 1 (Mile of Cars) 5-2 Prepared by NBS — Fiscal Year 2012/13 13/16 5.3 Assessment Roll The proposed Fiscal Year 2012113 District assessment roll is listed on the following pages. City of National City -- Landscape Maintenance District No. 1 (Mile of Cars) 5-3 Prepared by NBS — Fiscal Year 2012/13 14/16 Account ID City of National City Landscape Maintenance District No 1 (Mile of Cars) Final Detail Report for the 2012113 Billing Properly ID DB L*vy Ml 6 Adis Tot. 560.203-0340 560-203-0340 34,595.13 $(0.01) 84,596.12 560-204.02.0 _ 680204-02-00 2,212.16 C.00 2,21216 560-20 -C+-00 580-204-04.00 3,032.21 (0.01) 3,002.20 550 210-01-00 680-210-01.00 1,975.14 0.00 1,976.14 580-210-04-00 580-210.04-00 2,607,18 (0.01) 2,607,18 580-210.40-00 660.210.40.10 3,334.04 0.00 3,334,04 580.210-41-00 580-210-41.30 790.06 0.00 790.06 580.210-42-00 580.210.42-00 474.03 (0.01) 474.02 560 251-08-00 560-261.06-00 4,266.30 0.00 4,266.30 560-271-07-00 580-27147-00 1,185,08 0.00 1,185.08 360.271.09-00 560-271-0940 790.06 0.00 730.06 560-271-14-00 580271.14-00 1,501.11 (0.01) 1,501.10 560-271-15-00 560-271.16.00 1,690,11 (0.01) 1,580.10 580-330.03-00 560-330-03-00 9,338.47 (0.01) 9,338.48 560393-03.00 680393-03-00 2,21216 0.00 2,212.18 580303-04-00 560393-04-00 7,584.54 0.00 7,684.64 682-021-01-00 682-021-01-00 1,580.11 (0.01) 1,560.10 I-+ 582-021.07-00 562-021-07-00 2,828.18 0.00 2,528.18 (.11 362-031-13-00 682-C3.13.00 1,738.12 0.00 1,738.12 862.031-14-00 562431-14-00 2,628,16 0.00 2,528,18 I-' 562.090-06-00 562-090-05-00 4,286.30 0.00 4,268.30 al 562.100-1330 582-100.1340 2,133.15 (0.01) 2,133.14 362-100-14-00 562-100.1440 2,133.13 (0.01) 2,13,3.14 582.150-13-00 562-150.13.00 3,302.44 0.00 3,302_44 562.160-0740 562-1604740 4,740,34 0.00 4,740,34 562480.32-00 652-1803240 1,293.63 (0.01) 1,295.66 1 562-13.033-00 562-18033-00 2,006.74 0.00 2,006.74 582-220.11-00 552- 20-11-00 816,44 0,00 816.44 552.220-13-00 362-220-13-00 3,63428 0.00 3,834213 562-220-31-00 662.22031.00 2449.17 (0.01) 2,449.16 562422032-00 582-22032-00 4,961.55 (0.01) 4,861.54 582-25137-00 662.25147-00 3,191,83 (0.01) 3,191.82 662,261-38.00 562-2514840 2.638,79 (0.01) 2,639.78 582452.16.00 582-262.15-00 5,214.37 (0.01) 6,214.36 562321-07-00 56232147-00 2.876,81 (C.01) 2875.80 562321-08.00 582321-06-00 0.00 0,00 0.00 56233045-00 56233035-00 3,934.43 C.00 3,934.48 582430.42-00 382330.42-00 1,200.63 (0.01) 1.200.88 582330-4300 582330.4340 0.00 0.00 0.00 5523400940 5623400940 4,740.34 0,00 4,740,34 682-340.47-00 562-340-47-0C 2,591.39 (0.01) 2.591,38 56234C-48-00 582340-48-00 8.89929 (0.01) 8,680.28 56234C 48-00 562440.49-00 4,598.13 (0.01) 4,588.12 562.340-50-30 582340.50-00 4,740.34 0.00 4,740.34 562340-89-00 562340-69.00 4,582.33 (0.01) 4,582.32 Copyngh2 ® 1999-2008 NBS Page 1 of 2 5/13/2012 3:07:28PM Accountl0 Property113 562340-70-00 6e2-340-7040 OS City of National City Landscape Maintenance District No 1 (Mile of Cars) Final Detail Report for the 2012/13 Billing Levy Mlsc Ads • 4,740.34 0.00 Total 4,740.34 46AocoUMs 4139,502.94 $(0.22) 3139,602.22 Copyright © 1999-2008 NBS Paae 2 of 2 5/18/2012 1:07:28PM CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT ""c .TING DATE: July 3, 20121 AGENDA ITEM NO. 12 i EM TITLE: Public Hearing of the City Council of the City of National City to consider the adoption of the 2012 Regional Transportation Improvement Program (RTIP) pursuant to SANDAG Board Policy No. 025. PREPARED BY: Barby Tipton, Project Officer PHONE: 619-336-4583I EXPLANATION: See attached.. DEPARTMENT: Development Services / APPROVED BY: Engineering FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. I APPROVED: 'NON ENVIRONMENTAL REVIEW: NIP ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Hold hearing. BOARD 1 COMMISSION RECOMMENDATION: N/A. "T'ACHMENTS: Explanation Explanation Every two years, San Diego Association of Governments (SANDAG) requires a Regional Transportation Improvement Program (RTIP) update which defines each agency's proposed major Capital Improvement Projects to be funded by transportation sales tax (TransNet). SANDAG Board Policy No. 025 established a process for obtaining input from and providing information to the public concerning agency programs, projects, and program funding in order to ensure the public is informed and has the opportunity to provide SANDAG with input so the plan can reflect the public's desire. This public hearing provides an opportunity for public participation pursuant to SANDAG Board Policy No. 25. The proposed 2012 RTIP five-year plan for National City projects for fiscal years 2013-2017 is outlined below: Project Name Project Number FY 12-13 FY 13-14 FY 14-15 FY 15-16 FY 16-17 Plaza Boulevard Widening (NC01) 6569 200,000 332,000 100,000 100,000 100,000 Street Resurfacing (NC03) 6035 520,000 450,000 746,000 813,000 850,000 Traffic Signal Install/Upgrades (NC04)* 6558 50,000 50,000 50,000 50,000 50,000 Totals 770,000 832,000 896,000 963,000 1,000,000 *$8,000 for FY 12-13 will be applied to RAMS operations support services CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 13 EM TITLE: Ordinance of the City Council of the City of National City amending Title 13 of the National City Municipal Code by adding Chapter 13.28 pertaining to the proprietary use of and placement of signs on City property PREPARED BY: Claudia Gacitua Silva PHONE: X 4222 EXPLANATION: DEPARTMENT: APPROVED BY: ;tto e Li. This ordinance sets forth the policies and regulations for the display of signs on City property. It prohibits, generally, the display of signs on City property by private persons or other governmental agencies. Signs for traffic control, directional signs, or other governmental signs erected in furtherance of official duties are exempt from this prohibition. The ordinance also addresses picketing in traditional public forum areas setting limits on the size of such signage, and is drafted to comply with Constitutional requirements. The ordinance also authorizes the City Council to allow digital display signs for general advertising for hire after consideration of factors, such as, maximization of the economic value of City property, revenue generation for the general fund, dissemination of City's own message and emergency messages, encouragement of economic activity, and the effect on view scape. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Introduce Ordinance. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: posed ordinance ORDINANCE NO. 2012 — AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AMENDING TITLE 13 OF THE NATIONAL CITY MUNICIPAL CODE BY ADDING CHAPTER 13.28 PERTAINING TO PROPRIETARY USE OF CITY PROPERTY NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of National City that Title 13 of the National City Municipal Code is hereby amended by adding Chapter 13.28, to read as follows: Chapter 13.28 PROPRIETARY USE OF CITY PROPERTY Sections: 13.28.010 Title. 13.28.020 Capacity. 13.28.030 Scope. 13.28.040 Intent as to forum. 13.28.050 Definitions. 13.28.060 Enforcement. 13.28.070 General prohibition. 13.28.080 Signs exempt from the permit requirement. 13.28.090 Permanent, private party signs on City property, 13.28.100 Vehicle signs on City property. 13.28.010 Title. This Chapter may be referred to as the City Property Sign Ordinance. 13.28.020 Capacity. In adopting this Chapter the City Council acts in its proprietary capacity as to City property. 13.28.030 Scope. This Chapter states City policies and rules for the display of signs on City property, as defined herein. 13.28.040 Intent as to forum. The City declares its intent that all City Property shall not function as a designated or limited public forum for sign display, unless some specific portion of City Property is designated as a public forum of one particular type; in such case, the declaration as to public forum type shall apply strictly and only to the specified area and the specified time period. By adopting this Chapter, the City Council intends to balance the rights of free speech, protected by the First Amendment to the U.S. Constitution and corollary provisions of the California Constitution, against the City's own speech rights, its own property rights, and the public interests in reducing the visual clutter and safety risks that can result from excessive or inappropriate signage. 13.28.050 Definitions. For purposes of interpreting and enforcing this Chapter, the following words have the special definitions given. For words not defined in this Chapter, definitions from the Regulatory Sign Ordinance may be used. "Administrator" means the person authorized by the City Council to enforce and interpret this Chapter; in the absence of a contrary authorization by the City Council, the Administrator shall be the City Manager or his/her designee. "City" means, for purposes of this Chapter, the City of National City, California and any other legal entity for which the members of the City Council also act as the legislative or policy - making body, when such other entities formally adopt or approve this Chapter as applicable to their properties and facilities. Without limitation, such other legal entities include the City as Successor Agency to the National City Redevelopment Agency, the Community Development Commission — Housing Authority, the National City Parking Authority, and the Joint Powers Financing Authority. "City Property" means land or other property or facilities in which the City of National City (as defined herein) is the legal owner or has the present right of possession and control (even if only temporarily), as well as areas that are either designated as public rights -of -way or which have long been used as such. "Permit" means a written authorization from the City for third party display of a sign on City property. "Personally attended" means that a living person is physically present within five feet of the sign at all times that the sign is on public display. "Sign ordinance" means Chapter 18.47 of the National City Municipal Code, as it may be amended from time to time. "Traditional Public Forum" means the surfaces of City -owned streets, surfaces of parks that are open to the public, surfaces of City -owned plazas, surfaces of sidewalks that are connected to the City's main pedestrian circulation system, and the exterior surface of pedestrian areas immediately surrounding City Hall. 13.28.060 Enforcement. The Administrator is authorized and directed to enforce this Chapter. Any violation of this Chapter is declared to be a public nuisance which may be abated by any means provided by law, including but not limited to any remedy for illegal signs as set forth in the Sign Ordinance, other city law, or any remedy available under state law, including but riot limited to Penal Code 556, may also be used. Legal remedies under this Section are cumulative and discretionary, and are not exclusive. 13.28.070 General prohibition. Private persons and governmental agencies other than the City may not display signs on City Property unless such display is specifically authorized by this Chapter or by state or federal law or Court order. 13.28.080 Signs Exempt from the permit requirement. The signs described in this Section may be mounted, installed, or displayed on City Property without a Permit, but remain subject to all other applicable laws, rules, regulations, and policies. A. Government signs. Signs posted by the City on City Property to express its own message(s) to the public; traffic control and traffic directional signs erected by the City or another governmental entity in fulfillment of their official duties; official notices required or 2 Proprietary Use of City Property Ordinance No. 2012- authorized by law or court order; signs placed in furtherance of the City's governmental functions. B. Picketing in traditional public forum areas. The personal carrying of signs or "picketing", displaying constitutionally protected noncommercial speech messages, is allowed in Traditional Public Forum areas, except in the roadway when it is open to normal vehicular traffic; picketers may not interfere with public ingress or egress or free use of sidewalks or public right-of-way. All picket signs must be worn on the person, hand held, or personally attended at all times, and may not exceed a cumulative total of six square feet. (In the case of double -sided signs, only one side counts toward the area total; if two sides are not equal in size, then the larger shall be used to calculate sign size.) For safety reasons, picketing is allowed only from 7:00 a.m. until 10:00 p.m.; however, on evenings when there is a public hearing at City Hall, picketing may continue until thirty minutes after the meeting for such hearing has closed. This subsection does not authorize the display of commercial messages on City Property, nor does it authorize the posting of inanimate signs on City Property, regardless of message type. This section does not apply to personally held signs displayed inside City buildings. 13.28.090 Permanent, private party signs on City property. A. Permanent Signs on City Property. Notwithstanding Chapter 18.47, in order to realize the revenue potential of City Properties, and to provide a method for City messages to be presented to the public, the City Council may allow qualified private parties to place permanent signs on City property in exchange for rent and other considerations to be negotiated and included in a lease and/or development agreement. Such permanent signs may use digital display and may be operated as billboards, i.e., be used for general advertising for hire. Before entering into any arrangement for private party permanent signs on City Property, a Request for Qualifications ("RFQ") or Request for Proposals ("RFP") will have been issued and thereafter considered by Administrator and/or City. The City retains all discretion to reject all proposals and terminate the prospective program. B. Proposals. In reviewing any proposed lease, the Council shall consider the following factors, weighted as the City Council deems appropriate: 1) the degree to which the lease maximizes the economic value of the City's property; 2) the degree to which the lease will contribute revenue to the City's general fund; 3) the degree to which the lease will allow dissemination of the City's own messages, public service messages, and/or emergency messages to the public; and, 4) the degree to which the lease will encourage economic activity in the City. C. Location and Limitations. Any permanent sign located on City Property pursuant to this Section must satisfy all other applicable legal requirements, including but not limited to Caltrans rules; and, may be located only alongside 1-5, 1-805, or State Highway 54. No more than three such new sign structures may be constructed in the City. --- Signature Page to Follow --- 3 Proprietary Use of City Property Ordinance No. 2012- PASSED and ADOPTED this day of , 2012. ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney Ron Morrison, Mayor 4 Proprietary Use of City Property Ordinance No. 2012- CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MFETING DATE: July 3, 2012 AGENDA ITEM NO.14 EM TITLE: A resolution of the City Council of the City of National City confirming the assessment and ordering the levy for the Landscape Maintenance District No. 1 (Mile of Cars) for Fiscal Year 2012/13. PREPARED BY: Raymond Pe, Principal Planner PHONE: 'i336-4421 EXPLANATION: On June 19, 2012, the City Council declared its intention to conduct a public hearing concerning the levy of assessments for the Landscape Maintenance District No. 1 (Mile of Cars). At the June 19th meeting, the City Council initiated the proceedings for said levy and collection of assessments and approved the Annual Report ("Engineer's Report"), which identifies the assessment to be levied and collected and describes the work program to be conducted by the Mile of Cars Landscape Maintenance District. DEPARTMENT: APPROVED BY: nit Services. A public hearing was held on July 3, 2012 to receive any public comments about the levy and collection of these assessments for Fiscal Year 2012/13. This accompanying resolution would confirm the assessment and order the levy for the Landscape Maintenance District No. 1 (Mile of Cars). FINANCIAL STATEMENT: Not Applicable. ACCOUNT NO. APPROVED: APPROVED: Finance MIS ENVIRONMENTAL REVIEW: This action is not subject to the California Environmental Quality Act since it is not a project as defined in the California Code of Regulations, Section 15378. ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the resolution. BOARD / COMMISSION RECOMMENDATION: Not applicable. —TACHMENTS: RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY CONFIRMING THE ASSESSMENT AND ORDERING THE LEVY FOR THE LANDSCAPE MAINTENANCE DISTRICT NO. 1 (MILE OF CARS) FOR FISCAL YEAR 2012/13 WHEREAS, the City Council previously completed its proceedings in accordance with and pursuant to the Landscape and Lighting Act of 1972, Part 2, Division 15 of the California Streets and Highways Code (commencing with Section 22500) (the "Act") to establish the City's Landscape Maintenance District No. 1 (Mile of Cars) (the "Assessment District"); and WHEREAS, the City has retained NBS for the purpose of assisting with the annual levy of the Assessment District, and to prepare and file an Annual Report; and WHEREAS, the City has, by previous resolution, declared its intention to hold a Public Hearing concerning the levy and collection of assessments within the Assessment District; and WHEREAS, a Public Hearing has been held and concluded and notice thereof was duly given in accordance with Section 22626 of the Act; and WHEREAS, at the time and place specified in the Resolution of Intention the City conducted such hearing and considered all objections to the assessment. NOW, THEREFORE BE IT RESOLVED, DETERMINED, and ORDERED by the City Council of the City Of National City, as follows: 1. Confirmation of Assessment and Diagram: The City Council hereby confirms the assessment and the diagram as is described in full detail in the Annual Report on file with the City Clerk. 2. Levy of Assessment: Pursuant to Section 22631 of the Act, the adoption of this Resolution shall constitute the levy of an assessment for the fiscal year commencing July 1, 2012, and ending June 30, 2013. 3. Ordering of the Levy: The City Council hereby orders NBS to prepare and submit the levy of assessments to the County of San Diego for placement on the Fiscal Year 2012-2013 secured property tax roll. PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: APPROVED AS TO FORM: Michael R. Della, City Clerk Claudia Gacitua Silva City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MFETING DATE: July 3, 2012 AGENDA ITEM NO. I i EM TITLE: Resolution of the City Council of the City of National City adopting the 2012 Regional Transportation Improvement Program (RTIP) for National City projects for Fiscal Years 2013 through 2017 (Funded by Proposition A Funds) PREPARED BY: Stephen Manganiello, City Engineer DEPARTMENT: Development Services / APPROVED BY: Engineering PHONE: 619-336-4382 EXPLANATION: See attached. FINANCIAL STATEMENT: ACCOUNT NO. 307-00000-3466 APPROVED: APPROVED: Finance MIS The resolution will authorize the receipt of Proposition A Funds (Fund 307) from SANDAG to National City. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt the Resolution for the five-year RTIP and TransNet Projects. BOARD / COMMISSION RECOMMENDATION: N/A ' —ACHMENTS: 1. Explanation with 2012 RTIP/TransNet Project List 2. Resolution Explanation In November 2004, the voters of San Diego County approved the San Diego Transportation Improvement Program Ordinance and Expenditure Plan (04-01) extension. The TransNet Extension Ordinance provides that SANDAG, acting as the Regional Transportation Commission, shall approve a multi -year program of the projects submitted by local jurisdictions identifying those transportation projects eligible to use transportation sales tax (TransNet) funds. Every two years, San Diego Association of Governments (SANDAG) requires a Regional Transportation Improvement Program (RTIP) update which defines each agency's proposed major Capital Improvement Projects eligible for TransNet funding. Per Resolution No. 2010-158, City Council adopted the 2010 Regional Transportation Improvement Program (RTIP) for National City projects for fiscal years 2011 through 2015. In order for SANDAG to accept National City's 2012 RTIP (five-year plan for fiscal years 2013-2017), it must first be approved by City Council Resolution. Staff is requesting Council's approval of the five-year 2012 RTIP as outlined below. For fiscal year 12-13, $8,000 of the TransNet allocation for Traffic Signal Install/Upgrades (NC04) will be used by SANDAG to satisfy National City's share of Regional Arterial Management System (RAMS) operations support services costs. Project Name Project Number FY 12-13 FY 13-14 FY 14-15 FY 15-16 FY 16-17 Plaza Boulevard Widening (NC01) 6569 200,000 332,000 100,000 100,000 100,000 Street Resurfacing (NC03) 6035 520,000 450,000 746,000 813,000 850,000 Traffic Signal Install/Upgrades (NC04)* 6558 50,000 50,000 50,000 50,000 50,000 Totals 770,000 832,000 896,000 963,000 1,000,000 *$8,000 for FY 12-13 will be applied to RAMS operations support services RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ADOPTING THE TRANSNET LOCAL STREET IMPROVEMENT PROGRAM OF PROJECTS FOR FISCAL YEARS 2013 THROUGH 2017 WHEREAS, on November 4, 2004, the voters of San Diego County approved the San Diego Transportation Improvement Program Ordinance and Expenditure Plan (the "TransNet Extension Ordinance"); and WHEREAS, the TransNet Extension Ordinance provides that SANDAG, acting as the Regional Transportation Commission, shall approve a multi -year program of projects submitted by local jurisdictions identifying those transportation projects eligible to use transportation sales tax (TransNet) funds; and WHEREAS, the City of National City was provided with an estimate of annual TransNet local street improvement revenues for fiscal years 2013 through 2017; and WHEREAS, the City of National City has held a noticed public meeting with an agenda item that clearly identified the proposed list of projects prior to approval of the projects by its authorized legislative body in accordance with Section 5(A) of the TransNet Extension Ordinance and Rule 7 of SANDAG Board Policy No. 31. NOW THEREFORE BE IT RESOLVED by the City Council of the City of National City that pursuant to Section 2(C)(1) of the TransNet Extension Ordinance, the City of National City certifies that no more than 30 percent (30%) of its annual revenues shall be spent on maintenance -related projects. BE IT FURTHER RESOLVED that pursuant to Section 4(E)(3) of the TransNet Extension Ordinance, the City of National City certifies that all new projects or major reconstruction projects funded by TransNet revenues shall accommodate travel by pedestrians and bicyclists, and that any exception to this requirement permitted under the Ordinance and proposed projects shall be clearly noticed as part of the City of National City's public hearing process. BE IT FURTHER RESOLVED that pursuant to Section 8 of the TransNet Extension Ordinance, the City of National City certifies that the required minimum annual level of local discretionary funds to be expended for street and road purposes will be met throughout the 5-year period consistent with the most recent Maintenance of Effort Requirements adopted by SANDAG. BE IT FURTHER RESOLVED that pursuant to Section 9A of the TransNet Extension Ordinance, the City of National City certifies that it will extract $2,000, plus all applicable annual increases, from the private sector for each newly constructed residential housing unit in that jurisdiction to comply with the provisions of the Regional Transportation Congestion Improvement Program ("RTCIP"). BE IT FURTHER RESOLVED that pursuant to Section 13 of the TransNet Extension Ordinance, the City of National City certifies that it has established a separate Transportation Improvement Account for TransNet revenues with interest earned expended only for those purposes for which the funds were allocated. Resolution No. 2012 — Page Two BE IT FURTHER RESOLVED that pursuant to Section 18 of the TransNet Extension Ordinance, the City of National City certifies that each project of $250,000 or more will be clearly designated during construction with TransNet project funding identification signs. BE IT FURTHER RESOLVED that the City of National City does hereby certify that all other applicable provisions of the TransNet Extension Ordinance and SANDAG Board Policy No. 31 have been met. BE IT FURTHER RESOLVED that the City of National City agrees to indemnify, hold harmless, and defend SANDAG, the San Diego County Regional Transportation Commission, and all officers and employees thereof against all causes of action or claims related to City of National City's TransNet funded projects. BE IT FURTHER RESOLVED that the City Council of the City of National City hereby adopts the 2012 Regional Transportation Improvement Program (RTIP) for National City projects for fiscal years 2013 through 2017, summarized as follows: Project Name Project Number FY 12-13 FY 13- 14 FY 14- 15 FY 15- 16 FY 16-17 Plaza Boulevard Widening (NC01) 6569 200,000 332,000 100,000 100,000 100,000 Street Resurfacing (NC03) 6035 520,000 450,000 746,000 813,000 850,000 Traffic Signal Install/Upgrades (NC04)` 6558 50,000 50,000 50,000 50,000 50,000 Totals 770,000 832,000 896,000 963,000 1,000,000 *$8,000 for FY 12-13 will be applied to RAMS operations support services PASSED and ADOPTED this 3rd day of July, 2012. ATTEST: Ron Morrison, Mayor APPROVED AS TO FORM: Michael R. Dalla, City Clerk Claudia Gacitua Silva City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO.16 EM TITLE: Resolution of the City Council of National City approving a Joint Trench Agreement with Access Cable Corporation wherein Access Cable Corporation shall pay the City the amount of $9,372.31 and authorizing the Mayor to execute the Agreement in conjunction with District 24 (8th Street) aerial to underground conversion of utilities. PREPARED BY: Barby Tipton PHONE: 336-4583 EXPLANATION: See attached DEPARTMENT: Development Services -Engineering Division APPROVED BY: FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: Funds to be deposited into account 001-409-500-598-3918 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Joint Trench Agreement 3. Resolution National City Cable Company provided cable, internet, and phone services to National City customers. NexHorizons purchased National City Cable Company in 2008. Court action placed NexHorizons in Receivership. Douglas P. Wilson was appointed as the receiver for NexHorizons and was authorized to oversee and conduct business transactions on behalf of NexHorizons. On March 5, 2012, another court order confirmed the sale of NexHorizons' assets to Shelter Island Opportunity Fund, LLC. Shelter Island Opportunity Fund, LLC also owns Access Cable. At the time of this staff report the actual sales transfer had not taken place. Time is of the essence in executing an agreement to allow either, 1) Access Cable or 2) Shelter Island Opportunity Fund, LLC & Douglas P. Wilson, Receiver, to participate in the municipal joint trench. Staff prepared an agreement with each company with the possible authority to execute such an agreement. Only one of the two agreements will need Council approval. On December 20, 2005, City Council adopted Resolution No. 2005-256 to establish Underground Utility District No. 24 on 8th Street from National City Boulevard to Highland Avenue for the purposes of replacing overhead wires, structures and poles with an underground system for electric and communications services to benefit public safety, health and welfare. California Public Utility Commission (CPUC) Rule 20A allows for an allocation of utility funds to municipalities for the purpose of undergrounding conversions. In 2011 the City's allocation was $517,959. The City's allocation balance as of March 2011 was $2,625,794. Allocations for 2012 should be available next month. SDG&E is authorized by the CPUC to convert overhead facilities to underground in accordance with Rule 20A. However, Rule 20A also allows municipalities to bid portions of the work, such as trenching, conduit, backfill, substructures, pavement repair, etc. in an effort to better control costs and schedule. Council supported staff's recommendation to bid the project, which included revising SDG&E's schematic design to provide detailed engineering plans and construction documents, in an effort to generate more competitive bidding and reduce the amount of change orders during construction. The 20A conversion of 8th Street between National City Boulevard and Highland Avenue was also combined with the sewer replacement along 8th Street in an effort to solicit more competitive bids. On March 20, 2012 Council awarded the contract to Basile Construction Inc. in the not to exceed amount of $2,386,365.49 and authorize a 25% contingency. The cost of the dry utility work is $1,058,640.52 and the cost of the sewer work is $1,327,724.97. The dry utility costs for the SDG&E portion of the work will be reimbursed with the 20A conversion funds. AT&T, Cox Cable and Access Cable shall pay their cost to the City per conditions of the Joint Trench Agreements. Access Cable Corporation Joint Trench Agreement (JTA) has a not to exceed amount of $9,372.31 where Access Cable Corporation will pay the City 1/2 of the offer within 30 days of executing this agreement and the final 1/2 within 30 days of the City providing the as-builts for the project. Any changes to this limit shall be pre -approved by Access Cable Corporation. All change orders shall be paid within 30 days of an executed change order. Staff recommends that Council approve the JTA. AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND ACCESS CABLE CORPORATION THIS AGREEMENT is entered into this 3`d day of July, 2012, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Access Cable Corporation RECITALS WHEREAS, Access Cable Corporation desires to enter into a Joint Trench Agreement for installation of facilities in the trenches of Underground District No. 24 (20A Conversion 8th Street). FOLLOWS: NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS 1. The CITY shall fumish trench, backfill, installation of conduit system with pull string and street repair.Trench, backfill, installation of conduit system with pull string shall be accomplished to Access Cable Corporationgoverning agency specficiatons.' 2. Access Cable Corporation agrees to pay the City an amount of $9,372.31 for installation of facilities in the trenches of Underground District No. 24 (20A Conversion 8th Street). 3. All increases to costs must be agreed upon by both parties, in writing, prior to the City approving any change orders. Such approval shall not be unreasonably withheld. 4. Access Cable Corporation will provide and deliver all Access Cable Corporation materials for said project. Delivery of Access Cable Corporation materials shall not be unreasonably delayed. "5. Access Cable Corporation wilrprovide onsight inspection for CATV conduit system. 6. The City shall provide the as-builts drawings to Access Cable Corporation. 7. The City shall collect payment from Access Cable Corporation as follows: $4,686.16 due upon execution of this agreement and $4,684.15 due within 30 days of the City deliverying final as-builts for the project for a total consideration of $9,372.31. Any agreed upon changes shall be paid within 30 days of execution of a Change Order. 8. Access Cable Corporation agrees that all overhead facilities shall be removed on or before August 26, 2013, by Access Cable Corporation.. 9. In the event that Access Cable Corporation fails to remove facilities by August 26, 2013, Access Cable Corporation agrees to allow the City to remove the overhead facilities and 1 further agrees that the City shall be reimbursed for all costs associated with such removal. 10. Access Cable Corporation agrees to indemnify, defend, and hold harmless, the City of National City and its officers and employees against and from any and all liability, loss, damage to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attomey's fees, and defense costs, of any kind or nature, including worker's compensation claims of or by anyone whomsoever, resulting from or arising out of Access Cable Corporation negligent performance of construction under this agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY Access Cable Corporation (Corporation — signatures of two corporate officers) (Padnership —one signature) (Sole proprietorship - one signature) By: By: Ron Morrison, Mayor APPROVED AS TO FORM: Claudia G. Silva City Attorney (Prim) (Title) By: (Name) 2 (Print) (Title City's Standard Agreement —June 2008 revision RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A JOINT TRENCH OFFER AGREEMENT WITH ACCESS CABLE CORPORATION WHEREIN ACCESS CABLE CORPORATION PAYS THE CITY THE NOT TO EXCEED AMOUNT OF $9,372.31 FOR COSTS INCURRED BY THE CITY FOR THE UNDERGROUND CONVERSION OF UTILITIES IN CONJUNCTION WITH UNDERGROUND DISTRICT NO. 24 WHEREAS, on December 20, 2005, City Council adopted Resolution No. 2005- 256 to establish Underground Utility District No. 24 on 8th Street from National City Boulevard to Highland Avenue for the purposes of replacing overhead wires, structures, and poles with an underground system for electric and communications services to benefit public safety, health, and welfare; and WHEREAS California Public Utility Commission (CPUC) Rule 20A allows for an allocation of utility funds to municipalities for the purpose of undergrounding conversions; and WHEREAS, SDG&E is authorized by the CPUC to convert overhead facilities to underground in accordance with Rule 20A. Rule 20A also allows municipalities to bid portions of the work, such as trenching, conduit, backfill, substructures, and pavement repair in an effort to better control costs and schedule; and WHEREAS, the City Council approved staff's recommendation to bid the project, which included revising SDG&E's schematic design to provide detailed engineering plans and construction documents, in an effort to generate more competitive bidding and reduce the amount of change orders during construction; and WHEREAS, on March 20, 2012 Council awarded the contract to Basile Construction Inc., in the not to exceed amount of $2,386,365.49, and authorized a 25% contingency; and WHEREAS, the cost of the dry utility work is $1,058,640.52, and the cost of the sewer work is $1,327,724.97. The dry utility costs for the SDG&E portion of the work will be reimbursed with the 20A conversion funds; and WHEREAS, Access Cable Corporation Joint Trench Agreement ("JTA") has a not to exceed amount of $9,372.31 where Access Cable Corporation will pay the City one-half (%) of the offer within 30 days of executing this Agreement, and the final one-half ('%) within 30 days of the City providing the as-builts for the Project. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City hereby authorizes the Mayor to execute a Joint Trench Offer Agreement with Access Cable Corporation for the underground conversion of utilities in conjunction with Underground District No. 24, wherein Access Cable Corporation shall pay the City the amount of $9,372.31 for the aerial to underground conversion of utilities. Said Joint Offer Agreement is on file in the Office of the City Clerk. --- Signature Page to Follow --- PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 17 EM TITLE: Resolution of the City Council of the City of National City approving a Joint Trench Agreement with Shelter Island Opportunity Fund, LLC and Douglas P. Wilson, Receiver for NexHorizons wherein the City shall receive the amount of $9,372.31 for providing underground facilities and authorizing the Mayor to execute the agreement in conjunction with Underground District 24 (20A Conversion 8th Street) aerial to underground conversion of utilities. PREPARED BY: Barby Tipton PHONE: 336-4583 EXPLANATION: See attached DEPARTMENT: Development Services -Engineering Division APPROVED BY: FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: Funds to be deposited into account 001-409-500-598-3918 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Joint Trench Offer Agreement 3. Resolution National City Cable Company provided cable, Internet, and phone services to National City customers. NexHorizons purchased National City Cable Company in 2008. Court action placed NexHorizons in Receivership. Douglas P. Wilson was appointed as the receiver for NexHorizons and was authorized to oversee and conduct business transactions on behalf of NexHorizons. On March 5, 2012, another court order confirmed the sale of NexHorizons' assets to Shelter Island Opportunity Fund, LLC. Shelter Island Opportunity Fund, LLC also owns Access Cable. At the time of this staff report the actual sales transfer had not taken place. Time is of the essence in executing an agreement to allow either, 1) Access Cable or 2) Shelter Island Opportunity Fund, LLC & Douglas P. Wilson, Receiver, to participate in the municipal joint trench. Staff prepared an agreement with each company with the possible authority to execute such an agreement. Only one of the two agreements will need Council approval. On December 20, 2005, City Council adopted Resolution No. 2005-256 to establish Underground Utility District No. 24 on 8th Street from National City Boulevard to Highland Avenue for the purposes of replacing overhead wires, structures and poles with an underground system for electric and communications services to benefit public safety, health and welfare. California Public Utility Commission (CPUC) Rule 20A allows for an allocation of utility funds to municipalities for the purpose of undergrounding conversions. In 2011 the City's allocation was $517,959. The City's allocation balance as of May 21 2012 was $3,019,844. Allocations for 2012 should be available next month. SDG&E is authorized by the CPUC to convert overhead facilities to underground in accordance with Rule 20A. However, Rule 20A also allows municipalities to bid portions of the work, such as trenching, conduit, backfill, substructures, pavement repair, etc. in an effort to better control costs and schedule. Council supported staff's recommendation to bid the project, which included revising SDG&E's schematic design to provide detailed engineering plans and construction documents, in an effort to generate more competitive bidding and reduce the amount of change orders during construction. The 20A conversion of 8th Street between National City Boulevard and Highland Avenue was also combined with the sewer replacement along 8th Street in an effort to solicit more competitive bids. On March 20, 2012 Council awarded the contract to Basile Construction Inc. in the not to exceed amount of $2,386,365.49 and authorize a 25% contingency. The cost of the dry utility work is $1,058,640.52 and the cost of the sewer work is $1,327,724.97. The dry utility costs for the SDG&E portion of the work will be reimbursed with the 20A conversion funds. AT&T, Cox Cable and Douglas P. Wilson, Receiver for Nexhorizons shall pay their cost to the City per conditions of the Joint Trench Offer Agreements. The Receiver will pay the City 1/2 of the offer upon execution of this agreement and the final 1/2 within 30 days of the City providing the as-builts for the project. Any changes to this limit shall be pre -approved by the receiver. Payment from the receiver shall be made within 30 days of an executed Change Order. Upon termination of the receivership, Shelter Island Opportunity Fund, LLC shall assume all rights and obligations of the Joint Trench Agreement as agreed upon in the Joint Trench Agreement. Staff recommends that Council approve the JTO agreement. RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A JOINT TRENCH OFFER AGREEMENT WITH SHELTER ISLAND OPPORTUNITY FUND, LLC, AND DOUGLAS P. WILSON, RECEIVER FOR NEXHORIZONS WHEREIN THE CITY SHALL RECEIVE THE AMOUNT OF $9,372.31 FOR THE AERIAL TO UNDERGROUND CONVERSION OF UTILITIES IN CONJUNCTION WITH UNDERGROUND DISTRICT NO. 24 WHEREAS, on December 20, 2005, City Council adopted Resolution No. 2005- 256 to establish Underground Utility District No. 24 on 8th Street from National City Boulevard to Highland Avenue for the purposes of replacing overhead wires, structures, and poles with an underground system for electric and communications services to benefit public safety, health, and welfare; and WHEREAS California Public Utility Commission (CPUC) Rule 20A allows for an allocation of utility funds to municipalities for the purpose of undergrounding conversions; and WHEREAS, SDG&E is authorized by the CPUC to convert overhead facilities to underground in accordance with Rule 20A. Rule 20A also allows municipalities to bid portions of the work, such as trenching, conduit, backfill, substructures, and pavement repair in an effort to better control costs and schedule; and WHEREAS, the City Council approved staff's recommendation to bid the project, which included revising SDG&E's schematic design to provide detailed engineering plans and construction documents, in an effort to generate more competitive bidding and reduce the amount of change orders during construction; and WHEREAS, on March 20, 2012 Council awarded the contract to Basile Construction Inc., in the not to exceed amount of $2,386,365.49, and authorized a 25% contingency; and WHEREAS, the cost of the dry utility work is $1,058,640.52, and the cost of the sewer work is $1,327,724.97. The dry utility costs for the SDG&E portion of the work will be reimbursed with the 20A conversion funds. AT&T, Cox Cable and Douglas P. Wilson, Receiver for Nexhorizons shall pay their cost to the City per conditions of the Joint Trench Offer Agreements; and WHEREAS, the Receiver shall pay the City one-half (1/2) of the offer upon execution of this Joint Trench Offer ("JTO") Agreement, and the final one-half (%2) within 30 days of the City providing the as-builts for the project. Any changes to this limit shall be pre -approved by the Receiver. Payment from the Receiver shall be made within 30 days of an executed Change Order; and WHEREAS, pursuant to this JTO Agreement, upon termination of the receivership, Shelter Island Opportunity Fund, LLC, shall assume all rights and obligations of the Joint Trench Agreement as agreed upon therein. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City hereby authorizes the Mayor to execute a Joint Trench Offer Agreement with Shelter Island Opportunity Fund, LLC, and Douglas P. Wilson, Receiver for Nexhorizons wherein the Receiver shall pay the City the amount of $9,372.31 for the aerial to underground conversion of utilities in conjunction with Underground District No. 24. --- Signature Page to Follow --- Resolution No. 2012 — Page Two PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney AGREEMIJNT BY AND BETWEEN TF E CITY OF NATIONAL CITY, SHELTER ISLAND OPPORTUNITY FUND, LLC, AND DOUGLAS P. WILSON AS RECEIVER THIS AGREEMENT is entered into this 3`d day of July, 2012, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), Shelter Island Opportunity Fund, LLC. ("Shelter Island") and Douglas P. Wilson, Receiver, pursuant to the Order appointing Receiver filed July 2I, 2011, in the Superior court of State of California for the Country of San Diego, as Case Number 27-2011-00091420-CU-BC-CTL ("Receiver"') RECITALS WHEREAS, in 2005, the City Council of the Cityof National City ty adopted Resolution Number 2005-256 to establish Underground Utility District No. 24 (the "District") on 8th Street from National City Boulevard to Highland Avenue for purposes of replacing overhead wires, structures, and poles with an underground system (the "Underground Conversion Work") for electric and communications services to benefit public safety, health, and welfare. WHEREAS, Resolution Number 2005-256 requires all above -ground wires, structures and poles ("Overhead Facilities") of electric and communications services located in!the District to be removed, WHEREAS, after conforming with competitive bidding process requirements, the CITY awarded a contract to Basile Construction, Inc., for portions of the Underground Conversion Work.' WHEREAS, Douglas P. Wilson ("Receiver") has been appointed as Receiver to take physical custody and control of the Receivership Estate, consisting of NexHorizon Communications, Inc.'s and NexHorizon Broadband of Southern California, Inc.'s business assets and all facilities and property ("the Receivorship Estate"), as set forth in the ORDER GRANTING PLAINTFF SHELTER ISLAND OPPORTUNITY FUND, LLC'S EX PARTE APPLICATION FOR REINSTATEMENT OF TEMPORARY RESTRAINING ORDER AND ORDER APPOINTING RECEIVER AND RESETTING OF ORDER TO SHOW COASE WHY APPOINTMENT SHOULD NOT BE CONFIRMED, San Diego Superior Court Case No. 27- 201 I-00091420-CU-BC-CJT, ("Order Appointing Receiver", attached hereto as Exhibit "A"). WHEREAS, Receiver has been authorized and empowered by the Order Appointing Receiver to enter into or modify contracts affecting any part of the Receivoship Estate. WHEREAS, the sale of the Receivorship Estate to Shelter Island or its designee, who submitted the highest and best bid for the Receivorship Estate, has been confirmed and approved by Court Order (attached hereto as Exhibit "B"). 1 WHEREAS, the sale includes all legal and beneficial rights, titles, and interests in and to the Receivorship Assets. WHEREAS, ownership of the Receivorship Asserts will transfer to Shelter Island upon completion of the sale. WHEREAS, the Receivership Assets include Overhead Facilities lcoated in the District. WHEREAS, Receiver desires to enter into a Joint. Trench Agreement for installation of facilities in the trenches of Underground District No. 24 (20A Conversion 8th Street);. WHEREAS, Shelter Island desires to enter into a Joint Trench Agreement for installation of facilities in the trenches of Underground District No. 24 (20A Conversion 8`h Street). NOW, THEREFORE, THE. PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. The CITY shall furnish trench, bacicfill, installation of conduit system with pull string and street repair. - 2. Trench, backfill, installation of conduit system with pull string shall be accomplished to Receiver's governing agency spccficiatons. 3. Receiver agrees to pay the CITY an amount of $9,372.31 for installation of facilities in the trenches of Underground District No. 24 (20A Conversion 8th Street). 4. All increases to costs must be agreed upon by both parties, in writing, prior to the CITY approving any change ordcrs. Such approval shall not be unreasonably withheld. 5. Receiver will provide and deliver all Receiver's materials for said project. Delivery of Receiver's materials shall not be unre sonably delayed, and in any event shall be delivered to the City within 20 calendar days of City's request for materials. 6 Receiver ill pi ovide onsight inspection for CATV conduit system. 7. The CITY shall provide the as-builts drawings to Receiver. 8. The City shall collect payment from the Receiver as follows: $4,636.16 due upon execution of this agreement and $4,686.15 due within 30 days of the City delivering final as-builts for the project for a total consideration of $9,372.31. Any agreed upon changes shall be paid within 30 days of execution of a Change Order. 9. Upon final payment to the CITY, the CITY agrees to release ownership rights; and interest in and to that certain underground supporting structure placed for Receiver as:part of the underground adopted by the City of National City Resolution 2005-256 District Number 24 (31h Street between National City Boulevard and Highland Avenue). 2 10_ Receiver agrees that all Overhead Facilities shall be removed on or before August 26, 2013, by Receiver. 11. Receiver agrees to allow the CITY to remove the Overhead Facilities without further notice or warning, in the event that Receiver fails to do so by August 26, 2013, and further agrees to reimburse the CITY within 30 days of removal for all costs associated with such removal. In the event that Receiver fails to remove its Overhead Facilities, Reciever will be deemed to have waived any and all claims against the CITY, its officers and employees, including, but not limited to, claims for money damages or damage to property for the removal of its Overhead Facilities. 12. Receiver agrees to indemnify, defend, and hold harmless, the City of National City and its officers and employees against and from any and all liability, loss, damage to!property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorney's fees, and defense costs, of any kind or nature, including worker's compensation claims of or by anyone whomsoever, resulting from or arising out of Receiver's negligent performance of construction under this agreement. 13. "No risk or obligation incurred by Receiver under this Agreement shall be the personal risk or obligation of Douglas P. Wilson or Douglas Wilson Companies, but shall be the risk or obligation of the receivership estate. 14. Upon the sale of the receivership assets, this Agreement and all terms, rights, and obligations of the Receiver hereunder shall immediately be assigned to the purchaser of the receivership assets. The Receiver shall have no further rights or obligations under this Agreement upon such assignment and/or termination of the receivership. 15. Upon purchase of Receivership Assets, Shelter Island Operortunity Fund, LLC, the Court Ordered Purchaser of assets (See Exhibit A), shall assume all rights and obligations under this Agreement. --- Signature page to follow --- 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: Claudia G. Silva City Attorney SHELTER ISLAND OPPORTUNITY FUND, LLC (Ssignatures of two corporate officers required) By: (Name) (Print) (Title) DOUGLAS P. WILSON, REC 67 R By: 4 Douglas P`Wilson EXHIBIT "A" 8 9 10 11 12 I3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F f L e D Claris of MU St; .rlor Court A1;G 1 9 2011 By:: P. ASFFWORTH, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA 1N AND FOR THE COUNTY OF SAN DIEGO SHELTER ISLAND OPPORTUNITY FUND, LLC, a Delaware limited liability company, Plaintiff, vs. NEXHORIZON COMMUNICATIONS, INC., a Delaware corporation; NEXHORIZON BROADBAND OF SOUTHERN CALIFORNIA, INC., a California corporation; and DOES 1 through 100, inclusive, Defendants. Case No. 37-201 I-00091420-CU-BC-CTL [Related Case No. 37-2010-83634] (Assigned for all purposes to Hon. Timothy B. Taylor) RCIEOSEIJfRDER GRANTING PLAINTIFF SHELTER ISLAND OPPORTUNITY FUND, LLC'S EX PARTE APPLICATION FOR REINSTATEMENT OF TEMPORARY RESTRAINING ORDER AND ORDER APPOINTING RECEIVER AND RESETTING OF ORDER TO SHOW CAUSE WHY APPOINTMENT SHOULD NOT BE CONFIRMED DATE: TIME: DEPT: August 18, 2011 8:30 A.M. 72 ACTION FILED: May 18, 2011 TRIAL DATE: None Set [PROPOSED] ORDER GRANTING PLAINTIFF SHELTER ISLAND OPPORTUNITY FUND, LLC'S EXPARTE APPLICATION FOR REINSTATEMENT NJ 227,234,364v1 8-15-11 5 J On August 18, 2011, Plaintiff Shelter Island Opportunity Fund, LLC ("Lender") brought an ex parte application for Reinstatement of Temporary Restraining Order and Order Appointing Receiver and Resetting of Order to Show Cause Why Appointment of Receiver Should Not Be Confirmed, Appearances were made as noted on the record. The Court has considered the papers, evidence and argument of counsel: Good cause showing, the application is GRANTED. The July 21,;2011 Order Appointing Receiver and Temporary Restraining Order in Aid of Receiver, Order to Appear and Show Cause Why Appointment Should Not Be Confirmed, a true copy of which is attached hereto as Exhibit 1, is hereby reinstated in its entirety and amended only as follows. Defendants Nexhorizon Communications, Inc., Nexhorizon Broadband of Southern California, Inc. and Green Planet,' Inc. d/b/a Green Planet Digital shall appear in Department Attritis 0:3o q,M cue "� Court, located at 220 West Broadway, San Diego, California at 3• [lime] on• 2011 and show cause, if an y,. asp) why the appointment of the Receiver should not be confirmed. Defendants shall file and personally or e-mail serve any opposition papers by August 2 l2011. Lender shall file and personally or e-mail serve any reply papers by August z.92011. IT IS SO ORDERED. DATED: • 8 /» , 2011 JOEL M. PRESSMAN HON TIMOTHY B. TAY-LOLL 'JUDGE OF THE SUPERIOR COURT 1 [PROPOSED] ORDER GRANTING PLAINTIFF SHELTER ISLAND OPPORTUNITY FUND, LLC'S EXPARTE APPLICATION FOR REINSTATEMENT NJ 227,234,364v1 8-15-11 N;XHIBIT 1 Case 3:11-cv-0162 )An. -Sang_ Document 7-1 Filed 0E `t 1 Page 5 of 20 Case 3.11-cv-01621MA WVG Document 1-12 Fileci/22111 Page 35 of 113 go 2 3 4 5 6 7 8 9 10. 11 12 33 14 3s 16. 11 IS 19 20 21 rj ORIGINAL [Submittal by:1 g � �} 4 }397 LCOOKS ;To ;a4.,BIOY & WWG A� Ptakas+o i i Corporation 33$ Anon Boulevard, Tenth Floor Costa Telephone: Mesa, (7I4) 4�a 31--1I00 I977 Facsimile: (714) 431-1119 • yy$s for Plaintiff fir Cn. Mat ISLAND OPPORTUNITY FUND, lie F t L ca iris_ +. r'r SUPERIOR COURT OFTILE 'STATE OF CALIFORNIA IN AND FOR THE COUNTY Olr SAN DIEGO ISLAND OPPORTUNITY SHAM LI.C, nDtIawarcbaWcdliability company, . Plaintiff 11EXHOR1ZPN COMMUNICATIONS, a Delaware caappaOon OI W.ON BROAIJBAN D OF _ . CALJFORI41A, INC a ikomia eorporadon; and DOES 1 through Kg inclusive. . Defendant& Case No. 37.4011-00091420-CU-IIC-Cf . (Related Casa No. 37-2010-836341 Case Assigned to: JudgaTimoShy B. Wilson , Dept. 72 4P P ANDTEMPORARY APPOINTING RESTRAINING ORDER IN MD OF RECEIVER; ORDER TO APPEAR AND SHOW CAUSE WHY APPOINTMENT SHOULD NOT BE CONFIRMED Date: July 21, 2011 Time. 8:30 sm. Dept: 72 pin .p i ts: Plais±tt_'.f S1 . .2 ISLAND op9C'RT'uNr1'v FUUND. - - 23 LJ.C, Delaware limited tiabtl'ry company, for the appointme»t of a naiver and temporary 24 restraining order in aid of the receiver (the `Application') came on for hearing this 211 day 23 of July, 2011, at 8:30 ant. In Dcpotitnent 72 of the above -entitled Court, the Iionorobk 26 tmathy a. Taylor. ju.,Lfepsvit1ug. Piaiadfj'allocated by awl through its counsel Lawrence 27 11. Miller or Cooi:sey. Taolen, Gate, Daffy & Weog. Other appearance were as soled in 24 the Cour*s record. ifgioa0 )°: fin rerFOAM NCIMcty¢nanon-wonmaes MN11$eo nett Pagel 667 Case 3:11-cv-016;. )MA -WVG Document 7-1 - Red 0 :%11 Page 6 of 20 Case 3:11-cv-0162E4MA -WVG Document 1-12 File l22111 Page 36 of 113 Upon the reading of the Application and the pleadings filed in this cation, and vies "'"" l.e argumen of , it appears to ta is a proper ease or 3 the appointment of a receiver and far the issuance of a temporary restrainer order enjoining 4 the defendants herein from interfering with the receiver's performance of his duties. S • 6 TB£REFORE,17 IS HEREBY ORDERED, AS FOLLOWS: 7 ORDERS R'EGARD;PIG ItttCRIVKR 9 10 I £ ARrNrhd>tr OF RECER 11 12 : 1_ Tbe'Court gains Plaintiffs Applionion and appoints DOi1GLAS P. WILSON is as Receives to take possession. custody and control of the reel and personal property as 14 described below. Tho Rece(vers appointment shall became effective upon the filing of the 15 Receiver's oath in this department. Within three days ofhis appointment. tie Receive 16 'bo post a boryd from an insurer In the sum of ?�kv 1tt airs 17 (S rf j0c ) conditioned upon the faith11 performance of the Receiver's du cs. The 11 Receiver's Bond and the Oath of the Receiver may be bled by facsim le transmission 19 provided, however, that the Receiver replace the facsimiles with originals within seven days 20 of tiling. 21 (a) Tina Cant appoints the Receiver to take physical custody and control of the Receivership Estate, consisting of the Defendants' business assets and all facilities, 23 including the practises heated et 381 "'C.-Ili-cif, (ainit'Slist Cllarid nary otherraankles 24 relating to Defendants' business operailens wherever located in San Diego County, sad. 23 including the real and personal property described in Exhibit "A" attached hereto (the 2ti 'Properly ). The Receivership Estate consists of the Property, together with the accounts. 27 ravenars, s t ir<o as sue iai r xnu, 'Ile. records. it mars and accounts or the Defendants, wherever located. 21 117,1 nEtflYVd A1N7tAM'0KMITIllf`IWNtN60ROCtt Page Z 468 9 Case 3:11-cv-0161 iMA-VtAVG Document 7-1 Filed 0, 1 1 1 Page 7 of 20 Case 3:11-cv-01627-MhAA -WVG Document 1-12 FI(ecjQ7122/11 Page 37 of 113 1 (b) The Receiver shall further be subject to any ciders of this Court made and 2 catered in evntisetion with the Relied Case, Case No. 31-'t0111B3634, more pasha-i t :W: 3 Receiver shall be subject to the Prc3minery Injunction made and entered oo Moy 16, 2011. 4 following the harking on the motion of the City of Chula Vista (the "CITY-) for Prelimiaaey S Injunction, which wrier enjoins the defeatism is the Related Case end their agents, servants 6 and employees, and anyone else acting in concert with than, from interfering with the 7 t TY's ongoing utility undergrotut points width: the Jurisdiction of the City of Chula a Vista. . 9 10 3. The Plaintiff shall post as Applicaai's bond in the amount of TwanIV-Five 11 Thovsanst dollars (S25,000.00) prior to the appointment of a Receiver. 13 1iE 12 11 13 11 COMPENSATION OF RECEIVER 14 15 4. The Receiver jhall charge the mnaant of S275 pee hour for his services. The g 3.1 16 Receiver shall primarily use die services of PougJas Wilson Companies personnel to mange 6 17 the Property st horrly ma, pursuant to the fee schedule attached hereto as Exhibit "B". In 11 addition, the Rcetriver shall be reimbursed for all expenses incurred by the Receiver. on 19 behalf of the Receivership F.swte. The Receiver, his matutganenl company, his consultants, 20 agents. employees sad profession* shall be paid on a monthly basis. To be paid an a 21 monthly basis, the Receiver must file a statesneas of account with the Court and serve a copy 2 ..r: all patties each month for t .time and upon* incurred in the preceding cateodermonth. 23 Ones tha Receiver's statement of mount has been fled and served, the Receiver may pay 24 thm statement from the Receivership Estate ?wrung to California Rules of Coats Rule 25 3.1113, objections to each of the Receivers stataneihts of account. if any, rust be made 26 within ten (ID) days of notice of the statement. Faltuse of a patty to object within this ten 27 (10) day pesiod shall constitute it waiver of that parry's objection(s) 10 the fees for chat 21 period. The Receivers receipts of interim fees are subject to Goal review sad approval by gop'oSl1_i DaR 6¢AY?0JNVlia Ma is Agn'?ta{i'OMnY R£S'esamsc Data page"} f]aY A n 669 10 Case 3:11-cv-016'. . MA -WVG Document 7-1 Filed .'11 Page 8 of 20 Case 3:11-cv-0162 MA -WVG Document 1-12 Filec#,p,7/22/11 Page 38 of 113 this Court This Omni retains jurisdiction to award a greater or lesser amount as the full, 2 3 4 5 6 7 g 9 JO 11 12 �ta ci 13 14 I 15 16 17 3 3$ 19 20 21 2E 23 24 25 26 27 21 fair, and fatal value ottha Receiver's smilers. At pawl. AND WflES OF RECEIVER ER 5. The Receiver shalt have all the powers, dates and authority es are provided by taw, and shall operate, manage, centre', conduct, core for, preserve, complae, tgaiotain the Receivership Estotq peodirtg termination of the receivership at further order of this Court. In particular, though without limitation, the Receiver shall hate the following powers and responsibilities: A. The Receiver is authorized and empowered to enter, gain access and lake possession or the Receivership Estate, whether in the possession of the Defendants. its agents, otfrcars, directors, andror employers or any other pas or entity. 1n this regard the Receiver shalt be authorized to tha�e the locks on all doors omdfor gates providing access to the Ace-Oretship Estate and to .der ail things which he drums neeessaty to protect the Receivership Estate._ 1}. The Receiver is authorized and empowered to collect all accounts, profits, royalties, income, Mnd other benefits derived from the Property {°theme") which is now our hereafter may be derived from the Property and existing operations relating, to the Property. To the extent that, Borrower or its agents, assignees, successors, or represeetadvcs collect any income derived from the Property; such Intim githli,14 tit -get _a AI= '- Receiver within five (5) business days et such collection. To the wad that. Defendants or its agents, assignees, successors, or representatives hold in'gteis possession or emend any income derived from the Propetl7. they shall ptomptiy taws same over to Receiver. including control deny bank accounts or reserves so derived. Any income, security or other deposits canceled by Defendants cc obligors to Defendants. and which are not paid to the Receiver, and ovcrwhidt this Receiver iw no control, shall be obis gations of Defendants and 1* rtlimi0nD[Juts/dttrfiNGtummy* tMPQMAMYR1$MaitecGOao= Page 670 11 Case 3:11-cv-016:. !1\AA -WVG Document 7-1 Filed 0, 11 Page 9 o` ^0 Case 3:11-cv-01627-MA -WVG Document 1-12 File./22/11 Page 39 of 113 4 111 2 3 d $ 6 7 . 10 11 12 13 14 15 16 17 Itt 19 20 21 22 23 24 25 26 27 2E may not become obligations of Receiver without &ohs:order ofthe Court. I�te' Kcceiva'is °°Monied and empowered to apply Income to protein rho Property from imminent physicsI waste and, as far as practicable, to operate the Property. In addition, the Resdver shall prompdy investigate and then make ttcwmmendations as to whether and to what c,d nt operations at the Property should or should not centime, based on Income available from the Property end Ihs expenses necessary to preserve the Urals of the Property. . D. The Receiver is authorised and empowered to Take possession and tollact arty accounts, choir) paper and general intangibles of °very kind wising out of the Property and to take possession of air the books and marls relating to the foregoing, wherever located. as the Receiver deems necessary for the props administration of the Receivership Eaulo but ths books and records scull be nude available to Borrower, as is reasenabty necessary and upon termination of the receivership each boobs and records shall be rimmed to Borrow!►. E. The Receiver is wthopseel'and empowered to employ Douglas Wilson Companies, attorneys; consultants, scrams. agents. anpioyeas, beakers, appraisers, guards, clerks. atcourrwtlts. sad management sotsultemta, including in his sole dnseretio `the Bgrr et andk v emptoysa arch* Corporate Management, In ., to administer the Receivership instate and to preserve, protect and maintain the Property use shall dean necessary; to puochase mster'lah, supplies and services sad to pay Therefor at the unto! rate and prices out or fends that shall ceme Into his to pay the reasenabts value of said 'services out of the proceeds of Ow estaw lc eompwmisa debts of the business end to do all things and to inevi those obligation ordinarily hseucred im connection with the operation of simiirr businesses and properties. F. The Receiver is euthor1ted and empowered to issue Receivers Ccrtifiatet of htdebtedtu s to PbhMitt in substantially the form attached hereto as Bsbibit ••C, n der to borrow Auld: from Plaindtf as may be necessary to protect, prsservs and maintain. the Property end to provide Erode for the expenses of the receivership. The frieRvt1SLe142 AiPoMxNO AYaw= Antrno MahAv aerre,Atoseo nark Page St 671. 12 Case 3:11-cv-0162, iV1A -'NVG Document 7-1 Filed 08, .11 Page 10of20 Case 3:11-cv-0162� -WVG Document 1-12 File7122I11 Page 40 of 113 3 4 5 6 7 9 10 11 12 13 16 15 16 ri IS 19 20 21 23- 24 25 26 27 28 obligations wider such cenlikates shall constitute a fist priority nen on the assets of the rue -vas rp, such first priority lien being sensor to all - tag an, •re hen whams inchrding mechanics' tiers, judgment holders, partners, members. shareholders and creditors of Defendants. The Receiver's Cedifrcate liens shall automatically be perfected upon issuance by theReeeiver, without the need to tile or record any financing statements or deeds of trust to perfect same; provided, however, that the Receiver shall be authurited to execute for filing or recordation such instruments as deemed appropriate and as requested by Plaintiff to !bailer evidence and or pureed such liens. in addition, the advances under the Receiver's Certificates shalt be deemed advances under every deed of trust executed hi favor of Plaintiff. Nothing herein shall obligate Plaintiff to advance all or any put of the borrowings authorized herein. if the Receiver desires to borrow Rinds from sources other dean Plaintiff, the Receiver shall petition ibis Court (With notice to all parties) for authorization to Issue Receives Certificates to one or more third parties Q The Receiver is authorized and empowered to take all steps necessary arid appropriare to complete any bonding with Plaintiff s approval or odor Improvanant which constitutes a portion of the Property including, without limitation, steps necessary to preserve eaditkd eats or permits, died repairs, employ licensed contenotors to undcrtekc any and all n«gssary or desirable remediatlon of any issues at the Property, take possession of ail accounts containing security depoths or recital deposits, if say, for the Property, and hire such agents as the Receiver deems twccssary and appropriate to complete construction of the irirprovemeots on the Property. This authen'ty shall 6rclude the ability oft; Receiver, is his solo -ant, abudtue• discretion, to, fermiaatt the^servic oI the Borrower, the Borrower's personnel, any general {entracte/ or subeontrasibt(s) without additional oxpcasc t'o chi Reedvershlp Elting on tutus wbab the Receiver believes are in the tar interests of the Receivershipisette. hi. The Receives is authorized and empowaad to continue in effect any contracts presently existing and not in default relating to the Property; and enter into or mortify contracts affecting any part of or all of the Property Inciading, without limitation, any AcZAITIMINSIN parr) 011611.APP0IMTu4G naziv ttdltDTamalatwd aa5,11A ING 0R0[R Page 6 r sows' 672 13 Case 3:11-rv-0162 1A. -1.ANG Document 7-1 Filed 06 . 1 Page 11 of 20 Case 3:11-cv-0162�MA -WVG Document 1-12 Flee/22/11 Page 41 of 113 1 and all maintenance and utility contract; affecting the Property. 2 I. The Receiver a authorized and empowered to excwte and prepare ail documents, and to perform all acts, which are necessary or incidental to preserving, 4 protecting, managing. constructing end/or controlling the property of the Receivership 5 Estate. 6 1. The Receiver Is authorized and aapowered to Woe any and all steps 7 necessary to receive, collet and triad viz? rzed to Borrower including, but not 1; limited Io mail addressed to any post office boxes held is the nano of Borrower, and the 9 Receiver is uuthorited to instruct the U.S. Postmaster to reroute, hold, and or telcaso said 10 mall to said Receiver. Mail retrieved and reviewed by the Receive' in the partonnarsce of his 11 duties will promptly be made available to the authorized agent of floavwcr; however, the k2 Reteiver shad be authorised to remove air chocks of other dams of payment payable to 13 Harrower asrevenue, Income, receivables andfarother !myeloid anthe bullocks. 14 X.. The Receiver is authorized and eapowmed to take possession of all YS bank accounts of Borrower 'and ail aeco»ats and chattel paper wherever located, and shall 16 receive possession of arty money on deposit In said bank accounts. The receipt, by the Receiver for said Rands shall disthuse said bank hum Anther responsibility for accounting 17 to said account holder for funds as to which- the Receiver shall give his receipt: IS l.. Tha Receiver is authorized and empowered to review, analyze cad 19 attempt to acmwrt foe all of the Property's revenues and, going-fortvard, cream that all of the 10 Receivership Estate's revenues are properly received and recorded, 21 M. The Receiver stall determine upon taking possession of the Property 22 whether in etc ncac1vcr`s judgttru.t there is surltieitnt :>u aWet: mvcragc, if suldelute 23 insurance coverage does not exist, the Receiver shall immediately notify the parties to this 24 lawsuit and shall have thirty (30) calendar days to procure =Metall Insurance for the 2i Property; providtd, hotvevar, that if the Receiver Joey not have sufficient rands to do so, the 26 -Reetiver-shatl-sack-iestatmi nos-fresh-tlw-Corm-with-regard-ttswhetha-inawahee. shall.be. 27 obtained mid how ie Is to he paid for. The Receiver shall name himself as named insured, 21 typo ...-..m.............._:.,... .,. __— - 10/14rfiO IIDIRAarorMftNGn[t:ViltANDTM MIAMIetall4ININC0AIIGr Pagel 613 14 Case 3:11-cv-0162 `AA -WVG- Document 7-1 .:. Filed 0ir ....11 Page 12 of 20 Case 3:11-cv-0162�MA -WVG Document 1-12 Fill /22/11 Page 42 of 113 2 3 .1(4 6 7 fi 4 10 11 12 13 14 15 16 17 18 14 26 21 22: 23 74 25 26 27 23 Douglas Wilson Companies and the Plaintiff as additional inaxed, and the Plaintiff as loss payee, for any =thence pokes that he procures. 1f prmsutrait with existing taw, iba Receiver shaft not be responsible for claims -arising from the lack of procurement or inability to obtain insurance. a SGOM v"5: 2•1t7 +";Llit �s.?-c-- "t S...+i 're R:�ry, err / and 12 a3 r. . ti. Thu Reativer Is author ud and anpowcud ter, as maces ty or appropriate, notify all local, state aad federal governmental agencies, all vendors and suppliers, and any and afl others who provide goods or services to the Receivership Estate of his appointment as Receiver.• mrretoswiso•to•tho•Receivorairip oes-- .,.t,. yrn , ,p ei t3muvgtheutpzior-osdacaWais•Cooa, No Insurance company may cancel Its esistiag cucrent-paid policy as a result DIME appointment of the Receiver, without prior order of this Coup. • 0. The mantes coming into possession of the Receiver pursuant to possession or control of the Property, and pot caiperidcd for any of the purposes herein authorized, may be turned over to Plaintiff in partial payment of Defendants' obligations to Plaintiff sued upon in the Complaint without further order of,Jitis Court, but Daly upon PlaintufFs written request. P. The Receiver is authorized and empowered to use the Bonowcds tax identification number to establish: bank accounts at arty bank the Receiver deems appeeptiate for the deposit of monies end funds collated and received in connection with his administration of the Receivership Estate. provided that all fends of deposit are lamed by ao agency ache United States Government. The Receiver is authorized sad empowered to negotiate, make, enter into, or modrf'y contracts or agreements affecting any pasta all of the Receivership Bait; including. without limitation, lay and all leases &Meting the Receivership Estate, and to Irani iata1y terminate any existing contact agreement or instrument which, in his tole and absolute discretion, the Receiver detcanioa is not commercially reasonable or is the bust Interests of the Receivership Estate. - .� tPoP> Dann Page8 R 674 15 Case 3:11-cv-0162JANG Document 7-1 - .Filed 08. )1 Page 13 of 20 Case 3:11-Cv-01627-iMA -WVG Document 1-12 Filee7/22/11 Page 43 of 113 R. The Receiver is authorized rind empowered to pay and discharge out of recenras p a of explaues 0 P. - an• e cos s and e 3 ojaeratina, maintenance and all other aspects of the Receiverthip Estate and all business conducted [baton, incased slam the time of the Receiver's appointment, including all taxes, S governmental assessments and charges in tho retort thereof lawfully Imposed upon the 6 Receivership Estate. The Receiver shall not be responsible for paying any expense of 7 Defendants, or other payables 4 o. third parti-' -,1.:-;i4; 1..19ablec were doe and owing 1 prior to the appointment of the Receiver. However, the Rer.eiver roan in hia-sole discretion. 9 pay costs and =passes incurred prior to the Receiver's appointment if the Receiver 10 determines that pyjama of such items is necessary for the preservation, care and I i maintenance DEMO Receivership Estate. ce otherwise in the best interests of the Receivership 12 Estate. 13 S. Any security or other deposits which subscribers of the services 14 provided by Defendants which have beat paid to Defendants or tha agents and which are IS not paid to the Receiver. and over which the Receives, has no control, slap] be obliptions of 16 the Defendants and may oos be re:fended by the Retell,* without Amber order of the Court. I/ Any other security or other deposits which the subsenlers,or other third potties lave prod or DI may pay to the Reeriva, if taheawise refundable under the terms of any contracts ar 19 agreements with the Receiver, shall be e:Tenses of the Receivership Estate and refunded by 20 the Receiver in accordance with the tams alba leases or weans nts. 21 T. Receiver may apply for, obtain and pay any reasonable price for my 22 1awI license permit a other governmental approval tel*Ing to the Property ot the 23 operation thereof; =ghat the existence of and, to the to the extent pc:mined by-law, 24 25 26 27 21 exercise the privileges deny existing license or permit Issued in conotetion with the Subject Property or any business hansamal with respect to it, until Audits order It Mc Coed. trod to do an things necessary to protect and ntaintsie said Ikenses; tit rintronsilartorn *morrow ezeuvee no-rotronear "smut= ottu a Page 9 675 16 Case 3:11-cv-0162. V1A -VVVG Document 7-1 Filed'O6: 111 Page 14 of 20 Case 3:11-w-0162 A-VVVG Document 1-12 Filet/22/11 Page 44 of 113 3 4 5 6 7 8 9 10 11 12 13 111 14 IS 111 16 7 18 19 20 21 22 23 24 23 26 27 2s U. The Receiver is authorized and eetpoweccd to do all things and to incur ail r ks raid obli;6ttont °greenly and ieascnabiy incurred by tamers, managers mad operators ofsinu'larpmpedies and businesses. V. 11 a Defeats* tiles a bnnkiuptey case during the receivership, Plaintiff shall give notice albs bankruptcy cast to the court, to ail parties, and to the Receiver by the dosing of the nexq business day after the airy out which the Plaintiff receives notice of the bcnkruptcy Fifing W. If the Receiver rtxewes notice that a bankruptcy case has been fled and part of the bankruptcy wale includes any property of the Receivership Estate that is the subject adds order, the Reooiver shall have tho following dvtiex 1. Tarn over.psoperty if no seilef from stay will be sought. The Receiver shall immtdiateiy contact the party who obtained the appointment of the Receiver and determine whether that parry Intends to move the bankroptey court for an order for (a) relief from the automatic stay, and (b) relief front tb5; Receives obligation to turn over the Property (11 U.S.G. ¢343)_ If the party her no intention to make such motion, the Receiver shall immediately lurtover the Property to the apprc riata entity either to the tnutea in benkrnptay If one has been appointed, or, Ifnat. to the debtor in pesussion and otherwise comply with 11 U.S.C. 541; 3, Remain in posserabse-prusding aesehtsion..<If, the patty'..-}ybq obtained the receivership intends to sash relief_from both the automatic stay and the Receiver's obligation to turn over the Properly. the Receiver may remain ill possession and preserve the Property pending the rulnion those motions (13 U.S.C. S43(a)j. The Receiver's authority to preserve rho Preparty shad be limited as follows: glogr 1t78N7.1�totRA►lotlfrltrtuarratANDTttt4MIMRY ei9'C1lAIWIat60Rt EM Past 20 676 17 Case 3:11-cv-0162 CIA -WVG Document 7-1 Filed Gc. i1 i Page 15 of 26 Case 3:11-cv-01627 MA -WVG Document 1-12 File/22/11 Page 45 of 113 1 2 (a) The Receiver may continue to collect rents and tuber 4 5 6 7 9 10 tit 11 13 14 IS 16 17 It 19 20 11 23 14 25 26 27 21! Income; (b) The. Receiver may make only those disbursements necessary to preserve and protect the Property: (c) The Receiver shall aot execute any new leases or other long-term coetracta and (d) The Receiver shell do nothing that would effect a material change in the circumstances of the Property: 3. Turnover Property ifno enoi1on for relief Is filed within ten (10) days after notice of the bankruptcy. If the party who obtained the receivership fails to file a motion within ten (10) court days alter receipt of notice of the bankruptcy Ming, the Receiver shall immediately turnover the Property to the appropriate entity either the m tee in bankruptcy if one has been appointed or, if not, to the debtor In possession and otherwise comply with 11 u.S, . 343. 4. Retain bankruptcy counsel. The Receiver may petition the court to retain legal counsel to assist the Receiver with issues arising. out oft abankmpleyproceedings that affect the Receivership. X. The primary purpose of the Receiver shall be to preserve the Property from physical deterioration and maintain mania! utilities and services to protect the ?p. 3lekee iwr isalsoauthorized to utiliatleceipts front.thq Property :a pay see9tad real prepare; Was and all liens mrd'mcumbranccs secured by the ppoperty arurusted.to the Receiver in the order of their priority. The Racciver shall promptly give writtert notice to all parties to this action of any such payment. Y. The Receiver may era any federal taxpayer Ider114ftca11o* aumbecs of the 8o1r04XYr retakes Id the. Property for anylawful purpose. ulkircisIMCROLNAPPalNl1145IM 61VERANDTDIPOR rIYouRWttmeGORDER Pagell 1Thedito 677 18 Case 3:11-cv-0162 : 1A -4WG Document 7-1 Filed Of:: )11 Page 16 of 20 Case 3:11-cv-0162�MA -WVG Document 1-12 Fil 7122111 Page 46 of 113 Z. The Receiver shall prepare and Gle tax returns op behalf of the 2=odotver in conntgioo w't iha y pay sera n state and other (axes , the 3 Receivership. The Receiver rev engage professionals to assist him with such duties. 4 5 W. 17EPORTm14G 6 7 6. pursuant to Califotn£a Rules of Court Rules 3.I131 and 3.1132, the Receiver 3 shall satisfy the following repeating requirement . 9 A. To the extent feasible, the Receiver shall, within forty-five (45) days of 10 his qualification herenoder, fik in this salon a ddailed inventory of ail property of which he �$ 11 shall have taken pamenion ptxsgant to this Order. The ReettiVer shall promptly ilk a 11 12 supplementary inventory setting forth any material property that be has subsequently 13 obtained. 14 B. The Receiver shall prepare and prov3do neenthiy reports to the parties 4d 33 and, if requested, to noapany lieu hohiors. These monthly reports shall inchtde: (1) a tom-$ iS 16 narrative report of events, (2) n financial repast, and (3) a stetem ice of all fees paid' to the 17 . temriver, employees and professionals. The Recciveu's moathty reports shall also be filed a. 13 with this Court 19 20 V. TEM OL%12Y Rd1STRAMI ORDER RE-12 cT IVER' QPf}T1ON4 21 4 - g :: ' 1T' 13 Furenn it ORDIRE11 the Delkadathonind=earelt wf liCtor aura t.!#k 23 respexrive officers, directors, shart:holdats; small partners, bashed .partners, numbers, 24 agents, property managers, employees, essiprees, svcccssora, represematrvas, and an persons 2$ acting under, in aoncc 1 with, OF for them, and all other persora with Ritual or constructive 26 knowledge of this order, and -tack of than, shall does 27 A. Tummies of Assets: Shall turnover to the Receiver he possession and 21 moaagement of the Properly and an otter items of the Receivership Estate, Mc/win all • trar!.btonb[ReaFOlNrnrAtt;GttvEXAND r84PONAnYttESTItAINING010 a Page12 678 19 Case 3:11-cv-0162. CIA -WVG Document 7-1 Piled 08. 11 Page 17 of 20 • Case 3:11-cv-01627-MMA -WVG Document 1-12 Fle (22/11 Page 47 of 113 1 financial, bank account and other written and decimate records and documents relating to ioperty. - 3 B. Turnover of Licenses, Permits, and 'Taxpayer ID Number. Shall 4 turnover to the Receiver originals or copies of all documents which periotn to all licenses, 3 permits, or government approvals relating to the Property and shall immediately advise the 6 1 Receiver of their Federal Taxpayer identification Number used in connection with the - 1 operation of Borrower. 8 C. Notification of lisswan=G Sholi immediately advise the Receiver as to 9 the nature and extent of all insurance coverage far Batrowu or its operations. Borrower shall 10 iinmediatety awns the Receiver as named Insured and Douglas Wilson Companies as an g 11 addition! insured oa the insurance poliry(ies) for the period that ih¢ Receiver shall be in a 12 possestion of the Receivership Estate faelargag, but not limited to, comprehensive general 11 13 liability, arc and casualty, wrap and construction ddcct coverage. Defbndants ore prohibited ar. 1f 4 from canceling, reducing or mod ing any and all insurance coverage a arrerttly in existence 111 ) S 1 with rupees to din Property, the Borrower and its operations. t- 9, i 15 D. Agreements: Shall tura over to the Receiver originals or copies of all i 17 emeralds, license s, cc other agreement, of any kind whatsoever; wheel=cr currently in effect 1 a or lapsed, which relate or related io any inicrui of Defeneheas in the ProPedY. 19 E. ' Monier Shall turn over to the Receiver all monies our fonds of any typo 20 in the account or accounts of defendants relating to the Property or thcRtaavership Estate. 2! • se. 23 24 29 26 asii..E.R ORDEP..'.°,J3 that pmtiog listher:Order of this: Ow Dc.hndaras, and cult of than, mid their respective ofkccss. dlscetos. shareholders, general patios, limited partners, mambas, agents, property managers, employees, assignees" sueeessoss, representatives, and all parents adios under, in coocat with, or for them, cad a1! other persons with actual or constructive la owledgeof Ibis order, and each 01 Ihdn, shall 21 29 not: morostmosontarroitimmsterraaANDttNmttaYntif'AtAttattitrHtDao Page13 679 20 Case 3:11-cv-0162. .v1A -WVG. Document 7-1 Filed 08. 11 Page 18 of 20 Case 3:11-cv-0182 A -WVG. Document 1-12 1 2 7 4 5 6 7 9 10 11 12 13- 14 15 16• 20 2a Fite7/22/11 Page 4B of 113 F. Commit Waste: Defendants shaU not commit or puerilely waste of the Property or ,any part of t(ic iLecenkbship Estate; of fnll-cr or comrnif ii perm i any as on the Property or any part thereof in violation of law, or remove, transfer. encumber or otherwise dispose of any of theRcceivarbip Estate, or any past thereof. or any felines thereon. G. Cotlect Accounts Receivable Defendants shall not demand, collect, receive, discount; or In any other way divas or use any of the Borrower's accame receivable or other Property. IL Interfere With Retina Dererrda ds shell not &telly or indirectly interfere in may manna with the discharge of the Receiver's duties tech this Order or the Receiver's possession or and preservation and maintenance of the Property or related litigation, and shall not: I. lntakxe with the Receiver's eoUudiat or accounts receivable. J. Dissipate, remove or secrete any portion of the Receivership ErtaIG including, but not limbed to (i) contacting any payot of any aecoaau receivable fbr any ptpr' pose whatsoever, (11) demanding paymai*from any payor ofany accounts receivable, -cashinTony duck or other instrument used in paying any accounts receivable, (iv) removing any funds from any bone mount t located at, any femeial institution which constitutes collections of accounts receivable or other proceeds of the Receivership Estate, and (v) rct4siog to allow or prohibiting, either directly or intfireclly, the Rc c1vet's possession of and access to all books and records of Darrower. X. tnterkring with Plaintiff or the Receiver in any way connected with phe Reeeive4 pmtedion of - `,.ustsi<Rs enfotcemeat of ice irgirtsreltricr! 1Alhe;� _ . or t: ,..a Plaindi's banal in the Proputy. L. Transfer or Encumber the progeny: Defendants shall not expend. disburse, transfer, assign, serf, convey, devise, page. mortgage, enure a security interest In. cn umber, hypothecate, cgnceal or In any manner whatsoever deal In or dispose orlhe whole at any past or the Reetivetshlp Estate, including, but not limited to, the s coleus receivable and Borrower's books and records, without prior Court Order. tfgeroarnOgialt4TPOIVIA4Citraimamlonurovigvotsgoiutosoonotta Pages4 finer Mum 680 21 Case 3:11-cv-0162. E\AA -WVG Document 7-1 Filed 08 ,\11 Page 19 of 20 Case 3:11-cv-01627-MMA VWG Document 1-12 Filet/22/11 Page 49 of 113 M. Impair Preservation of Property or Plaintiffs interest: Defendants shall — i- fi anp act which >l,t k' freto impair, defeat, divert, prevent or prejudice 1 the preservation of the Property, including the accounts receivable, or the preservation of 4 plaintiffs interest in the Property. 5 6 VL 1114AL REPp13t 610 ACCO9Ht7UG 7 - 8. 7'f IS FURTHER ORDERED THAT the following provisions shall also 9 apply to this receivership: 10 A. Receiverts Final Rcpon awed Account: Nat later than shay (60) days after 11 the receivership terminates, the Receiver shall file, server and set for hearing in this ! 2 Department his Fined Report and Account. Nodes must be given to all persons of whom the 13 Receiver is aware who hsve potential claims against the Receivership Estate. The motion to 14 approve the final report and accounting, and far discharge of the Reccivcr, shall contain the 7� t5 folloatufe eta 16 ; 1. The Final Report and Account including a narrative sumuaary of 11 significant iceeivership events as well as a summary of receivership 15 accounting, umiak); of the total revenues reccived, the total 19 expeadhoras identified sad enumerated by major categoric*, the net 20 amount of any surplus or deficit, and evidence of necessary supporting 21 amend 22 2. A &Wootiea unto' penalty of iieduiy try to Receives confirming the 23 (i ocauracy of tisa information set forth in his nut Report and Account. !e 13 II At i x r1IER IDIS'CRUGTE04AND ORDEI_TO SHOW CAUS71 16 27 21 y apply -to his Coart far! 10. The parties iterate or the Receive► may at any tfpra father or other inntruwions wed. for (hither powers necessary to enable the Receiver to torra rouaelnoistnOronrtumneclverinxoYatrowrraISITIAnmtoaxa 681 22 Case 3:11-cv-0162; AAA -WVG Document 7-1 Filed 08, 11 Page 20 of 20 Case 3;11-cv-0162747MA -WVG Document 1-12 Fllee/22/11 Page 50 of 113 1 iti 4 6 7 3 9 10 11 12 13 14 13 19 20 21 22 23 24 23 26 21 25 parfoolt his duties properly. 1!, Nd individual or entity may e6mmeaec Or ecutimsa Iitigation against the Receiver without Gras obtaining the permission of this Court. 12. Douglas P. Wilson is acting solely In his capacity es Receiver and no risk, obligation or expense incurred shall be the personal risk, obligation or exponsa of Douglas P. Wltscn or Douglas Wilson Companies, but shall be the risk, obligation or acpcnse of the receivership estate. fi'IS PUIrl'HER ORDERED that Defendants NEXHOR1ZON COMMUNICATIONS, INC.„ NEXHOIUZON BROADBAND OF SOUTHERN CALIFORNIA, INC., and GREEN PLANET, INC, DOING BUSINESS IN- CALIFORNIA AS GREEN PLANET DITIGIAL, appear utDeyea(incat 12 of this Court, located at 220 West Broadway, San Diego, California Olt td vri ii..14iitati cad stow cawe, if any it has a they tirhyrho iniwelnofthercecivers auldnotbaconfirm & Bt-ref 1 ' a$ t C • DATED: 1[7.1 / t1 iutx E F THE ItiPiltiraR 06uR Amoy rt AOros[,p rn'ArroiITNGtuUH/IFAt+esiat►OAARYAFsslIMMIRC ARxa Paget6 682 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 /} 15 16 17 18 19 LJ 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA., COUNTY OF LOS ANGELES I am employed in the aforesaid county, State of California; 1 am over the age of 18 years and not a party to the within action; my business address is 2450 Colorado Avenue, Suite 400E, Santa Monica, California 90404. On August 16, 2011, I served the [PROPOSED] ORDER GRANTING PLAINTIFF SHELTER ISLAND OPPORTUNITY FUND, LLC'S EX PARTE APPLICATION FOR REINSTATEMENT OF TEMPORARY RESTRAINING ORDER AND ORDER APPOINTING RECEIVER AND RESETTING OF ORDER TO SHOW CAUSE WHY APPOINTMENT SHOULD NOT BE CONFIRMED on the interested parties in this action by placing the true copy thereof, enclosed in a sealed envelope, postage prepaid, addressed as follows: Cristopher G. Sabol, Esq. The Law Office of Cristopher G. Sabol 1422 Thomas Avenue San Diego, CA 92109 Chance C. Hawkins, Esq. Chula Vista City Attorney's Office 276 Fourth Avenue Chula Vista, CA 91910 n_rtre Chula Vista City Attorney's Office 276 Fourth Avenue Chula Vista, CA 91910 David J. Noonan, Esq. Kirby, Noonan, Lance & Hoge, LLP 350 10th Ave., #1300 San Diego, CA 92101 'j�{.4}' �9 �14v,3- ...a,Y�ro. <v p� ,?• �c�� 3.'rc cgsitm@gmail.com NexHorizon Broadband of So. California NexHorizon Communications, Inc. chawkins@ci-chula-vista.ca.us City of Chula Vista ' ;:miesfeld@ci-cf u I vista.ca.us dnoonan@knlh.com City of C i u1;. Vista Michael Meacham NJ 227,234, 760v1 8-16-11 PROOF OF SERVICE 24 2 3 4 5 6 7 8 9 10 11 12 13 14 ) 15 16 17 18 19 21 21 22 23 24 25 26 27 28 J. Barrett Marum, Esq. bmarum@sheppardmullin.com Receiver Sheppard Mullin 501 West Broadway, 19th Floor San Diego, CA 92101 ❑ (BY E-MAIL) On August 16, 2011, I transmitted the foregoing document(s) by E-mail with Return Receipt Requested to the addressee at his e-mail address as indicated above. ® (BY FEDERAL EXPRESS) I am readily familiar with the business practice of my place of employment in respect to the collection and processing of correspondence, pleadings and notices for delivery by Federal Express. Under the practice it would be deposited with Federal Express on that same day with postage thereon fully prepared at Santa Monica, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if delivery by Federal Express is more than one day after date of deposit with Federal Express. ® (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 16, 2011, at Santa Monica, alifomia Witta AY - Signature Monica A. Solorzano Print Name NJ 227,234,760v1 8-16-11 PROOF OF SERVICE 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 :3 20 21 22 23 24 25 26 27 28 EXHIBIT "B" Cferk of the Superior Court > APR 09 2012 $Y I Urie Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO SHELTER ISLAND OPPORTUNITY FUND, LLC, a Delaware limited liability company, Plaintiff, NEXHORIZON COMMUNICATIONS, INC., a Delaware corporation; NEXHORIZON BROADBAND OF SOUTHERN CALIFORNIA, INC., a California corporation; and DOES 1 through 100, inclusive, Defendants. Case No. 37-2011-00091420-CU-BC-CIL Related Case No. 37-2010-83634 [PBOPOSTD] ORDER ON MOTION TO CONFIRM AND APPROVE THE SALE OF RECEIVERSHIP ASSETS HEARING Date: Time: Dept,: Judge: April 6, 2012 10:30 a.m. 66 ' Hon Joel M. PressniatJ wo2-WEST.8JBM 11404852787.3 NJ 227374952✓2 March 4, 2012 [PAD] ORDER ON MOTION TO RECEIVERSHIP CONFIRM SALE OF ASSETS 26 1 NJ 227374952v2 Match 4, 2012 Good cause appearing theteon, the Court hereby GRANTS Douglas P. Wilson's 2 ("Receiver") Motion to Approve the Sale of Receivership Assets (the "Motion"). 3 4 ORDER 5 The Court has reviewed and considered the Receiver's Motion to confirm the sale 6 (the "Sale") of all of the Purchased Assets (as defined in the Asset Sale and Purchase Agreement 7 dated March 5, 2012 (as amended, the "APA") annexed hereto as Exhibit "A") free and clear of 8 any and all liens, claims, obligations, liabilities, debts, and encumbrances to Shelter Island 9 Opportunity Fund, LLC or its designee ("Purchaser"), who submitted the highest and best bid for 10 the Purchased Assets pursuant to the terms and conditions set forth in the APA. 11 12 The Court has also considered the Declaration of Geno Rodriguez in support of the 13 Motion, the Reply In Support of Receiver's Motion to Approve the Sale of Receivership Assets, the 14 Supplemental Declaration of Geno Rodriguez in support of the Motion, as well as the argument of 15 counsel. The Court finds that the Purchased Assets are property of the Receivership Estate and 16 can be conveyed and transferred to Purchaser. The Court further finds that the Receiver complied 17 in all material respects with the Order On Ex Parte Application To Approve Bidding Procedures 18 To Sell Receivership Assets entered on March 7, 2012 (the "Bid Procedures Order"). The Court 1-9 further findsthat the Sale of the Purchased Assets to Purchaser is 'iti the best interests of th& 20 Receivership Estate, that the APA represents the highest and best offer for the Purchased Assets, 21 and that the Consideration (as defined in the APA) is fair and reasonable and constitutes fair 22 consideration and reasonably equivalent value under any applicable federal or state law. The 23 Court further finds that Purchaser is not a "successor" to the Defendants or the Receivership Estate 24 by reason of any theory of law or equity, and Purchaser shall not assume, nor be deemed to 25 assume, or in any way be responsible for any liability or obligation of the Defendants or the 26 27 Unless otherwise defined herein, all capitalized terms shall have the meanings given to them in the Bid Procedures Order. 28 w02-WEST:819MI5404652787.3 (PROPOSED] ORDER ON MOTION TO CONFIRM SALE OF RECEIVERSHIP ASSETS -1- 27 1 2 3 4 5 b 7 8 9 10 11 12 13 14 15 16 17 18 Receivership Estate including, without limitation, any bulk sales law, successor or vicarious liability or similar liability except as otherwise expressly provided in the APA. The Court further finds that the Consideration and the terms of the APA were negotiated, proposed and entered into by the parties without collusion, in good faith and from arm's length bargaining positions. Good cause appearing, and sufficient notice of the Sale and the Motion having been provided and no timely written objection having been filed, the Motion is GRANTED in its entirety. THEREFORE, IT IS HEREBY OI�;;J . D THAT, the Receiver is authorized and directed to enter into the APA and to take such actions as are necessary to implement and consummate the transactions contemplated by the APA. IT IS HEREBY ORDERED THAT, upon the Closing (as defined in the APA) the Purchased Assets shall be, and hereby are, transferred, sold and delivered to Purchaser free and clear of any Liens (as defined in the APA), claims, encumbrances and interests. IT IS FURTHER ORDERED THAT, after the Closing, all persons or entities holding any Liens, claims, encumbrances or interests against the Defendants or the Receivership :. Estate witt,respect to the Purchased Ass ts are barred,fro as&eidng against.the Pt ba er nd iar -I 20 21 22 23 24 25 26 27 28 respective successors or assigns or the Purchased Assets, any claim or right based upon such Liens, claims, encumbrances or interests. IT IS FURTHER ORDERED THAT, after the Closing, Defendants (or any of them) and their respective officers, directors, managers, control persons, agents and representatives (collectively, "Defendant Parties") are barred from asserting against the Purchaser and its successors and assigns or the Purchased Assets any claim or right based upon any Liens, claims, encumbrances or interests. -2- W02-WEST;BJBMIN04852787.3 [PROPOSED] ORDER ON MOTION TO CONFIRM SALE OF RECEIVERSHIP ASSETS NJ 227374952v2 Mardi 4, 2012 28 1 2 3 4 IT IS FURTHER ORDERED THAT, notwithstanding anything to the contrary in the APA, including, but not limited to, the conditions precedent set forth therein, the Closing shall occur no later than five (5) business days after the Purchaser has obtained the necessary licenses, permits and agreements to operate the Purchased Assets as Purchaser requires. 5 6 IT IS FURTHER ORDERED THAT, this Order is and shall be binding upon and 7 shall govern acts of all entities including, without limitation, all filing agents, filing officers, title 8 agents, title companies, recorders of mortgages, recorders of fees, registrars of deeds, 9 administrative agencies, governmental departments, secretaries of state, and local officials, and all 10 other persons and entities, who may be required by operation of law, the duties of their office, or 11 contract, to accept, file, register or otherwise record or release any documents or instruments that 12 reflect that Purchaser is the assignee of the Purchased Assets free and clear (all such entities being 13 referred to as "Recording Officers"). All Recording Officers are authorized and specifically 14 directed to strike recorded claims, Liens and interests against the Purchased Assets recorded prior 15 to the date of this Order that Purchaser is acquiring free and clear. 16 17 IT IS FURTHER ORDERED THAT, all persons and entities (including without 18 limitation any of the Defendant Parties) that are presently, or at the Closing may be, in possession =1g of scm ipt I df tfi `lAucttase8 3sets-are hereby directed`to "surrener poskisioh ofthe 20 Purchased Assets to Purchaser as of the Closing. 21 22 IT IS FURTHER ORDERED THAT, the terms and provisions of the APA, 23 together with the terms and provisions of this Order, shall be binding in all respects upon, the 24 Receiver and the Receivership Estate and binding and enforceable against all persons. 25 26 IT IS FURTHER ORDERED THAT, Purchaser and its successors and assigns, 27 shall succeed the Receivership Estate as plaintiff and movant in all litigation (whether or not 28 pending at the time of the Closing) comprising the Estate Actions (as defined in the APA) after the W02-WEST:8IBM t\404852787.3 NJ 227374952v2 March 4, 2012 29 [PROPOSED) ORDER ON MOTION TO CONFIRM SALE OF RECEIVERSHIP ASSETS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NJ 227374952v2 March 4, 2012 Closing Date including, without limitation, the contempt proceedings against Green Planet, Inc. and Alvin Pearson. IT IS FURTHER ORDERED THAT, the failure to include specifically any particular provision of the APA in this Order shall not diminish or impair the effectiveness of such provisions, it being the intent of the Court that the APA be authorized and approved in its entirety. IT IS FURTHER ORDERED THAT, the APA and any related documents or other instruments may be modified, amended or supplemented by the parties thereto, in a writing signed by both parties, and in accordance with the terms thereof, without further order of the Court. IT IS FURTHER. ORDERED THAT, no bulk -sales law or any similar law of any state or other jurisdiction shall apply in any way to the transfer of the Purchased Assets and/or the Purchaser and its successors and assigns. IT IS FURTHER ORDERED THAT, this Court retains jurisdiction to enforce and implement the terms and provisions of this Order and the APA, all amendments thereto, any waivers and consents thereunder, and each of the documents executed in connection therewith in all respectsi.including retaining jurisdicdon.ta.(a).,cccm13:l..delivery ci the Purchased Assets hO'. Purchaser, (b) resolve any disputes arising under or related to the APA, and (c) protect Purchaser against any liens, claims, encumbrances or interests asserted against the Purchased Assets. IT IS FURTHER ORDERED THAT, the Receiver is acting solely in his capacity as Receiver and no risk, obligation or expense shall be the personal risk, obligation or expense of the Receiver or the Douglas Wilson Companies, but shall be the risk, obligation or expense of the Receivership Estate. IT IS FURTHER ORDERED THAT, the provisions of this Order are non- -4- W02-WEST:8JBM11404852787 3 [PROPOSED] ORDER. ON MOTION TO CONFIRM SALE OF RECEIVERSHIP ASSETS 30 1 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 severable and mutually dependent. IT IS FURTHER ORDERED THAT, this Order is final and immediately effective upon entry. IT IS SO ORDERED. APR 0 9 2012 Dated: , 2012 JOEL M, PRESSMAP11 HON. JOEL PRESSMAN SAN DIEGO SUPERIOR COURT JUDGE -5-- NJ 227374952v2 March 4. 2012 w0e-WEST:8JBMI14048527873 [PROPOSED[ ORDER ON MOTION TO CONFIRM SALE OF RECEIVERSHIP ASSETS 31 EXHIBIT A 32 ASSET SALE AND PURCHASE AGREEMENT This Asset Sale and Purchase Agreement (the "Agreement') is dated as of March 5, 2012 (the "Execution Date"), by and among Douglas P. Wilson acting as receiver (tire "Receiver") over the Receivership Assets (defined below) and for the Receivership Estate (defined below) (the "Seller"), and Shelter Island Opportunity Fund, LLC, a Delaware limited liability company ("SIOF"), or its designee (the"Purchaser"). MAME A. On May 18, 2011, SIOF tiled a "Complaint for Breach of Contract; Possession of Personal Property; Common Counts; Appointment of a Receiver" (the "Complaint") in the Superior Court of the State of California for the County, of San Diego, Central Division (the "Superior Court") entitled Case No. 37-20I 1-00091420-CU.BC.CTL (the "Casa"). NexHorizon Communications, Inc. ("Communications"), NexHorizon Broadband of Southern California, Inc. ("Broadband") and Green Planet, Inc. ("Green Planet" together with Communication and Broadband, "Defendants') are Defendants in the Case. B. On July 20, 2011, the Superior Court issued en "Order Appointing Receiver and Temporary Restraining Order in Aid of Receiver, Order to Appear and Show Cause Why Appointment Should Not lie Confirmed" (the "Receivership Order') that, among other things, appointed Douglas P. Wilson as Receiver. The assets of the Receivership include all real and personal property of the Defendants including, without limitation, inventory, account receivables, goods, books and records, equipment, general intangibles, fixtures, and any and all causes of action of the Receiver, including any causes of action against the Defendants (or any of them) and their respective officers, directors, representatives (the "Receivership Assets the control persons, agents, and receivershipover the ' Entry of Receivership Order commenced the Receivership Assets (the "Receivership Assets were formerly used by Communications and Broadband, Estate"). The Receivership t ie Receiver, to operate a cable television and intend service and are lacuVistaly used tithe City (as so operated and as so currentlyo usiness in Chula Vista and National pealed, the "Baslaen'), C. Ou February 6, 2012, the Receiver filed his "Ex Paste Application for Approval of the Bid Procedures and Auction Procedures to Sell Receivership Assess" (the "Bid Procedures Application') which sought approval of certain bidding procedures and sale connection with sale of the Receivership Assed to SIOF or to any other 1 cxd indefined in the Bid Procedures Application. At a continued hearing on thealBid Procedures Application on March I, 2012, the Superior Court issued a tentative ruling indicating its approval of the Bid Precedents Application in its entirety. The hearing on the Bid Procedures Application has been continued to March 6, 2012 at 8:30 a.m. for the sole purpose of submitting an executed Copy of this Agreement to the Superior Corot and the City of Chula Vista. D. Purchaser desires to purchase, and Seller desires to sell, the Receivership Assets (the "Sale") subject to the terns and conditions set faith herein. Therefore, the patties, intending to be legally bound, hereby agree as follows: NJ227.333,r99vrlr-12 33 SECTION 1. )2EFINtT1ONS. As used in this Agreement, the following terms have the following meanings: "Accounts Receivable" has the meaning set forth in Section 2.l(aXxiv). "Affiliate" means any Person that, directly or indirectly, controls, is controlled by, or is under common control with, the subject party. For purposes of the preceding sentence, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power (I) to vote more than 24%e of the securities having ordinary voting power for the election of directors or managers of the controlled Person, or (ID to direct or cause the direction of management and policies of the controlled Per�+a, wheth r =Inrush the ownership of voting securities or by Contract or otherwise. "Agreement" means this Asset Sale and Purchase Agreement, as amended and in effect from time to time. "Ancillary Agreements" means collectively the Bill or Sale, the Title Certificates, the Assignment and Assumption Agreement and the other agreements, documents and instruments to be executed in connection with the Closing. "Assignment and Assumption Agreement" has the meaning set forth in Section 2.4(a)(ii). "Assumed Agreements" has the meaning set forth in Section 2.2(b). "Assumed Agreements and Leases" has the meaning set forth in Section 2.2(a). "Assumed Liabilities" has the meaning set forth in Section 2.4(axii). "Automobiles"�means the automobiles listed an Schedule 2.l(a)(ii). #'Baiay. ' . irau_""'agora frrIe urieming se froth in 8e `iuni:ls'.. , ....... "Bid Procedures Application" has the meaning set forth In Paragraph C of the Preamble. "Sid Procedures Order" means the order approving the Bid Procedures Application which shall be in substantial conformity in all material respects with the form of order annexed hereto as Exhibit F. -Bill of Safe' has the meaning set forth in Section 2.3. "Broadband" has the meaning set forth in Paragraph A of the Preamble. "Budget" has the meaning set forth in Section 12.3. "Business" has the meaning set forth in Paragraph A of the Preamble. 2 34 "Bodeen Days" means days other than Saturdays, Sundays and days on which banks in California are authorized or obligated by law to be dosed. "Cash" shall mean all cash and cash equivalents held by or for the benefit of on deposit with (but excluding any Deposits) or In transit to, the Seller. "Cash Payment" has the meaning set forth in Section 3.1(c). "Closing" has the meaning set forth in Section 4.1. "Closing Date" has the meaning set forth in Section 4.1. "Code" means the internal Revenue Code of 1986, as amended "Communications" has the meaning set forth in Paragraph A of the Preamble. "Complaint" has the meaning set forth in Paragraph A of the Preamble. "Consideration" has the meaning set forth in Section 3.1. "Con consuitin agreement, means any written or oral contact, service order. employment agreement, 8 greement, Insurance Contract, employee benefit pension plan agreement, purchase order. supply contract, service contract, collective management agreement, option agreement, indenture note. bond,argaining ag reement with , cony mi mr m or q�� or tour te. leasc.l'tcerse, commitment or agreement. arrangement or commitment that is binding upon a Person or its property. "Contract Deposit" has the meaning set forth in Section 3.3. "Defendants" has the meaning set forth in Paragraph A of the Preamble. "Deposits" mean any sums deposited or payment as security or paid in advance of goods oor services or otherwise by the Seller to any person including deposits with landlords,utility_ ganies,insurance conpaaieaorvends.-:x_= _._ . " _rs - - �1 i , ar = "Disclosure Schedule" means any numbered schedule referenced herein or delivered herewith. "Dollars" and "S" mean United States dollars. "Domain Nantes" has the meaning set forth in Section 5.5. "Employees" has the meaning set forth in Section 5.16. "Excluded Assets" has the meaning set forth in Section 2.1(b). "Excluded Liabilities" has the meaning set forth in Section 2.4(c). -Execution Date" means the date ofexecution of this Agreement. 3 35 "Financial Assurance Instruments" has the meaning set forth in Section 5.5. "Fixed Assets" has the meaning set forth in Section 2.1(a)(ii). "Green Planet' has the meaning set forth In Paragraph A of the Preamble. "Hazardous Materlab" means any chemicals, pollutants, contaminants, wastes and toxic substances: (a) the presence of which requires reporting, investigation, removal or remediation under any Environmental Law; (b) that are defined to a "hazardous waste," "hazardous substance," "pollutant" or "contaminant' under any Environmental Law; (c) that are toxic, explosive, corrosive, flammable, ignitable, infectious, radioactive, reactive, carcinogenic. mutagenic or otherwise hazardous and are regulated as such under any Environmental Law. (d) the presence of which poses a hazard to the health or safety of humans; or (e) that contain polychlorinated biphenyls, asbestos and urea formaldehyde. "Insurance Contract" shall mean any automobile liability insurance policies, commercial liability. workers compensation insurance policies, insurance policies related to real property (whether leased or owned), cargo insurance policies, general liability policy, key man insurance policy, life insurance policy, or other policies of insurance under which Seller was the insured or, in the case of key man, life, or other similar policies, under which Seller and/or the Estate was the beneficiary and all rights of any nature with respect thereto including, without limitation, all insurance recoveries theretutder and all rights to assert claims with respect thereto. "Intellectual Property" means registered trademarks or service marks and all trademark and service mark applications, all common law trademarks, trade names, trade dress and logos, all copyrights (including copyrighted content on intemet sites to the extent related to the Business), all domain names. websites, and extensions thaw all know-how, trade secrets and other confidemiai information, inventions, ideas, discoveries, patent applications and granted patents (including any and all continuations, continuations -in -part, additions and divisions thereof, and any and ail patents issuing from the patent applications, and any reissues, reexaminations, renewals, extensions, and substitutions of any of the patents). and all industrial designs, owned by Seller andlor the Estate, and any registrations and applications thmefor, and ..a databelm.4raiga ua;.;b schen n--d &a collections. "Knowledge of Seller" means the actual knowledge of Seiler and the professionals of the Douglas Wilson Companies that have provided services in connection with the Case gained through the the Seller's performance of his duties pursuant to the Receivership Order without any further duty to investigate and without imputation of any knowledge. For absence of doubt, "actual knowledge" as used in this paragraph means only information of which the Seller is actually and presently aware and does not include any information that could have or should have been discovered by the Seller. "Lease" means any written or oral lease of real property together with all buildings, facilities, structwes and improvements located an such teal property. all rights and privileges pertaining to such real property or to any of such buildings, facilities, structures and improvements, and all equipment, machinery, fixtures, furniture and other tangible property owned by Seller located at any such location, including, without limitation, all attachments, 4 36 appliances, lighting flxtures, signs, doors, partitions, plumbing, heating, air conditioning, wiring, telephones, security systems, carpets, floor coverings, wall coverings, office equipment, combinations, codes and keys, and any other furniture, fixtures, equipment and improvements, fixtures, installations, machinery, equipment and other property attached thereto (collectively, the "Leased Real Property"). "Leased Real Property" has the meaning set forth in Section 2.1(aXi). "License Agreements" has the meaning set forth in Section 5.5. "Lien" means any mortgage, pledge, charge, security interest, encumbrance, lien (statutory or other), conditional sale agreement or legally cognizable security interest of any kind. "Material Adverse Effect" means a circumstance, state of facts, event, consequence or result that, individually or in the aggregate, materially and adversely affects the Purchased Assets, the Business, results of operations or prospects, or the cable industry as a whole, or materially impairs or delays Seller's ability to effect the Closing. "Material Contract" means: (i) A Contract for the employment of any offrcer, individual Employee or other Person on a full-time, part-time, consulting or other basis or relating to loans to officers, directors or managers; (ii) alt agreements or indentures relating to borrowed money or other indebtedness or the mortgaging, pledging or otherwise placing a Lien on any asset or group of assets of Seller, (iii) all Contracts under which Seller has advanced or loaned any other Person amounts; :. .. _ . (iv) _ __ any document granting a pgwer of attorge - o, conduct of the Business; -ems ..� y= (v) any option or preferential right to purchase any assets or property tights of the Business; (vi) any guaranty, performance bond or similar agreement; (vii) any Contract under which Seller is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed One Thousand Dollars (S1,000); (viii) any assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property) or 5 37 (ix) any warranty agreement with respect to the Business or the Purchased Assets. "Other Assets" has the meaning set forth in Section 2.1(a)(vii). "Permits" means all material licenses, permits, franchises, authorizations and approvals issued or granted to Seller with respect to the Business by the federal government. any state or local government, any foreign national or local government. or any department, agency, board, commission, bureau or Instrumentality of any of the foregoing and all pending applications therefore. "Person" means any individual, corporation, limited liability company, partnership, John venture, association, joint-stock company, tract os uninearizraseql organization. "Purchase Price" has the meaning set forth in Section 3.1(a). "Purchased Assets" has the meaning set forth in Section 2.1(a). "Purchaser" has the meaning set forth in the introductory paragraph of this Agreement. "Receivership Estate" has the meaning set forth in Paragraph B of the Preamble. "Receivership Order" has the meaning set forth in Paragraph B of the Preamble. "Records" has the meaning set forth in Section 2.1(a)(iv). "Sale" has the meaning set forth In Paragraph F of the Preamble. "Sale Motion" means the motion to be filed with the Superior Court seeking entry of the Sale Order, which shall be in forme and substance acceptable to Purchaser and which is intended to give sufficient notice to all persons required in accordance with the requirements of California law and the terms and conditions of this Agreement and the provisions of the Sale Order. "Side der" mearrs• the order appmvir g the Sale Motion, the Saie and this Agreement and which shall be In substantial conformity in all material respects with the form of order annexed hereto as Exhibit G. "Schedule" has the meaning set forth in Section 5. "Seller" has the meaning set forth in the introductory paragraph to this Agreement. "Taxes" means all taxes however denominated, including any interest, penalties or additions to tax that may become payable in respect thereof, imposed by any governmental body, which taxes shall include, without limiting the generality of the foregoing, all income taxes, payroll and employee withholding taxes, unemployment insurance, social security, sales and use taxes, excise taxes, franchise taxes, gross receipts taxes, occupation taxes, real and personal property taxes, stamp taxes, transfer taxes, workmen's compensation taxes and other obligations 6 38 of the same or a similar nature, whether arising before, on or after the Closing; and "Tax" shall mean any one of them. "Tax Returns" means any return, report, information return or other document (including any related or supporting information) filed or required to be filed with any govemmastal body in connection with the determination, assessment, collection or administration of any Taxes. `Title Certificates" means the certificates of title to be executed by Seller and delivered to Purchaser at Closing transferring title to Purchaser of the Automobiles. "Wind -Up Fees" has the meaning set forth in Section 123. SECTION 2. PURCHASE AND SALE OF THE PURCHASED ASS_ECS1 Section 2.1. phased Assets, (a) Subject to the tams and upon the conditions set forth herein, Seller shall sell, convey, transfer, assign and deliver to Purchaser, and Purchaser shall purchase and acquire from Seller, on the Closing Date, an Legal and beneficial right, rile and interest in and to the Receivership Assets, except for the Excluded Assets (as defined below) (collectively, the "Purchased Assets"). The Purchased Assets shall be sold, transferred, assigned and delivered free and clear of any Liens, claims and interests and shall specifically include, without limitation, all legal and beneficial right, title and interest in and to the following: (1) all of the title, rights and interests in and to the Leases and the Leased Real Property identified on Schedule 2.1falfilas being assigned, to the extent the same can be assigned, to Purchaser; (ii) all machinery, Automobiles. furniture, fixtures, tooling, spare parts, supplies, office equipment, computers, telephone and other communications systems and switches, other office assets, maintenance equipment, inventory (whether on hand or on censignmen4), finish :goods, raksfuller al asikWutitin progress, ant all 'other tatlgibe personal property relating to the Business, including the items listed on Schedule 2.1.(a)(iil(collectively, the "Fixed Assets"); (iii) all rights under the Contracts and Leases identified by the parties for assignment, to the extent the same can be assigned, to Purchaser on Schedule 2.1falfiii) (collectively, the "Asslgned Agreements and Leases"); (iv) all financial books, accounting records, files, lists, publications, and other records and data relating to the Business, regardless of the medium on which such information is stored or maintained (the ''Records"); (v) all general intangibles, (vi) all instruments, securities and investment property; 7 39 (vii) all goodwill relating to the Business; (vi l) all customer lists used in the Business or in connection therewith; (ix) all Cash as of Closing; (x) all intellectual Property including without limitation all intellectual Property listed on Schedule 2.1[0(4 (xi) all Permits and all financial assurance instruments, including letters of credit and surety, or other bonds benefiting or relating to the Business; (xii) all accounts receivable and all notes and other receivables: of every kind or character, and any instruments evidencing the foregoing (the "Accounts Receivable") and all causes of action specifically pertaining to the collection of the foregoing; (xili) all claims, rights and causes of action of Seller, including, without limitation, any and all causes of action of the Seller against Defendants (or any of them) and their respective officers, directors, managers, control persons, agents, and representatives ("Estate Actions"); (xiv) the telephone and facsimile numbers crrrendy used in connection with the Business; (xv) the depository accounts and lockbox arrangements benefiting the Business, including those listed on Scheduk 5.5(f); to the $ (xvi) all Deposits and prepaid expenses as of the Closing Date relating Business; (xvii) all insurance Contracts and claims thereunder of Seller, • (sviii) any other er le or personal or mixed) owned, held or used byassets udkgTax attributesex luding�Tax refunds accruing as of the Closing Date, but including any other refunds, loss carryforwards, claims, defenses, credits or similar benefits), and all other assets of any kind or nature whatsoever whether or not used in the Business (the "Other Assets"). (xix) The Purchased Assets shall not include any of Seller's right, title or interest in or to any assets that Purchaser specifically excludes at or prior to the Closing (collectively, the "Excluded Assets"). Purchaser shall deliver a list of Excluded Assets to Seller at least two (2) business days before Closing. 1 40 Section 2.2. Assitnment of Leases and Contracts. Schedule 2.1(axiii) lists all Contracts and Leases of Seiler that Purchaser has designated to be assigned, and can be assigned, by Seller to Purchaser at Closing (the "Assigned Agreements and Leases"). Section 2.3. Documents at Closing Date. The sale, transfer, assignment and delivery by Seiler of the Purchased Assets to Purchaser, as herein provided, shall be effected on the Closing Date by the due execution and delivery (notarized where necessary) of the bill of sale ("Bill of Sale"), Title Certificates, and an Assignment and Assumption Agreement, in the forms attached hereto as ib' , 6, and C respectively. Further, on the the oneClosing Date, Salter, or hand, and Purchaser, on the other hand, shalt each deliver to the other such other documents as are customary in transactions such as the transactions contemplated by this Agreement and as the other shall reasonably request. Section 2.4. Assumption of Assumed Liabilities; Exclusion of Excludes( Liabilftie4. (a) Assumed Liabllik. On the Closing Date, Purchaser shall assume and agree to pay, perform and discharge when due only: (i) the Liabilities and obligations of Sella under the Assigned Contracts and Leases (excluding any liabilities or obligations arising out of any breach by Seller of the terms thereof, violations of law), but only to the extent such liabilities and obligations first arise and ere related to periods subsequent to the Closing Date (the liabilities so assumed, collectively, the "Assumed Liabilities"); (ii) Purchaser expressly assumes no other liabilities of Seller or the Business. The assumption of the Assumed Liabilities shall be effected on the Closing Date pursuant to an Assignment and Assumption Agreement in the form attached hereto as Ex ib t (the "Assignment and Assumption Agreement'). (b) Bxciuded Liabilities. Except as otherwise expressly assumed by Purchaser pursuant to ec is2A2..4im hereof, Purchaser shall not assume or pay, perform or discharge, nor shall Purchaser be responsible, directly or indirectly, forany debts,-liabll, obligations, accounts or trade payables, Contracts. liabilities relating to Taxes, Environmental Laws, Hazard Materials, bulk sales liabilities, transfer Taxes, violation of law, torts, and legal proceedings relating to any Excluded Assets. or any other liability of any kind or nature (fixed or contingent, known or unknown) of Seller that is not an Assumed Liability (all such debts, obligations, payables, Contracts or liabilities being herein referred to as the "Excluded Liabilities"). Section 2.5. Disclosure Schedule Updates; Cure Costs. Notwithstanding anything in this Agreement to the contrary, the Purchaser may revise any schedule setting forth the Purchased Assets and the Excluded Assets to include in the definition of Purchased Assets (pursuant to the applicable schedule) and to exclude from the definition of Excluded Assets, any Contract or Lease or asset of Seller not previously included in the Purchased Assets, at any time up to two (2) business days prior to the Closing Date. Section 2.6. As is, Where is, The Sale of the Purchased Assets is as is, where is, without any representation or warranty as to merchantability or fitness of the Receivership 9 41 Assets or of the Business. Purchaser acknowledges and agrees that it has undertaken taken its own due diligence with respect to the Purchased Assets and the Business, has had access to all such information as it requires to enter into this Agreement and consummate the transactions contemplated, that Purchaser is a sophisticated investor and is fully informed of the risks associated with the Purchased Assets and the Business, and, except as otherwise provided for in this Agreement, Is not relying upon any information provided by the Seller. Seller shalt have no liability from and after the Closing with respect to any representation, or warranty under this Agreement, and ali representations and warranties shall terminate as of the Closing and shall not survive. SECTION 3. CONSIDERATION. Section 3.1. Consideratioq. in consideration of the sae and transfer of the Purchased Assets, Purchaser shall, at the Closing, pay, deliver or assume (collectively, the "Consideration") the following for the benefit of the Sella: (a) The purchase price ("Purchase Price"), which shall consist of a credit bid (the "Credit Bid") by SIOF (or Us designee or transferee) in an amount equal to $2,000,000, subject to increase, or reduction, as provided for in the Bid Procedures Order. (b) Assumption of the Assumed Liabilities; and (c) The provision of the Wind Up Fees (as defined in Section 12.3). Section 3.2. Allocation of Purchase Price. Purchaser and Seller agree to allocate the Purchase Price for all Tax purposes In accordance with an allocation statement to be prepared by Purchaser and presented to Seiler not less than five (5) days after the Closing Date (the "Allocation Statement"), which Allocation Statement shall be prepared in accordance with Section 1060 of the Code, including the regulations promulgated thereunder, and shall be acceptable to Sella in its reasonable discretion. All Tax Returns, including IRS Form 8594, shall be filed consistent with such Allocation Statement. Neither Purchaser nor Seller shall voluntarily take a position on any Tax Return or before any governmental agency,chargpd,xtizh e c_51lection cf any 5,tch Tax Chet is -any manna laconsiistaat with the terns of such Allocation Statement. Section 3.3. Deposit. Purchaser shall provide to Seller upon execution hereof a deposit in an amount equal to ten percent (10%) of the purchase price in the form of either (at Purchaser's sole discretion): (i) a cashier's check made payable to Seller, or (ii) Purchaser's agreement that Seller can offset the deposit against Purchaser's liquidated claims against Communications (the "Contract Depoalt"). The Contract Deposit shall be retained by Seller in the event of a breach hereunder by the Purchaser, SECTION 4. CLOSING, Section 4.1. Closing. Subject to the satisfaction of the conditions set forth in Sections 1 I, 12, and 13 hereof or the waiver thereof by the party entitled to waive the applicabk condition, the closing of the sale and purchase of the Purchased Assets and of the other transactions contemplated hereby (the "Closing") shall take place within three (3) days after the 10 42 date on which the Superior Court enters the Sale Order (which shall be final and non -appealable unless waived by the Purchaser). The Closing shall take place at the offices of Sheppard Mullin Richter & Hampton LLP, 501 West Broadway, 19i6 Floor, San Diego, California, 92101, or at such other place as may be mutually agreed to by the parties hereto. The term "Closing late," as used in this Agreement, shall mean the date on which such Closing takes place and the Closing shall be deemed effective as of the end of business on the Closing Date. The parties acknowledge and agree that time is of the essence with respect to a Closing. Section 4.2. Deliveries at Closing. At the Closing, the parties shall deliver to each other the Ancillary Agreements. SECTION 5. DISCLOSURES OF SELLER. Seller hereby discloses to the Knowledge of Seller as true and correct to Purchaser as follows on and as of the Execution Date and on and as of the Closing Date: Section 5.1. Authorization and Validit of Agreement. Sella has all requisite power and, subject to entry of the Sale Order, authority to enter into this Agreement and each of the Ancillary Agreements to which iris a party and to carry out its oblgadons hereunder and thereunder. This Agreement has been, and as of the Closing Date each Ancillary Agreement to which Seller is a party will be, duly executed by Seller and constitutes. or as of the Closing Date will constitute, the valid and binding obligation of Sella, enforceable in accordance with its terns. Section 5.2. No Conflict or Violation, Subject to the approval of the Superior Court pursuant to the Sale Order, the execution, delivery and performance by Seller of this Agreement and of the Ancillary Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby: (a) do not and will not violate any provision of law or any order, judgment or decree of any court or other governmental or regulatory authority, (b) do not and will not violate or result in a breach of (with due notice or lapse of time or both), conflict with, or result in any violation of or default (with due notice or lapse of time or both) under, or give risc to a right of termination, cancellation or acceleration of d'ny-b61 s1jaifor_tv,loss:of.a-mrateial:-benefit-i errci yiter-tic' obligation of Sella or Purchaser to make any payment under any provision, In each case under any of the Assigned Contracts and Leases or Permits, (c) will not result In the creation or Imposition of any Lien (other than any Lien of SIOF) upon any of the Purchased Assets, and (d) will not result in the cancellation, modification, revocation or suspension of any material Contractor Permit. Section 5.3. Consents and Approvals. Schedule 5.3 sets forth a true and complete list of each consent, waiver, authorization or approval of (a) any governmental or regulatory authority, domestic or foreign, and each declaration to or filing of registration with any such governmental or regulatory authority, and (b) any Person under any Material Contract or Permit, in each case that is required in connection with the execution and delivery of this Agreement by Seller or the performance by Sella of its obligations hereunder and under any Ancillary Agreement and the consummation of the transactions contemplated hereby and thereby. 11 43 Section 5.4. Good Title; Sufficiency of Assets. (a) Except as set forth on Schedule 5.4ta), Seller and the Estate have good and marketable title in and to the Purchased Assets, and Seller and the Estate have (and will have and will convey to Purchaser at the Closing) valid and enforceable leasehold interests in the Purchased Assets leased by Seller, in each case free and dear of any Liens other than the Liens of S1OF. (b) The Purchased Assets are in good operating condition, reasonable wear and tear excepted, suitable for the purposes for which they have been used by Seller. (c) Except for the Excluded Assets, the Purchased Assets will be sufficient in all materiel respects for the continued and t of the Business at and after the Closing in substantially the same manner as conducted prior to the Closing by Seller. Section 5.5. Disclosures Related To Purchased Assets, (a) Real Pronetv,Schedule 5.5fal sets forth each parcel of Leased Real Property used in the Business. Leases for each Leased Real Property are each in full force and effect. There are no leases, subleases, options, rights of first offer, rights of first refusal or other conditional or unconditional rights, options or agreements, written or oral, granting to any Person the right to purchase, use or occupy the Leased Real Property or any portion thereof There are no proceedings pending and brought by, or threatened by, any third party which would result in a change in the allowable uses of the Leased Real Property or which would modify the right of Purchaser to use the Leased Real Property (including access rights) for its current uses after the Closing Date. (b) Permits. Schedule 5,5(b) sets forth a true and complete list of all Permits. Except as set forth in Schedule 5,5fb) each Permit has been duly obtained, is valid and in full force and effect, and is not subject to any pending or, threatened administrative or judicial proceeding to revoke, cancel, suspend or declare such Permit invalid in any respect, and are sufficient and adequate to pemut the continued lawful conduct. of the Business in .rho manner =,:--- stlr _ondurted by Seller. s*.d none of the operations of t e Business is being-wndueted• in a manner that violates any of the terms or conditions under any existing Permit_ Prior to Seller's appointment as Receiver, Defendants' cable franchise license expired. Seller has not applied to renew that license nor has Seller applied fora new license. (c) Ljtittation. Except as set forth on Schedule 5.5(4 there are no claims, actions, suits, proceedings, labor disputes or investigations pending or, threatened, before any national, state or local court or governmental or regulatory authority, domestic or foreign, or before any arbitrator of any nature, brought by or against Seller or Seller's respective directors, employees, agents or Affiliates, involving, affecting or relating to the Business, the Purchased Assets or the transactions contemplated by this Agreement, and neither the Business nor the Purchased Assets is subject to any order, writ, judgment, award, Injunction or decree of any national, state or local court or governmental or regulatory authority or arbitrator, domestic or foreign. 12 44 (d) Mamie! Cgntracts, Schedule 5.5(d1 sets forth a true and correct list and description of each Material Contract and each Material Contract is valid, binding and enforccabk in accordance with its terms, and is in fun force and effect on the Execution Date. (e) Intellectual Property. (i) Schedule 5.5(e) sets forth a complete and correct listing of ail (a) registered trademarks and service marks and applications therefore, (b) patent applications and granted patents. (c) all domain names owned or used by the Seller (the "Domain Names"), (d) licenses to Intellectual Property received by Seller with respect to the Business (collectively, the "License Agreements"). and (iv) any other Intellectual Property, in each case that are owned or used by Seller and forming part of the Purchased Assets. Except as described on Schedule 5.5(e), (a) all Intellectual Property listed therein is owned by Seller free and clear of all Liens (other than Permitted Liens) and is not the subject of any pending or, threatened challenge, (b) there are no unresolved claims made and these has not ban communicated to Sdler the threat of any claim that the use of such Intellectual Property is in violation or infringement of any service mark, patent, trademark. trade name, trademark or trade name registration, copyright or copyright registration of any other Person; and (c) Seller has not granted any license to any of such Intellectual Property and Sella has no legal obligation to grant any such license. (ii) With respect to each Domain Name listed on Schedule 5.5(e), Schedule 5.5(e) lists (a) whether each such Domain Name was obtained directly from a domain name registrar, (b) for any Domain Name acquired from other than a domain name registrar, the identity of whom obtained from. (c) the registrar where the Domain Name is registered, and (d) the expiration date of the Domain Name. To the Knowledge of Seller, Seller has not received any written or oral communications from third parties challenging the use of any domain name and to the Knowledge of the Seller no basis for such challenge exists. No one is using domain names that are similar to the Domain Names. Except as set forth on Schedule 5.5 each of the Seller's websites has been developed by Seller and all content and source code thereof is owned by Seller. ,.. .." tm.r''TflK aw laid AwVnW'Se duI $.5(()'sets forth a list Or all banks and other financial institutions with which Seller has an account. a lock box, a safe deposit box or borrowing authority. specifying with respect to each the name and address of the bank or other financial Institution, the account number and the narnes of persons authorized as signatories thereon or to act or deal in connection therewith (collectively, "Bank Accounts"), (g) Financial Instruments. Schedule 5.5(al contains an accurate and complete list of all outstanding financial assurance instruments related to the Permits and the Business. including performance bonds, letters of credit and surety bonds (collectively, "Financial Asaarance Instrumenahn"). (h) Insurance. Schedule 5.5(h) contains an accurate and complete list of all insurance Contracts. All insurance Contracts are in full force and effect, all premiums with respect thereto covering all periods up to and including the Closing Date have been paid, and Seller has not received notice of cancellation or non -renewal of any Insurance Contract, nor been 13 45 refused any insurance, nor has its coverage been limited by any carrier, in each case in connection with Seller's ownership of the Purchased Assets and operation of the Business. (i) Delivery of pocuments. Seller has delivered to, or made available to, Purchaser true and complete copies of: (i) the Leases with respect to all of Leased Real Property; (a) Permits that are currently in existence; (iii) Material Contracts; (iv) all documents related to the Intellectual Property; (v) Bank Accounts; (vi) Financial Assurance instruments, (vil) Insurance Contracts, and all Receiver's reports and pleadings filed and/or served itt the Case. Section 5.6. lia_Mpign. (a) Transfer Taxes. Purchaser shall be responsible for all state and local transfer, excise, value-added, and all sales and use Taxes and eh recording and filing fees that may be imposed solely in connection with, by reason ot the sale, transfer, assignment and delivery of the Purchased Assets. (b) Allocation of Taxes. Purchaser shall be responsible for all real and personal property Taxes or similar ad valorem obligations levied with respect to the Purchased Assets for any taxable period subsequent to she Closing Date. Section 5.7. Employees. Seller has provided an accurate list of (a) all of the employees of the Business as of the Execution Date (collectively with employees of the Business hired by Seller after the Execution Date and prior to the Closing Date, the "Employees"), and (b) those Employees an disability, FIA A, military or other leave or absence other than scheduled vacation or jury duty as of the Execution Date. Section 5.B. Labor Matters; Employment Agreements. (a) Other than as set forth on Schedule 5.6, Seller has no employment agreements with any of the Employees which are not terminable at will and without material cost or expense at the election of Seller. ,(b) All i_iep ndect con ractois providiog equipment and/or services to Sella;; have been retained under valid Contracts and qualify for independent contractor status under all applications laws, including existing internal Revenue Service rules and interpretations. (c) Seller has timely paid or adequately accrued all contributions required to be paid by Seller to any unemployment compensation fund or other fund to which Seller i9 required to contribute under the laws of any applicable state with respect to periods through the Closing. Section 5.9. Environmental Matters and Employee Health }Safety Matters. (a) Except as set forth in Schedule 5.9, (i) Seller Is In material compliance with ail Environmental Laws (as defined below); (il) Seller has obtained all applicable Environmental Permits (as defined below); (iii) all such permits are in Hull force and effect; and (iv) Seller is in material compliance with all such Environmental Permits. As used herein, '`Envtronmeatal Laws" shall mean all applicable federal, state, local and foreign laws, 14 46 ordinances, rules, regulations, judgments, orders, or decrees relating to the protection or regulation of human health, safety, or the environment enacted as of the Execution Date, including to the extent applicable, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. §§ 9601 et seq.), the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. §§ 6901 et seq.), the Clean Water Act (33 U.S.C. §§ 1251 et seq.), the Atomic Energy Act (42 U.S.C. § 2201 et seq.), and similar state and local laws. "Environmental Permits" shall mean all applicable licenses and Permits or other approvals required under applicable Environmental Laws in connection with the ownership or operation of the Business. None of the Leased Real Property is listed in the Environmental Protection Agency's National Priorities List of Hazardous Waste Sites under CERCLA or any similar state list under a comparable state statute. (b) ` Except as set forth in Schedule 5.9, there is no pending or threatened claim, litigation, or administrative proceeding, or known prior claim, litigation or administrative proceeding arising under any Environmental Law involving the Purchased Assets, the Business or the Leased Real Property. (c) During the period that Seller has conducted the Business on the Leased Real Property, except in material compliance with all Environmental Laws, to the Knowledge of Seller, Seller has never stored, handled, recycled, reclaimed, disposed of, or contracted for the disposal of Hazardous Materials In connection with the Business, and, no such Hazardous Materials has been disposed of on the Leased Real Property. During the period that Seller has conducted the Business on the Leased Real Property, there have been no Releases of any Hazardous Materials into the environment or onto, tinder or about the Leased Real Property in connection with the Business, except in compliance with all Environmental Laws. Real Property, During the period that Seller has conducted the Business on the Leased perry, except in material compliance with all Environmental Laws, Seller has never stored, handled, recycled, reclaimed, disposed of, or contracted for the disposal of, Hazardous Materials in connection with the Business, and no such Hazardous Materials have been disposed of on the Leased Real Property. During the period that Seller has conducted the Business on the Leased Real Propenythe c have been no Releases of any Ilazergoits.Materials Alto the environment% MN -under -or about tlie-Leiheiliteal P"rdpert$ fig connection with the Business, except in compliance with all Environmental Laws. SECTION 6. COVENANTS OF SELLER, Section 6.1. Conduct of Business Before the Closing Date. During the period from the Execution Date and continuing until the earlier of the termination of this Agreement in accordance with Section 11 or the Closing, except (1) for any limitations on operations imposed Receivership Order, (2) as otherwise expressly contemplated by this Agreement or (3) with the prior written consent of the Purchaser, Seller shalt not (a) make any material change in the conduct of the Business, or enter into any transaction with respect to the Business other than in the ordinary course of business consistent with past practices; 15 47 (b) subject any of the Purchased Assets, or any part thereof, to any Lien or suffer such to exist other than Liens of S1OF; (c) acquire any assets or properties related to the Business, or enter into any other transaction related to the Business, other than in the ordinary course of business consistent with past practice and in accordance with the terms of the Receivership Order and/or as otherwise directed by Purchaser and approved or permitted by order of the Superior Court; (d) knowingly take any other action that would cause any of the disclosures made by Seller in this Agreement not to remain true and correct in any material respect; (e) enter into, amend or terminate any Material Contact, or otherwise effect a material transaction inconsistent with Seger's past practises and/or as otherwise directed by Purchaser and approved or permitted by order of the Superior Court or (1) commit to do any of the foregoing. Without limitng the generality of the foregoing, Seller shall, until the Closing Date, opetate the Business in the usual and ordinary course and instil material respects in compliance with all laws applicable to the Seller, comply with the terms of the Receivership Order, shall maintain the Purchased Assets in accordance with past practice, and in the event that Seller substitutes, disposes of or abaadons any Purchased Assets in compliance with the terms of this Section 6.1, Sella will likewise replace such assets with Purchased Assets of like kind and quality to the extent necessary to ensure the continued operation of the Business in the ordinary course and consistent with pest pracdce. Section 6.2. Consents and Approvals. Sella shall use commercially reasonable efforts to obtain all consents and approvals of governmental entities and other third parties, if any. required to effect the transactions contemplated by this Agreement. Without limiting the foregoing, at Purchaser's request prior to Closing, as soon as practicable after the Execution Date, Sella shall make or cause to be made all such further filings and submissions. and take or cause to be taken such further action, as may reasonably be required in connection therewith on a tim`t .'pis. Sam agrees to promptly provide Pui;cisser with copies'of ail irssal consent,' approval, termination or confirmation letters provided to Seller putsuant to filings made under this Section. Section 6.3. Approvals from the Superior Court. Seller shall use its best efforts to obtain approval of the Bid Procedures Order and shall within five (5) Business Days' after entry of the Bid Procedures Order fife and serve on all parties added to notice the Sale Motion which shall be set for hearing on regular notice. Section 6.4. Notices of Certain Events. Seller shall promptly notify Purchaser (and deliver to Purchaser any related information) of: (a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement, and any notice or other communication from any such Person alleging that such consent is not likely to be obtained prior to Closing•. 16 i 48 Section 5; (b) any change that affects accuracy of the disclosures made by Sella in (c) any written objection or commencement of any proceeding, suit. charge, complaint, claim, or investigation that challenges or threatens to restrain or prohibit the transactions contemplated hereby; or (d) any breach of covenant, or agreement of Seller under this Agreement. SECTION 7. COVENANTS OF SELLER. ANDJURCHASEi , Section 7.1. Execution and Delivery of Ancillary Documents. Sella and Purchaser shall take such reasonable actions as required to cause the Ancillary Documents to be executed and delivered at Closing. Section 7.2. Rej ed Jurisdiction The Purchaser and the Seiler agree that the Superior Court shall retain jurisdiction to enforce all aspects of this Agreement. The parties acknowledge and agree that time is of the essence, that any failure to timely perforrn their obligations hereunder would constitute irreparable harm to a party and that the Superior Court may grant specific performance to the Seller or Purchaser with relief to be granted on a shortened notice with regard to all remedies for the Seller and the Purchaser. Section 7.3. Video License. Purchaser covenants to make commercially reasonable efforts to apply for a California State Video Franchise License within 25 days after the Closing Date. Section 7.4. Further Agreentenq. From and after the Closing Date, Seller shall (a) promptly deliver to the Purchases any mail or other communication received by it after the Closing Date and relating to the Purchased Assets or the Assumed Liabilities, (b) promptly transfer in immediately available Hands to the Purchaser any cash, electronic credit or deposit received by Seller but solely to the extent that such cash, electronic credit or deposit are Purchased Assets and (c) promptly forward to the Purchaser any checks or other instruments of payment that it iFeivc4 but solely to the extent that such cbedcs nrollur!,.*strunrentanre ..:< PuichasedfXssets.`Froni and after the Closing Date, Sella shali refer all inquiries with respect to the Purchased Assets and the Assumed Liabilities to the Purchaser, and the Purchaser shall refer all inquiries with respect to the Excluded Assets and the Excluded Liabilities to Seiler. SECTION 8. CONDITIONS PRECEDENT TO PRFOR1446NCE 0Y SELLER, The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or before the Closing Date, of the following conditions, any one or more of which may be waived by Seller in its sole discretion; Section 8.1. Performance of the Obligations of Purchaser. Purchaser shall have performed in all material respects all obligations required under this Agreement to be performed by Purchaser on or before the Closing Date. Secton 8.2. Consents and Aporovalk 17 49 (a) ,Fntry of Orders. The issuance by the Superior Count and entry on the docket of the Case of a final, non -appealable (i) Bidding Procedures Order and (II) Sale Order. (b) Delivery of Ancillary Agreements. Purchaser shall have executed and delivered to Seller each of the Ancillary Agreements to which it is a party. SECTION 9. CONDITIONS PRECEDENT TO PERFORMANCE pY PURCHASER The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, at or before the Closing Date, of the following conditions, any one or more of which may be waived by Purchaser in its sole discretion: Section 9.1. Disclosures et" tlel(g, Purd-,,J,54 shall have received the disclosures required by Seller herein and shall receive a certification from Seller prior to the Closing Date that no material information within the Seller's Knowledge has not been disclosed. Section 9.2. Performance of the Obligations of Self. Seller shalt have performed in all respects all obligations required under this Agreement to be performed by Seller on or before the Closing Date, specifically including, but not limited to, Seler's observance of, compliance with, and performance of the covenants contained in Section 6, and Purchaser shall have received a certificate dated the Closing Date and signed by the Seiler to that effect. Section 93. Consents and AnDroyalg. (a) The issuance by the Superior Court and entry on the docket of the Case of a final, non -appealable (i) Bidding Procedures Order and (if) Sale Order, (b) All consents, waivers, authorizations and approvals of any third parties and all governunemtal or regulatory authority, domestic or foreign, that are required in•oonnection with the execution, delivery and performance of this Agreement shall have been duly obtained and shall be in full force and effect on the Closing Date. (c) All consents, waivers, authorizations, approvals, declarations and restistrations: r" = `eoKxls 51 shall have been duly obtained and shall be in full force and effect on the Closing C^,a Date, Section 9.4. No Violation of Orders. No preliminary or permanent injunction or other order Issued by any court or governmental or regulatory authority, domestic or foreign, nor any statute, rule, regulation, decree or executive order promulgated or enacted by any government or governmental or regulatory authority, which declares this Agreement invalid in any respect or prevents the consummation of the transactions contemplated hereby shall be in effect or be threatened. Section 9.5. Delivery of Ancillary Attreernentg. Seller shall have executed and delivered to Purchaser each of the Ancillary Agreements to which Slier is a party. Section 9.6. Permits. All of the Permits shall have been transferred or assigned to Purchaser. 18 50 Section 9.7. Occurrence of the Closing Date, The occurred on or before April 13, 2012. SECTION 10. CONDITIONS PRECEDENT TO PERFORMANCE AND THE SELLER. Closing Date shall have BY THE PURCHASER, The respective obligations of Purchaser and Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Purchaser and Seller In whole or In part to the extent permitted by applicable Law): (a) there shall not be in effect any order by a governmental body of competent jurisdiction restraining, enjoining or otherwise probibiting the consummation of the transactions contemplated hereby; (b) the Superior Court shall have (i) entered the Sale Order In form and substance acceptable to Sella and Purchaser and its respective counsel approving the transactions contemplated by this Agreement; and (c) The Closing Date shall have occurred on or before April 13, 2012. SECTION 11. TERMINATION. Section 11.1. Conditions of Termination. Notwithstanding anything to the contrary contained herein, this Agreement may be terminated at any time before the Closing Date as follows: (a) by mutuai consent of Sella and Purchaser; (b) by Sella if there has been a material breach by Purchaser of its representations and warranties or In the observance, or in the due and tamely performance of any of the covenants or agreements contained in this Agreement on Purchaser's part to be performed, and at bgeech shag l_ at have beep cured within dame (3) slays after written notice thereof (c) by Purchaser if there has been a material breach by Seller in the observance, or in the duc and timely performance of any of the covenants or agreements contained in this Agreement on Seller's part to be performed, and such breach shall not have been cured within three (3) days after written notice thereof; or (d) by Purchaser, if the transactions contemplated by this Agreement are not approved by the Superior Court, at no fault of Purchaser. (e) by Seller, if the transactions contemplated by this Agreement are not approved by the Superior Court, at no fault of Sella. (f) by Seller or Purchaser if the transactions contemplated by this Agreement are not consummated by the Closing Date, at no fault of Seller or Purchaser, respectively. 19 51 Section 11.2. Effect of Termination. In the event of termination pursuant to Section 11.1, this Agreement shall become null and void and have no effect, with no liability on the put of Seller or Purchaser, or their respective Affiliates, directors, officers, managers; agents, members or stockholders. with respect to this Agreement. SECTION 12. MISCELLANNEO Section 12.1. Successors and Assigns. Except as otherwise provided in this Agreement, no party hereto shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any such attempted assignment without such prior written consent shall be void and of no force and effect, pmvlded that Purchaser may assign Its rights hereunder to any person, but no such assignrnent shall reduce or otherwise vitiate any of the obligations of Purchaser hereunder. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto. Section 12.2. Govemine Law. Juurisdictinn. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of California, without giving effect to the principles of conflicts of laws thereof. The parties hereto irrevocably elect the Superior Court as the sole judicial forum for the adjudication of any matters arising under or in connection with this Agreement and the other Ancillary Agreements, and consent to the jurisdiction thereat Section 12.3. Expenses and Wind -Up F. (a) Purchaser will pay the reasonable fees and expenses incurred by the Receiver and its counsel In connection with the sale process. execution of this Agreement, Closing, pursuit of contempt proceedings against Green Planet and Alvin Pearson prior to the Closing Date, and expenses incurred by the Receiver in winding up of the Estate (collectively. the "Wind -Up Fees") pursuant to a budget ("Budge") acceptable to Purchaser which Budget shall be subject to a ten percent (10%) variance, and Purchaser will agree to pay such reasonable Wind -Up Fees pursuant to a Certificate of indebtedness to be issued by the Receiver in favas;of.,;_ rani , or otherwise. (b) The parties win use their best efforts to reach agreement prior to the incurrence of additional fees and costs above the Budget to provide for funding of: (i) non material additional fees and costs; (ii) reasonable additional fees and costs; and ({n) unanticipated material changes in the scope of work to be performed. The Seller will provide the Purchaser with dochmtentatlon to support any such additional fees errd costs. To the extent that the parries are unable to reach an agreement within five (5) Business Days' after receipt by Purchaser of a notice in writing from the Seller to Purchaser requesting such adjustment, the Superior Court shall determine the amount of the reasonable adjustment to the Budget For the avoidance of doubt, nothing herein shall expand the scope of the Assumed Liabilities. Section 12.4. Estate Actions. Purchaser shall succeed the Receivership Estate as plaintiff and movant in all litigation comprising the Estate Action after the Closing Date including, without limitation, the contempt proceedings against Great Planet and Alvin Pearson 20 52 and Seller shall cooperate with Purchaser and execute and file any documents and pleadings necessary to effectuate the provisions of this Section 12.4. Section 12.5. Sevectabtlity. In the event that any part of this Agreement is declared by any court or other judicial or administrative body to be null, void or unenforceable, said provision shall survive to the extent it is not so declared, and all of the other provisions of this Agreement shall remain in MI force and effect. Section 12.6. flier. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (a) on the date of service if served personally on the party to whom notice is to be given; (b) on the day of transmission if sent via facsimile transmission to the facsimile number given below, and telephonic con6anation of receipt is obtained promptly after completion of transmission; (c) on the day after delivery to Federal Express or similar overnight courier or the Express Mail service maintained by the United States Postal Service; or (d) on the fifth day after mailing, if mailed to the party to whom notice is to be given, by fast class mail, registered or certified, postage prepaid and properly addressed, to the party as follows: If to Seller. Geno Rodriguez Douglas Wilson Companies 450 B Street, Suite 1900 San Diego. CA 92101 Fax No.: 619.906.4367 If to Purchaser. Michael Fein Shatter i7ppdrtun ty Fund, LLC 535 Fifth Avenue 25th Floor New York, NY 10017 Fax No.: 212-888-0334 With a copy to (which shall not constitute notice): 3. Barrett Manun Sheppard Mullin Richter & Hampton LLP 501 West Broadway.19th Floor San Diego, CA 92101-3598 Fax No.: 619.234.3815 With a copy to (which shall not constitute nodce): Michael H. Goldstein Greenberg Traurig, LLP 2450 Colorado Avenue Suite 400 East Santa Monica, CA 90404 Fax: 310.586.7800 Any party may change its address for the purpose of this Section by giving the other party written notice of its new address in the manner set forth above. Section 12.7. Amendments: Waivers. This Agreement may be amended or modified, and any of the terms. covenants, representations, warranties or conditions hereof may be waived, only by a written instrument executed by the parties hereto, or in the case of a waiver, by the party waiving compliance. Any waiver by any party of any condition, or of the breach of 21 53 any provision, term, covenant, representation or warranty contained in this Agreement, in any one or more instances, shall not be deemed to be nor construed as further or continuing waiver of any such condition, or of the breach of any other provision, term, covenant, representation or warranty of this Agreement. Section 12.8. Entire Agreement. This Agreement and the Ancillary Agreements contain the entire understanding among the panics hereto with respect to the transactions contemplated hereby, and supersede and replace all prior and contemporaneous agreements and understandings, oral or written, with regard to such transactions. Section 12.9. Parties in interest. Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any Persons other than Seller, Purchaser, and their respective successors aid permitted assigns. Nothing in this Agreement Is intended to relieve or discharge the obligations or liability of any third Persons to Seller or Purchaser. No provision of this Agreement shall give any other third Persons any right of subrogation or action over or against Seller or Purchaser. Section 12.10. 5ectiog and Paragraph Headings. The section and paragraph headings in this Agreement are for reference purposrss only and shall not affect the meaning or interpretation of this Agreement. Secdon 12.11. CQgstrtction. The patties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local or foreign statute shall be deemed to refer to such statute as amended and to all rules and regulations promulgated thereunder, unless the context requites otherwise. The word Include" or"including" means include or including, without limitation. AU references in this Agreement to Sections, Exhibits and Schedules shall be deemed references to Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require. Sccdora i2.i2. Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile and PDF email format), each of which shall be deemed an original, but all of which shall consdtutethe same instrument Section 12.13. Time juLthaggzs. lime is of the essence with respect to the performance of all obligations provided herein and the consummation of all transactions contemplated hereby. Section 12.14. No Liability. Seller is acting solely in his capacity as Receiver and no risk, obligation or expense shall be the personal risk, obligation or expense of the Receiver or the Douglas Wilson Companies, but shall be the risk, obligation or expense of the Receivership Estate. No liability or obligation of the Receivership Estate shall be an Assumed Liability unless specifically provided for in this Agreement or unless specifically provided for in the Budget. 22 54 SIGNATURE PAGE TO ASSEC_SA,EAND PURCHASE AGREEMENT SELLER: Douglas P. Wilson, as Receiver over all the assets of NexHarizon Communications, Inc., NettHorizon Broadband of Southern California, Inc., and Green Planet Inc. By: Name: Title: PURCHASER: Shelter Wand Opportunity Fund, LLC, a Delaware limited liability company hu nt.a2MM"/ 3.1-t? By Name: Title: 55 S1GNA n;RF, PAGE TO ASSET SALE AND PURCHASE AGREEMENT SELLER: PURCHASER: Hi 227 3f7.199v1 94-12 Douglas P. Wilson, as Receiver over ull the assets of NexHorizon Communications, Inc., NexHerizon Broadband of Southern California, Inc., and Green Planet Inc. fly: Name: Title: Shelter Island Opportunity Fund,1.1.C, a Delaware limited liability com y �/ f�`7 /. ► ' Name:Michael felt Tife:Pdacinal of the Fund's Kunming ing Member 56 LIST Qf EXHIBITS; Exhibit k Exhibit B: Exhibit C: Exhibit D: Exhibit E: Bill of Sale Title Certificates Assignment and Assumption Agreement Bid Procedures Order Sale Order LIST OF SCHEDULES (Draft. notes below) 2.1(aXt): Leases— None known 2.1(aXii): Fixed Assets — See attached schedule 2.1(axiii): Assigned Agreements and Leases 2.1(aXx): Intellectual Property —None known. 5.3: Consents and Approvals — None known 5.4(a): Title Exceptions — None known 5.5(a): Real Property — None known 5.5(b): Permits — Expired cable franchise license. 5.5(c): Litigation — There is some litigation between Nexhorizon and the State regarding unpaid workers compensation. 5.5(d): Material Contracts — The Receiver currently utilizes Go -Staff to provide all employment services at the company 5.5(e): Intellectual Property 5.5(f): Bank Accounts — The company maintiains three accounts at North Island Financial Credit union (account numbers 116636270, 117250329, 117250356) 5.5(g): Financial Instruments— None known 5.5(h): insurance — is currently in place with Chesscom and is not transferrable. The Receiver is currently shopping for a policy that will be transferrable. 5.9: Environmental Compliance and Litigation — None known Ntt 227.333.1224 3-1•12 57 Schedule 2.1(eXIl) FIXED ASSETS The following is a listing of the Fixed Assets developed ftom records of the Defendants. The Receiver has yet to verify the accuracy of the listing of the items on the Schedule and will do so prior to Closing and may remove or add any items to the items on the Schedule. This schedule is not and Is not intended to be a representation or warranty with respect to the items listed herein. Purchaser may investigate whether the assets listed below remain at the premises located at 581 C Street, Chula Vista, CA 91910 by arranging an inspection of the premises through the Receiver. Vehicleg 2003 Chevy Astro, mileage: 50,542 2003 Chevy S 10, mileage: 88.004 1998 Chevy 2500, mileage 88,642 1998 Chevy S 1 O, mileage: 89,523 1995 Chevy Astro, mileage: 105,148 1974 Ford F350, mileage, 67,909 2 coaxial trailers Computers 4 Aces computers (about 3.5 years old) 4 flat screen monitors (about 3.5 years old) 2 printers (about 3.5 years old) 1 work station (over 6 years old) 3 printers (over 6 years old) 1 Dell Laptop (over 6 years old) Furniture VEN lt3CDM19X93B119105 VIN 10CCS145728221635 3 desks (over 20 year old) 1 couch (over 2 years old) 3 chairs (over 2 years old) €quipment Coaxial cable (5,000 ft) Coaxial .500 Coaxial .750 (5,000 ft) 12 ct. Fiber cables (13,000 ft) 40 ct. Amplifier cores 88 miles of overhead coaxial cable(s) (550 MHz) and related supplies 12.5 miles of underground coaxial cable(s) (550 MHz) and related supplies 23 miles of underground coaxial cable(s) (750 MHz) and related supplies 6 miles of overhead fiber cable(s) and related supplies NJ 227.374 V14vf 3-2-12 58 10 miles of underground fiber cable(s) and related supplies CABLE TV SYSTEM EQUIPMENT (bv Rack) Rack 2 Item Qty Description SA PowerVu D9852 1 Receiver SA PowerVu 1)9850 2 Receiver C-Cor DV63I2 RSR 1 Receiver Motorola DSR-4402X 2 Receiver Standard Agile IRD-SC 1 Receiver Standard Agile IRD-II 2 Receiver Video Data Systems 1 Character Generator Sony DVD/VHS Player 1 DVD/VHS Player Rack 3 r Item Qty Description Trilithic EASy Pius 1 Encoder/Decoder/Controller Trilithic IFS-3 I Signal Source Trilithic EASy Messenger 11 I Character Generator WaveTek 3ST 1 Sweep Transmitter Motorola DSR-4402X 3 Receiver SA PowerVu D9850 2 Receiver Motorola DSR4400X 2 Receiver Motorola DSR-4200V 1 Receiver ComPaq 1 TV Guide PC Olson Technologies LCM600 t Modulator Weather Star XL 1 PC Rack 4 Item Video Data Systems Qty 1 Description Character Generator Rack 5 Item GI Commander 8 C8UL Cisco uBR 7246-VXR Rack 6 Qty 1 1 Modulator CMTS Descrietion Gem Qty Description SA PowerVu 139850 4 Receiver Cadco 250E 5 Modulator Motorola DSR-4402X 4 Receiver Standard T V M 450L 6 Modulator GI DSR-4400X 1 Receiver NJ 221, 374.914v112-12 59 Item g2 Description Motorola DSR-4500X Receiver Motorola DSR-6000 1 Receiver Trilithic EASy LS-16P 1 Switch Motorola DSR-4410 2 Receiver Olson Technologies 1 Modulator Rack 7 Item Qty Description SA PowerVu D9850 4 Receiver Standard TVM450L 2 Modulator Motorola DSR-4410 1 Receiver Olson Technologies LCM600 l Modulator Standard Agile SCM S50HP 1 Modulator Trilithic EASy LS-16P 1 Switch Ad Insertion 8 port 1 Switch Ad Insertion PC 1 PC Rack 8 Item Qty Description GI DSR-4500 3 Receiver GI MVP-11 9 Scrambler SA PowerVu 9850 1 Receiver Motorola DSR-4402X I Receiver Olson Technologies LCM600 3 Modulator GI DSR 4400X 1 Receiver GI DSR 4400 1 Receiver Trilithic EASv L S-16P I Switch Motorola DSR-4410 2 Receiver Rack 9 Item Qty Description Harmonic Lightwave HL4000 1 Platform Harmonic Lightwave PS I Power Supply Harmonic Lightwave PWRLink 2 Transmitter Harmonic Lightwave Quad Amp 1 Pre -Amplifier Harmonic Lightwave HTR2000 1 Platform Harmonic Lightwave Power Supply NJ 227.374,91H13.2-12 60 Item PS2I00 Harmonic l,ightwave RCVR US Fibcr Optics 4 Receiver Description Optical Splitter, lx2 Optical Splitter, 1x4 72CT Patch Panet 72CT Splice Trays Cal ACC4000 3 3 1 1 1 Platform Optical Splitter Optical Splitter Patch Panel Splice Trays A10 42" HDTV 23" HDTV Item TVRO TVRO TVRO ltem Qty 2 Test Television t Test Television Description 111.1 227.374,111Iv112.12 Qty 2 4.5meter TVRO 1 5.0 meter TYRO 5 2.8 meter TYRO Description 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHEPPARD MULLIN RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations EDWARD D. VOGEL, Cal. Bar No. 11008I evogel sheppardmullin.com J. BARRETT MARUM, Cal. Bar No. 228628 bmariun@sheppardmullin.com 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619-3 3 8-6500 Facsimile: 619-234-3815 Attorneys for Receiver, DOUGLAS P. WILSON SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR "1 HE COUNTY OF SAN DIEGO SHELTER ISLAND OPPORTUNITY FUND, LLC, a Delaware limited liability company, Plaintiff, v. NEXHORIZON COMMUNICATIONS, INC., a Delaware corporation; NEXHORIZON BROADBAND OF SOUTHERN CALIFORNIA, INC., a California corporation; and DOES I thmugh 100, inclusive, Defendants. Case No. 37-2011-00091420-CU-BC-CTL Related Case No. 37-2010-83634 PROOF OF SERVICE Judge: Hon. Joel M. Pressman W02-WEST:IJBMI W0399866 L 1 -1- 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO t am employed in the County of San Diego; I am over the age of eighteen years and not a party to the within entitled action; my business address is 501 West Broadway, 19th Floor, San Diego, California 92101-3598. On April 5, 2012, 1 served the following document(s) described as: [PROPOSED) ORDER ON MOTION TO CONFIRM AND APPROVE THE SALE OF RECEIVERSHIP ASSETS COMPARED COPY FROM AN EARLIER VERSION OF [PROPOSED' ORDER ON MOTION TO CONFIRM AND APPROVE THE SALE OF RECEIVERSHIP ASSETS on the interested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: Michael Goldstein, Esq Attorneys for Plaintiff, Email: goldsteinmh@gtlaw.com Shelter Island Opportunity Fund, LLC Adam Star, Esq. Email; starra@gtlaw.com Jordan D. Grotzinger, Esq Email: grotzingerj@gtlaw.com Peter Scott, Esq. Email: scottp@gtlaw.com Greenberg Traurig, LLP 2450 Colorado Ave., Suite 400E Santa Monica, CA 90404 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 Christopher Sabol, Esq Email: cgsitm@gmaii.com 1422 Thomas Ave. San Diego, CA 92109 Telephone: (323) 383-1 I55 Karen Rogan, Esq. Attorney for the City of Chula Vista Email: krogan@chulavistaca.gov Office of the City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Telephone: (619) 585-5684 Cell: (619) 921-9153 Attorneys for Defendants, Green Planet; DBA Green Planet Digital W02-WEST-8JDM11403998661,1 Case No. 37-2011.00091420-CU-BC-CTL 63 u 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 William M. Rathbone, Esq. Email: wrathbone@gordonrees.com Gordon & Rees LLP 101 W. Broadway, Suite 2000 San Diego, CA 92101 Telephone: (619) 696-6700 Facsimile: (619) 696-7124 Chesscom Technologies, Inc. Attn: Thomas Jolitz 2610 Tampa East Boulevard Tampa, FL 33619 Allied Low Voltage Attn: Daniel Ecko 1561 Dorwood Avenue La Habra, CA 90631 Attorneys for the City of Chula Vista M. Kevin O'Neill Construction Co. Inc. Attn: Kevin O'Neill 621 Del Mar Avenue Chula Vista, CA 91910 ® BY ELECTRONIC MAIL: 1 served said document(s) by e-mail to the address indicated above. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. ❑ BY US MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at San Diego, California in the ordinary course of business. 1 am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. ❑ BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the office of the addressee(s). 0 BY OVERNIGHT DELIVERY: I served such envelope or package to be delivered on the same day to an authorized courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier. 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 5, 2012, at San Diego, California. W02- W EST:01BM RW03998661.1 Case No. 37-2011-00091420-CU-BC-CTL 64 Page 1 of 1 rn Anderson From: Barrett Marum Sent: Thursday, April 05, 2012 2;52 PM To:'goldsteinmht©gtiaw.com;'starra@gtlaw.com', 'grotzingerj@gtlaw_com'; 'scottp@gtlaw.com 'tom©chesscomtech,net; 'ailiedplus2 a©roadrunner.com ; 'mkocci@attnet; William Rathbone; 'Karen Rogan'; 'Cristopher G. Sabot, Esq.' Subject: NexHonzion — Revised Order re Sale Motion Attachments: [Comparison Result],[#404852787][v2;[NexHonzon[ Proposed Order on Motion to Confirm Sale of Receivership Assets (compared with [#404852787][v3 f NexHorizonj Proposed,doc, (Modified Document] (NexHonzon) Proposed Order on Motion to Confirm Sale of Receivership Assets.doc AI. Attached please find a revised version of the proposed order we previously submitted regarding the sale motion that is set for hearing tomorrow as well as a redline showing changes. Both documents are being provided: to Judge Pressman this afternoon. The changes were made to 1) update the order following the conclusion of the sale process and 2) modify the closing date so as to ensure the purchaser has sufficient time to obtain the requisite licenses, permits, etc before the transaction closes. (I am not re -sending the APA itself. as it has not changed ) Best regards. Barrett Marum :j "; 338'.;S1-t5 direct 6195154i491 direct fax E.61:rrui;rd'shem.;:mumu,!in.com' ro ppardMu[lin Min Rich'er & Hampton LLP st a ack y 19th r D: CD. '.., 92'rJ-. 3598 1; ;)r)mar; www. sheppardmuliin.coin 4/5/2012 65 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT. MEETING DATE: July 3, 2012 AGENDA ITEM NO. 18 EM TITLE: Resolution of the City Council of the City of National City approving and authorizing issuance of a Written Report pertaining to a Moratorium Ordinance prohibiting New Pawnbroker, Secondhand, and Precious Metal dealing and establishments in National City PREPARED BY: Claudia Gacitua Silva DEPARTMENT: IA t Attorney PHONE: Ext. 4222 APPROVED BY: ' A� EXPLANATION: riFf r At the City Council meeting of September 6, 2011, the Council enacted Ordinanc- ••. 2011- 2366, "An Interim Ordinance of the City Council of the City of National City Adopted Pursuant to Government Code Section 65858 as an Urgency Measure to Take Effect Immediately, Extending for 10 months and 15 days a Moratorium Prohibiting New Pawnbrokers, Secondhand and Precious Metal Dealer Establishments in National City", which will expire on July 21, 2012. Prior to the expiration or any extension of the moratorium, the Council must issue a written report describing the measures taken to alleviate the condition that led to the adoption of the moratorium ordinance. In order to meet this requirement, the attached report is submitted for Council approval and issuance. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: posed resolution. RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY APPROVING AND AUTHORIZING ISSUANCE OF A WRITTEN REPORT PERTAINING TO A MORATORIUM ORDINANCE PROHIBITING NEW PAWNBROKER, SECONDHAND, AND PRECIOUS METAL DEALING AND ESTABLISHMENTS IN NATIONAL CITY WHEREAS, at the City Council meeting of September 6, 2011, the Council enacted Ordinance No. 2011-2366, "An Interim Ordinance of the City Council of the City of National City Adopted Pursuant to Government Code Section 65858 as an Urgency Measure to Take Effect Immediately, Extending for 10 months and 15 days a Moratorium Prohibiting New Pawnbrokers, Secondhand and Precious Metal Dealer Establishments in National City"; and WHEREAS, the moratorium enacted pursuant to Ordinance No. 2011-2366 will expire on July 21, 2012, subject to extension by action of the City Council; and WHEREAS, Section 65858(d) of the Government Code provides that 10 days prior to the expiration of the interim ordinance or any extension, the legislative body shall issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance; and WHEREAS, a Report satisfying the requirements of Government Code Section 65858(d) is attached hereto as Exhibit "A" and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby finds and determines that the Report attached hereto as Exhibit "A" satisfies the requirements of Government Code Section 65858(d), and hereby approves and authorizes issuance of said Report. PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney REPORT (Government Code Section 65858(d)) Since the original pawnshop establishments were approved in the 1980's, the City has seen a 200% increase in such establishments. Of the nine pawn, gold buying and secondhand businesses licensed to do business in National City, seven (7) received their Conditional Use Permits (CUP) between 2008 and 2011. Various existing businesses have also expanded to include dealings in secondhand goods in recent years. Moreover, due to the increasing value of gold, the market has encountered a proliferation of gold buying establishments. Recently, unlicensed and unpermitted gold and other secondhand dealer establishments and vendors have erupted in record numbers. Businesses who do not have pawn, secondhand or gold buying as their primary business are engaging in gold buying as a part of or incidental to their primary business. The number and extent of these businesses engaging in gold buying as an incidental or accessory part of their business is not known because it is not the primary business which is identified on the business license. In addition, electronics businesses have started to engage in secondhand dealing in which they acquire used electronics from sellers. Some businesses pay cash, while others use a "store credit" model. In some instances, companies have used a kiosk model in which electronics arc deposited and the depositor is paid via check after the deposited electronic item is processed by the business. These types of secondhand businesses are more recent and are not fully contemplated by the most recent Land Use Code provisions. The National City Police Department has been concerned with the increase in crime related to the existence of such establishments, which includes the sale and purchase of stolen goods, and the added burden of being tasked with tracking the reporting requirements for such establishments pursuant to the regulations of the California Department of Justice, particularly in light of the decrease in law enforcement resources. Existing land use controls may not adequately address the potential adverse effects of newly proposed pawnbrokers, secondhand and precious metal establishments in the community. While the City has adopted an updated Land Use Code (February 2012) since the enactment of the moratorium in order to better address pawn shops, gold buying and secondhand dealing businesses, the current issues being seen by the Police Department are not adequately addressed by the most recent provisions and require further study. There is a potential threat to the public health, safety and welfare were the City to permit new establishments without adequate land use controls. At the regular City Council meeting of September 6, 2011, the City Council enacted, as an urgency ordinance to take effect immediately, Ordinance No. 2011-2366, imposing for a period of 10 months and 15 days a moratorium on the locating of, development, or approval of new pawnshops, secondhand dealers, and precious metal dealing and establishments in the City. The moratorium imposed by Ordinance No. 2011-2366 will expire on July 21, 2012 unless extended by action of the City Council. The Government Code provides that after a public 1 EXHIBIT "A" hearing, the 10 month and 15 day moratorium may be extended by one year. If the Council seeks to consider extending the moratorium, then a public hearing will need to be held. Such public hearing could be calendared for the next regularly scheduled Council Meeting. Should an extension be adopted, staff would study and consider the current environment and the effects of existing and new pawnbrokers, secondhand and precious metal establishments, such as gathering information as to the status of such establishments, their effect upon other communities, and possible recommendations for best practices regarding such establishments. Planning Commission Review It is anticipated that this topic will be placed on an upcoming Planning Commission agenda for the Commission to consider the need for further regulation in this area. The Commission's recommendations will then be presented to the City Council. 2 EXHIBIT "A" CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 19 EM TITLE: Resolution of the City of National City Authorizing the Approval of Weed Abatement Public Hearing Findings PREPARED BY: Robert Hernandez / Fire MarsTia/ PHONE: 336-4552 EXPLANATION: DEPARTMENT: Fi APPROVED BY: On June 19, 2012, a public hearing was held as required pursuant to Chapter 1.36.100 of the Municipal Code, wherein the City Council considered the objectives and protests of the owners of parcels by interested parties. This resolution will approve the Report and Account as submitted. The approved costs of the abatements will be liens upon the respective lots or premises. The proposed resolution incorporates all the parcels subject to weed abatement liens pursuant to NCMC Section 1.36.110. A copy of this resolution shall be served on the responsible person, pursuant to the procedures set forth in the NCMC Section 1.36.030, no later than fifteen days after the date of adoption. If cost of abatement is waived by Mayor and Council, the City of National City will be responsible for all cost associated with the abatement conducted by Fire Prevention Services. FINANCIAL STATEMENT: ACCOUNT NO. 001-12124-3561 ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Approve the Weed Abatement Public Hearing Findings and approve resolution BOARD / COMMISSION RECOMMENDATION: N/A ACHMENTS: esolution 2) Revised Fixed Charges Assessments RESOLUTION NO. 2012 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY CONFIRMING ASSESSMENT OF COSTS OF WEED ABATEMENT WHEREAS, the Director of Emergency Services filed with the City Clerk an assessment, attached hereto as Exhibit "A", for weed abatement work done under and pursuant to National City Municipal Code Chapter 1.36; and WHEREAS, as required by Ordinance No. 2081, the City Clerk has given notice of the filing of the assessment and of the time for a hearing by the City Council, and anaffidavit of posting such notice has been made and is on file in the office of the City Clerk; and WHEREAS, on June 19, 2012„ a hearing was held by this City Council at which the report and account, and all written appeals, protests, or objections, if any, were duly presented, read, and considered, and all persons desiring to be heard thereon were heard, and the City Council gave all persons present an opportunity to be heard in respect to any matter relating to said work, to any act or determination of the Director of Emergency Services, or to any matter relating to said work or the assessment or the proceedings, therefore; and WHEREAS, all such persons desiring to be heard have been heard by the City Council. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City does hereby find, resolve, determine, and order as follows: That said hearing has been duly held; that each and every step of the proceeding prior to and including the hearing has been duly and regularly taken; that the City Council is satisfied with the correctness of the assessment as stated in Exhibit "A", the proceedings and all matters relating thereto, and all protests, objections, or appeals be and the same are hereby overruled and denied, and the City Council does hereby confirm said proceedings and said assessment; that the City Council approve the report and account as submitted; and that the City Clerk is directed to file with the County Auditor of the County of San Diego, a certified copy of this Resolution. PASSED and ADOPTED this 3rd day of July, 2012. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney City of National City Weed Abatement Program 2012/2013 Fixed Charge Special Assessments �.0 gyp. t . ..,�. nx �,ssm -�.�..V x. gym, r r S. r` .f ''vi'4. ': ,. .� � rem} €��, ��;,- r �. ' �w<, �, 3 s 3aa' "'`" -., #.. K ♦� .*i "�`YR�y%. . 1 � �< «,� ' �„`a,�wn�� z e � rot''°.,��,� r 4{... }I "�"1, - � . �i1Adressta�.;= s5 s x' N5 '_ � ��J �..�w St - '� ^ o' 552 330 04 00 $1,517.20 103 N Kenton Ave National City 91950 L;K Patton Enterprises L L C 9440 Chestnut St Spring Valley CA 91977 554 180 05 00 $1,590.44 3109 E 8th St National City 91950 Carolino Construction Corp 1366 Corona Vis Bonita CA 91902 554 262 04 00 $2,278.68 2638 E 2nd St National City 91950 Maafala Talai 2638 E 2nd St National City CA 91950 556 415 06 00 $878.26 1023 E 7th St National City 91950 Jimenez Jaime:Patricia 4139 Miguel Trail PI Chula Vista CA 91914 557 140 25 00 $2,688.66 8th St National City Zayat Kamel;Elkadi % Casa Engineering 9225 Dowdy Dr #219 San Diego CA 92126 557 180 37 DO $965.40 805 N Ave National City 91950 Li Zhiwei "498 13th St #193 Imperial Beach CA 91932 Total Parcels: 6 Total Assess: $9,918.64 „V. IISIHX3 City o- ional City Weed Abatement Program 2012/2013 Fixed Charge Special Assessments P""ti W..A I'kWtWY � hryd£ . '#` � try litren . ';� r5.. k«t h :wka+: 3�. r A � .rr .a w i '"it%§t ._..t.. ��j! hl cyx^'-^ .w ...,9. >N' 3 f(3f #� �. ��'!� <al ' �• �:M *». ttai�� 552 330 04 0C $1,517.20 103 N Kenton Ave National City 91950 L;K Patton Enterprises L L C 9440 Chestnut St Spring Valley CA 91977 554 180 05 00 $1,590.44 3109 E 8th St National City 91950 Carolino Construction Corp 1366 Corona Vis Bonita CA 91902 554 262 04 OC $2,278.68 2638 E 2nd St National City 91950 Maafala Talai 2638 E 2nd St National City CA 91950 556 415 06 00 $878.26 1023 E 7th St National City 91950 Jimenez Jaime;Patricia 489 Miguel Trail PI Chula Vista CA 91914 557 140 25 0C $2,688.66 8th St National City Zayat Kamel;Elkadi % Casa Engineeri 9225 Dowdy Dr #21E San Diego CA 92126 557 180 37 00 $965.40 805 N Ave National City 91950 Li Zhiwei 1498 13th St #193 Imperial Beach CA 91932 Total Parcels: 6 Total Assess: $9,918.64 CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 20 :M TITLE: Notice of Decision — Planning Commission approval of a Conditional Use Permit for a dialysis school at 124 East 30th Street, Suite E. (Applicant Teresita Mabini) (Case File 2012-10 CUP) t<LPARED BY: Michael Fellows PHONE: 336-4315 .APLANATION: APPROVED BY: DEPARTMENT: Planning. Lam, The project site is a 14,200 square -foot lot developed with a 7,300 square -foot office building. The property has 23 parking spaces on site and is located in the CH -CZ (Heavy Commercial — Coastal Overlay) zone. The applicant proposes to provide dialysis technician career training for approximately 10 students, from 4:30 p.m. to 8:30 p.m. Tuesday and Thursday and from 8:00 a.m. to 4:30 p.m. on Saturday in a 730 square -foot suite office suite. The classroom portion of the school is limited to 350 square feet. The school will be office instruction only: no patients will be at the site. The Planning Commission conducted a public hearing on June 18, 2012. Commissioners asked questions regarding conditions of approval and the use of the office space during off hours. The Commission voted to approve the CUP based on required findings and subject to Conditions of Approval I i; NANCIAL STATEMENT: t1NT NO. APPROVED: APPROVED: NVIRONMENTAL REVIEW: Categorically Exempt pursuant to Class 1 Section 15301 (Existing Facilities) ,DINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS i T,FF RECOMMENDATION: Staff concurs with the decision of the Planning Commission and recommends that the Notice of Decision be filed. OI RD f COMMISSION RECOMMENDATION: The Planning Commission approved the Conditional Use Permit. Ayes: Alvarado, Baca, Farias, Flores, Pruitt, Reynolds Abstain: None Absent: DeLaPaz HMENTS: Location Map Planning Commission Staff Report 3. Resolution No. 13-2012 4. Reduced Plans a a a i a 1 a CS E-=30th st Subject Parcel Coastal Zone — — — Zone Boundary r O O • N CO r 0 N CM- O ti 1 1 1 0 75 150 • RS-2 LC) M In N MXC-1 3008 3020 I Feet 300 a) a' 0 APN: 562-251-19 Planning Commission Location Map 2012-10 CUP 0.6.04.12 Item no. 2 June 18, 2012 CITY OF NATIONAL CITY - DEVELOPMENT SERVICES DEPARTMENT 1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950 PLANNING COMMISSION STAFF REPORT Title: PUBLIC HEARING — CONDITIONAL USE PERMIT FOR A DIALYSIS SCHOOL AT 124 E. 30TH STREET SUITE E. Case File No.: 2012-10 CUP Location: South side of East 30th Street between National City Boulevard and A Avenue. Assessor's Parcel No: 562-251-19 Staff report by: Michael Fellows — Planning Technician Applicant: Teresita Mabini Property owner: VAPS CA LLC Combined General Plan/ Zoning designation: Heavy Commercial — Coastal Zone (CH -CZ) Parcel size: 0.33 acres Adjacent land use/zoning: North: Automotive repair across E. 30th Street / CS East: Offices / CH -CZ South: Offices / CH -CZ West: Automotive Storage / CA-PD-CZ Environmental review: Categorically Exempt pursuant to Class 1 Section 15301 (Existing Facilities) BACKGROUND Site Characteristics The project site is an approximately 14,200 square -foot property developed with a 7,300 square -foot office building located in the CH -CZ (Heavy Commercial — Coastal Overlay) zone. The property has 23 parking spaces on site. Existing uses in the building include an insurance office, tax office, and a realty office. The recent Land Use Code Update designated this property as MXC-1 CZ. This zoning designation is not active for this property since it is located in the Coastal Zone and the City's Local Coastal Plan has not been modified or approved by the Coastal Commission. Therefore, the City's previous zoning designation (CH -CZ) and Land Use Code are applicable to the property. Proposed Use The applicant proposes to provide dialysis technician career training for approximately 10 students, within a 730 square -foot office suite, located in the existing building. The training program would be classroom and office only. There would be no patients or dialysis machines at the site. Classes would be held on Tuesdays and Thursdays from 4:30 p.m. to 8:30 p.m. and Saturdays from 8:00 a.m. to 4:30 p.m. Recommended Conditions of Approval will not limit the school to these hours of operation to provide the school flexibility in its operation and since impacts from extended hours should be minimal. The program is required to be certified by the California Department of Public Health. Dialysis is a process for removing waste and excess water from the blood and is used primarily to provide an artificial replacement for lost kidney function in people with renal failure. Analysis A school is permitted in the CH zone with the issuance of a Conditional Use Permit (CUP). Concerns with educational uses usually focus around traffic and high demand for parking that is concentrated at particular times for extended periods of time. Parkinq/Circulation The subject property has 23 parking spaces. Current Code standards would require 35 parking spaces for 7,200 square feet of office space. Therefore, the site has 12 less parking spaces than required by the Land Use Code. The lack of parking limits allowable uses in the structure to uses that require the same or Tess parking than office uses. The Land Use Code does not specify the number of parking spaces required for schools. In this case, the parking needs for the small school are similar enough to a typical office use to be allowed site, as the classroom area is only 350 square feet, the school proposes to have 10 students per class, and operate 3 days a week for 16 hours total. Site inspections were conducted on Tuesday May 15th at 11:00 a.m. and Wednesday June, 13th, 2012 at 4:00 p.m. and found open parking available at the site. When applicable, the recently adopted Land Use Code will require 1 space per 40 square feet of classroom area and 1 space per 300 square feet of office space. In this case, the new code would not allow the school at the site due to a lack of parking unless the applicant could obtain a shared parking agreement with another property or gain Planning Commission approval for an opportunity for reduced parking found in LUC chapter 18.45.080. According to SANDAG data, a 350 square -foot school would generate approximately 12 average daily trips (ADT), and an office would generate 7.6 ADT. Access to and from the area is provided by East 30th Street and National City Boulevard, that are both arterial streets. Therefore, no traffic issues are anticipated; the existing road network is more than capable of handling the additional traffic generated by the school. Department Comments The Building Division, Engineering Division, and Fire Department had no comments on the proposed school since the proposal is only for 10 students and no construction is proposed as part of the application. Standard Conditions of Approval are also included, as well as a condition requiring proof of all local, state, and/or federal permits necessary for operation of the Dialysis School be provided prior to operation. Summary The proposed educational use is consistent with the Land Use Code with the approval of a Conditional Use Permit. Conditions of Approval will ensure that the business operates in harmony with existing uses in the area. Furthermore, the potential impacts are minimal since the site is within an existing commercial area and adequate parking is available on site. RECOMMENDATION - Approve 2012-10 CUP subject to the conditions listed below, based on attached findings. ATTACHMENTS 1. Recommended Findings for Approval 2. Recommended Conditions of Approval 3. Location Map 4. Public Hearing Notice (Sent to 27 property owners) 5. Site Photos 6. Notice of Exemption 7. Exhibit A, Case File No. 2012-10 CUP, dated 5/16/ 12 Michael Fellows Brad Raulston Planning Technician Executive Director 2/ RECOMMENDED FINDINGS FOR APPROVAL 2012-10 CUP, 124 East 30th Street 1. That the site for the proposed use is adequate in size and shape, since the proposed use will be within an existing building and since no expansion of the building is proposed. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since the site has access to East 30th Street and National City Boulevard, both arterial streets, that can accommodate the additional 19.6 average daily trips (ADT). 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the use is contained wholly within an existing building and the use is consistent with an educational and/or office use -.which is permitted in the Heavy Commercial zone. 4. That the proposed use is deemed essential and desirable to the public convenience, since it will provide training to members of the community seeking to gain additional education and job training. 5. That the granting of this Conditional Use Permit is consistent with and implements the requirements of the Local Coastal Program, since the school is located in a categorically excluded area and conforms with provisions of the Land Use Code. RECOMMENDED CONDITIONS OF APPROVAL 2012-10 CUP, 124 East 30th Street General 1. This Conditional Use Permit authorizes a Certified Dialysis school at 124 East 30th Street. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform to Exhibit A, Case File No. 2012-10 CUP, dated 5/16/2012. 2. Before this Conditional Use Permit shall become effective, the applicant and the property owner both shall sign and have notarized an Acceptance Form, provided by the Planning Division, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to return the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit. The applicant shall also submit evidence to the satisfaction of the Planning Division that a Notice of Restriction on Real Property is recorded with the County Recorder. The applicant shall pay necessary recording fees to the County. The Notice of Restriction shall provide information that conditions imposed by approval of the Conditional Use Permit are binding on all present or future interest holders or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney and signed by the Development Services Director prior to recordation. 3. Within four (4) days of approval, pursuant to Fish and Game Code 711.4 and the California Code of Regulations, Title 14, Section 753.5, the applicant shall pay all necessary environmental filing fees for the San Diego County Clerk. Checks shall be made payable to the County Clerk and submitted to the National City Planning Department. 4. This permit shall become null and void if not exercised within one year after adoption of the resolution of approval unless extended according to procedures specified in Section 18.116.190 of the Municipal Code. Planning 5. The applicant must maintain all •local, state and/or federal permits necessary for operation of the Certified Nursing Assistant School. 6. Expansion of classroom square footage beyond 350 square feet shall require modification of this permit. 6 RESOLUTION NO. 13-2012 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NATIONAL CITY, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT FOR A DIALYSIS SCHOOL AT 124 EAST 30TH STREET SUITE E. CASE FILE NO.: 2012-10 CUP APN: 562-251-19 WHEREAS, the Planning Commission of the City of National City considered a Conditional Use Permit for a Dialysis Technician School at 124 E. 30th Street, Suite E at a duly advertised public hearing held on June 18, 2012, at which time oral and documentary evidence was presented; and, WHEREAS, at said public hearings the Planning Commission considered the staff report contained in Case File No. 2012-10 CUP maintained by the City and incorporated herein by reference along with evidence and testimony at said hearing; and, WHEREAS, this action is taken pursuant to all applicable procedures required by State law and City law; and, WHEREAS, the action recited herein is found to be essential for the preservation of public health, safety, and general welfare. NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of National City, California, that the testimony and evidence presented to the Planning Commission at the public hearing held on June 18, 2012, support the following findings: 1. That the site for the proposed use is adequate in size and shape, since the proposed use will be within an existing building and since no expansion of the building is proposed. 2. That the site has sufficient access to streets and highways that are adequate in width and pavement type to carry the volume and type of traffic generated by the proposed use, since the site has access to East 30th Street and National City Boulevard, both arterial streets, that can accommodate the additional 19.6 average daily trips (ADT). 3. That the proposed use will not have an adverse effect upon adjacent or abutting properties, since the use is contained wholly within an existing building and the use is consistent with an educational and/or office use which is permitted in the Heavy Commercial zone. 4. That the proposed use is deemed essential and desirable to the public convenience, since it will provide training to members of the community seeking to gain additional education and job training. 5. That the granting of this Conditional Use Permit is consistent with and implements the requirements of the Local Coastal Program, since the school is located in a categorically excluded area and conforms with provisions of the Land Use Code. BE IT FURTHER RESOLVED that the application for Conditional Use Permit is approved subject to the following conditions: General 1. This Conditional Use Permit authorizes a Certified Dialysis school at 124 East 30th Street. Except as required by conditions of approval, all plans submitted for permits associated with the project shall conform to Exhibit A, Case File No. 2012-10 CUP, dated 5/16/2012. 2. Before this Conditional Use Permit shall become effective, the applicant and the property owner both shall sign and have notarized an Acceptance Form, provided by the Planning Division, acknowledging and accepting all conditions imposed upon the approval of this permit. Failure to return the signed and notarized Acceptance Form within 30 days of its receipt shall automatically terminate the Conditional Use Permit. The applicant shall also submit evidence to the satisfaction of the Planning Division that a Notice of Restriction on Real Property is recorded with the County Recorder. The applicant shall pay necessary recording fees to the County. The Notice of Restriction shall provide information that conditions imposed by approval of the Conditional Use Permit are binding on all present or future interest holders or estate holders of the property. The Notice of Restriction shall be approved as to form by the City Attorney and signed by the Development Services Director prior to recordation. 3. Within four (4) days of approval, pursuant to Fish and Game Code 711.4 and the California Code of Regulations, Title 14, Section 753.5, the applicant shall pay all necessary environmental filing fees for the San Diego County Clerk. Checks shall be made payable to the County Clerk and submitted to the National City Planning Department. 4. This permit shall become null and void if not exercised within one year after adoption of the resolution of approval unless extended according to procedures specified in Section 18.116.190 of the Municipal Code. e - - Planning 5. The applicant must maintain all local, state and/or federal permits necessary for operation of the Certified Nursing Assistant School. 6. Expansion of classroom square footage beyond 350 square feet shall require modification of this permit. BE IT FURTHER RESOLVED that copies of this Resolution be transmitted forthwith to the applicant and to the City Council. BE IT FINALLY RESOLVED that this Resolution shall become effective and final on the day following the City Council meeting where the Planning Commission resolution is set for review, unless an appeal in writing is filed with the City Clerk prior to 5:00 p.m. on the day of that City Council meeting. The City Council may, at that meeting, appeal the decision of the Planning Commission and set the matter for public hearing. CERTIFICATION: This certifies that the Resolution was adopted by the Planning Commission at their meeting of June 18, 2012, by the following vote: AYES: Farias, Alvarado, Reynolds, Pruitt, Baca, Flores NAYS: ABSENT: DeLaPaz ABSTAIN: CHAIRMAN EXHIBIT A CASE FILE NO, 2012-10 CUP DATE: 5/16/2012 Office / Reception City Healthcare Institute, Inc. dba Dialysis School of San Diego 124 E. 30th Street, Suite E National City, CA 91950 NOT TO SCALE a 4) Revisions 3i 29/2012 Sheet 1 rD m Photo Survey City Healthcare Institute, Inc. dba Dialysis School of San Diego 124 E. 30th Street, Ste. E. National City, CA 91950 Peter Klein & Assoo. tes 4336 Crestview Drive la Mesa, CA 91941 Drawn by: GRN copyright 2012 all rights reserved CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. _ _ EM TITLE: Report on amending the criteria for the City of National City Employee Performance Recognition program effective January 1, 2013 PREPARED BY: Stacey Stevenson PHONE: 336-4308 EXPLANATION: Refer to attached staff report DEPARTMENT: H : ' eso ces APPROVED B FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Accept the staff report BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: ff report City Council Staff Report July 3, 2012 ITEM Staff Report: Amending the criteria for the City of National City Employee Performance Recognition program. BACKGROUND The City's current employee performance recognition program was adopted in 2003. As outlined, the program: • Recognizes one employee each month (February through December) • Specifies the department(s) eligible for employee recognition by month • Limits eligibility to permanent, non -probationary employees Under the conditions of the current program model, part-time, management and executive employees are not eligible for consideration. The purpose of this report is to present modifications to the program model based upon current staffing and the current organizational model. DISCUSSION With one exception, the City of National City has a relatively low turn over rate. As such, the work force (defined as employees eligible for this program) has remained fairly consistent over the last ten years. The exception to the history of low turn over is the 2010 Employee Voluntary Separation Program resulting in the separation of 24 employees in a span of two weeks. As employees have left the organization, either through normal attrition or mechanisms such as the voluntary separation program, the majority of their positions have been left vacant in response to fiscal constraints. As a result, the workforce is both smaller and relatively stagnant, resulting in a reduced pool of eligible employees, many of whom have received the recognition, particularly in the smaller departments. As a direct result of reduced staffing, managers are absorbing some of the duties of line staff. In addition to the above, through a series of organizational realignments, the organizational structure has shifted significantly. These realignments have further lead to reduced staffing in Page 2 Staff Report — Amending the criteria for the City of National City Employee Performance Recognition program. July 3, 2012 some departments/divisions. As such, the current schedule or groupings of departments/divisions for purposes of this recognition program are unbalanced. Current EmDlovee Recognition Program Schedu e Month Departments (employee count) Month Departments (employee count) January Dark July Police Safety (81) February Library (5) August Mayor & Council/Clerk/ City Manager/City Attorney (8) March Public Works (36), Engineering (6) September Fire Safety (33) April Police Non -Safety (26) October Planning (3), Building & Safety (1) May Finance (9) November Fire Non -Safety (3), HR (3) June Community Development (22) December Community Services (6) RECOMMENDATION Based on the above, it is the intent of staff to amend the program as follows: include managers as eligible employees; and amend the program from monthly to quarterly. By adding managers, the program will be broadened to include eighteen (18) additional current employees. The inclusion of managers is in recognition of their increased responsibility for performing daily operational tasks in response to the decrease in workforce. Migrating to a quarterly format will address the overall reduction in workforce while still providing a critical opportunity for employee recognition. The program will include two safety employee recognition quarters and two general employee recognition quarters, drawing from the City-wide pool. The quarterly recognition will be given in arrears to an employee that has performed in an exemplary manner for the previous three month period. As such, employees will be recognized as follows: uarterly EmDlovee Recognition Program Schedule Month Eligible Employees March General Employees (City-wide) June Police Safety September General Employees (City-wide) December Fire Safety The amended program will be effective in January, 2013, following the completion of the current recognition cycle. Alternative As an alternative, should the City Council recommend that staff continue with the monthly recognition program, consideration could be given to amending the current program to include managers; and to reconfigure the departmental groupings. The purpose of the reconfiguration Page 3 Staff Report — Amending the criteria for the City of National City Employee Performance Recognition program. July 3, 2012 would be to both create more balance and to more closely reflect the current organizational structure. The alternative modification would move the program from eleven months of recognition to ten, with no recognition given in January or December. Amended Monthly Employee Recognition Program Schedule Month Departments (employee count) Month Departments (employee count) January Dark July Police Safety (82) February Library (5), Community Services (8) August Mayor & Council/Clerk/ City Manager/City Attorney (8) March Public Works (38) September Fire Safety (33) April Police Non -Safety (26) October Planning (4), Building & Safety (2), Fire Non -Safety (5) May Finance (12) November Engineering (7), HR (3), MIS (3) June Housing & Grants (14), Neighborhood Services (10) December Dark FISCAL IMPACT There is no fiscal impact associated with this action. CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 22 :M TITLE: Report on Pawn Brokers, Second-hand dealers, and Gold Buying businesses and the impending expiration of the moratorium PREPARED BY: PHONE: EXPLANATION: Please see attached report. Claudia Gacitua Silva Ext. 4222 DEPARTMENT: APPROVED BY: FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: File report. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: ort Staff Report At the June 19, 2012 City Council meeting, the Council requested this matter be brought back for further discussion. The prior agenda item is attached for your reference. In addition, the following is provided for your information. Generally, the City, to protect the public safety, health, and welfare may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in direct conflict with a contemplated general plan, specific plan, or zoning proposal that the legislative body, planning commission or the planning department is considering studying or intends to study within a reasonable time. The urgency measure requires a four -fifths vote. Government Code section 65858 allows for the current 10 months and 15 day extension to be extended one additional time for a one year period. The Council would need to hold a public hearing that has been noticed pursuant to Government Code section 65090. In addition, the Council would need to make the following findings: 1. There is a current and immediate threat to the public health, safety, or welfare; and 2. That the approval of additional subdivisions, use permits, variances, building permits, or any other applicable entitlement for use which is required in order to comply with a zoning ordinance would result in that threat to public health, safety, or welfare. As explained in the related item, regarding the Written Report pertaining to a Moratorium Ordinance, there is need for further study and additional revision to the Land Use Code to address these uses, especially those uses that are not the primary business or are an accessory to a wholly different type of business. CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: June 19, 2012 AGENDA ITEM NO. 27 =M TITLE: Report on Pawn Brokers, Second-hand dealers, and Gold Buying businesses and the impending expiration of the moratorium PREPARED BY: PHONE: EXPLANATION: Claudia Gacitua Silva Ext. 4222 Please see attached report. DEPARTMENT: APPROVED BY: FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: port Staff Report On September 6, 2011, the City adopted a moratorium prohibiting new pawnbroker, secondhand and precious metal dealing establishments. That moratorium is set to expire July 21, 2012. Background As set forth in prior reports to Council, there has been a 200% increase in pawn shops in the City since the 1980's. At the time of the prior reports to Council, there were nine (9) businesses of this type licensed to operate within the City. Of the nine pawn, gold buying and secondhand businesses licensed to do business in National City, seven (7) received their Conditional Use Permits (CUP) between 2008 and 2011. (See Exhibit A, staff report from May 3, 2011 meeting). Since that time, the City has adopted an updated Land Use Code. National City Municipal Code section 18.30.320 addresses pawn shops, gold buying and secondhand dealing businesses. The provision adopted February 7, 2012 requires a CUP, and imposes distance requirements. Specifically, that section states: 18.30.320 - Pawn shops and businesses engaged in secondhand dealing andlor the purchase and selling of gold and other precious metals. A. Restrictions. 1. No pawn shops and businesses engaged in secondhand dealing and/or the purchase and selling of gold and other precious metals shall be located within 2,000 feet of another such business. 2. Pawn shops and businesses engaged in secondhand dealing and/or the purchase and selling of gold and other precious metals shall be no closer than two hundred fifty feet from residential zones. 3. No pawn shop or businesses engaged in secondhand dealing and/or the purchase and selling of gold and other precious metals shall be located east of Interstate 805. 4. A conditional use permit is required. 5. A pawn shop or businesses engaged in secondhand dealing and/or the purchase and selling of gold and other precious metals which provides payday lending is not exempt from the regulations of payday lenders. (Ord. No. 2012-2372, Exh. B-1, 2-7-2012) Current The City currently has six (6) pawn shops licensed to do business in the City. 1 The current Land Use Code provisions do require CUP's in order to operate these types of businesses, thus does assist in addressing PD's concern. As currently written, the Code states that these types of businesses cannot operate without a CUP, thus one - day shows and the like are not allowed in the City. What is not known is the number of businesses engaging in secondhand dealing or gold buying as an accessory use to their primary business. Options The City Council can allow the moratorium to expire and new businesses would be subject to the CUP process. The CUP process would entail a public hearing at the Planning Commission and would also be before the City Council as a Notice of Decision (and hearing if the Council so chose). fhe City Council can ask for further Code revisions to the current provisions of Section 18.30.320. Such revisions would be brought back at a subsequent Council meeting. The City Council, to protect the public health, safety and welfare, can extend the moratorium for another year if any of these may be in conflict with contemplated zoning proposals being considered, studied, or intended to be studied by the Council, Planning Commission, or Planning Department staff, and after a noticed and a public hearing. Conclusion Staff brings forward this report to update Council on the impending expiration and seeks direction on whether the Council desires further land use regulation on all or some of these uses. 3 STAFF REPORT The City has recently adopted a new General Plan, a component of which allows for land usage that includes pawnbrokers, secondhand and precious metal dealers and establishments within the City. Since the original pawnshop establishments were approved in the 1980's, the City has seen a 200% increase in such establishments. Various existing businesses have also expanded to include dealings in secondhand goods in recent years. Moreover, due to the increasing value of gold, the market has encountered a proliferation of gold buying establishments. Recently, unlicensed and unpermitted gold and other secondhand dealer establishments and vendors have erupted in record numbers. The National City Police Department has been concerned with the increase in crime related to the existence of such establishments, which includes the sale and purchase of stolen goods, and the added burden of being tasked with tracking the reporting requirements for such establishments pursuant to the regulations of the California Department of Justice, particularly in light of the decrease in law enforcement resources. Existing land use controls may not adequately address the potential adverse effects of newly proposed pawnbrokers, secondhand and precious metal establishments in the community. There is a potential threat to the public health, safety and welfare were the City to permit new establishments without adequate land use controls. At the regular City Council meeting of August 2, 2011, the City Council enacted, as an urgency ordinance to take effect immediately, Ordinance No. 2011- 2364, imposing for a period of 45 days a moratorium on the locating of, development, or approval of new pavinshops, secondhand dealers, and precious metal dealing and establishments in the City. The moratorium imposed by Ordinance No. 2011- 2364 will expire on September 16, 2011 unless extended by action of the City Council. The Government Code provides that after a public hearing, the 45 day moratorium may be extended by 10 months and 15 days. This public hearing will satisfy the requirements of the Government Code. During this 10 months and 15 - days, staff will study and consider the current environment and the effects of existing and new pawnbrokers, secondhand and precious metal establishments, such as gathering information as to the status of such establishments and their effect upon other communities. The Government Code requires that prior to expiration of the interim ordinance, the City Council shall issue a written report describing the measures taken to alleviate the conditions which ledto the adoption of the ordinance. An item pertaining to a report that satisfies this requirement preceded this item on this agenda. The urgency ordinance to extend the moratorium by 10 months and 15 days is a companion item on this agenda. CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: May 3, 2011 AGENDA ITEM N0.21 :M TITLE: Report on pawnshops and businesses engaged in secondhand dealing and/or the purchase and selling of gold and other precious metals. (Continued from Council Meeting of April 5, 2011) PREPARED BY: Leslie Deese, Asst. City Manager DEPARTMENT: City Manager PHONE: 619-336-4240+{- APPROVED BY: EXPLANATION: See Attached FINANCIAL STATEMENT: N/A ACCOUNT NO. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Given the increasing number of gold buying businesses coming into the City, and the current lack of enforcement and zoning regulations, staff recommends the City Council direct that language be included in the draft Land Use Code to include gold buying and secondhand businesses. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: iff Report .....achment #1 (Council Agenda Statement from April 5, 2011) Attachment #2 (Memo from Legal Counsel) 2009-16- CUP Cash for Gold (Gold Buying) 3030 Plaza Bonita Road 112075 Approved by Planning Commission on 9121109. City Council filed on 10/6/09 2009-17 CUP 2010-16- CUP Quality 4 Less (Secondhand Store) NO LONGER IN BUSINESS (Active business license but not renewed yet this year (due date 02/28/11) Gold Buying at Uncle Buck's Check Cashing (Gold Buying) 3126 E. Plaza Blvd. 1539.Piaza Blvd. Approved by Planning Commission on 9/21/09_ City Council filed on 10/6/09 Approved by Planning Commission on 7/19/10. City Council filed on 813110 2010-20- CUP Business Not Yet Operating or Named (Pawnshop with Gold Buying) 560 Highland Ave Approved by Planning Commission on 7/19/10_ City Council filed on 8/3/10 2011-05 CUP Monte de Piedad (Pawnshop with Gold Buying) 2720 E. Plaza Blvd Approved by Planning Commission on 3/21/11. City Council filed on4/19/11 Since the original two pawnshop businesses were approved in the 1980's, National City has seen a 200% increase in pawn, gold buying and secondhand businesses. These uses are in part a function of the current economy and free market. The market will support a certain number of outlets depending on the population in need of the service. The changing economy has forced businesses to expand their range of services in order to be more profitable, which may account for the increasing number of businesses offering multiple services, including gold buying." In order for a business to: offer an additional service, that particular use must be allowed in the underlying zone, which may or may not require issuance of a Conditional Use Permit ("CUP")_ Other than those businesses that go through the proper licensing requirements, it is difficult to know the actual number of unlicensed gold buying businesses and dealers operating in the City without staff conducting a field survey, since many of the businesses and dealers operate out of cars or hold shows in hotel rooms. 3. Must hold purchased items for a minimum of 30 days; 4. Must review and validate identification of the person conducting the pawn transaction; 5. Must send NCPD a copy of the transaction slip, generally with an original thumbprint; 6. Must electronically add the information to a database which forwards the information to the State. NCPD utilizes the Leads Online database to electronically track the information entered by the pawnshops. On a weekly basis, Leads Online electronically notifies the NCPD. Investigations Division whether any of the registered pawnshops are behind in submitting electronic copies of the transactions: • Simon & Simon Jewelry & Loan • Express Financial Services • Monte de Piedad • Cash for Gold Uncle Bucks does not have the volume they deem necessary to cover the cost of the database so they only enter pawn transactions manually at this time; however, they intend to join the electronic database in the future. Quarterly, the NCPD Investigations Division submits the summary to the Records Division to ensure there is not a trend in late submittals. Since implementing the audit review system in the third quarter of 2010, there have been no instances of the hard copy submittals lagging behind the electronic submittals. The late electronic submittals exist when data entry Zags behind the actual physical submittal of the transaction slips to NCPD. Since•2010, the pawnshops listed above have been in total compliance. Annually, the State sends NCPD a list of currently licensed pawn dealers end those coming up for renewal to check for compliance. NCPD investigators visit those retailers who have not renewed their pawn license to ensure theyarenot operating as a. pawn dealer. While conducting these reviews over the last four years, NCPD has found only one secondhand dealer (no pawnshops) who was out of compliance and ensured they renewedboth their State and City licenses. In the course of investigating burglaries and fraud cases, NCPD investigators regularly visit pawn shops located in the City. Leads Online has substantially increased NCPD's visits to pawnshops due to easy access with a usable system. Investigators use the database on a weekly basis to follow-up on leads and enter suspected and stolen items into the Leads Online database which contains a national (and some businesses located in Mexico) detailed -comprehensive database of pawnshops.: Before Leads Online, NCPD relied on ARJIS, a countywide criminal justice enterprise network which has limited details and doesn't include the entire pawn transaction information. - m - i for strengthening the reporting of secondhand property sales, installation and maintenance of security cameras, retention of video tapes for at least 60 days, and photographing of sellers, and other such regulations. Additionally, at the recommendation of the Chief of Police, the Planning Commission may consider revocation of the CUP if the operator is found to be in violation of any State or local law. There are currently no regulatory or zoning requirements for pawnshops in National City. However, Chapter 3, Section 18.30.320 of the draft National City Land Use Code contains language that strengthens the City's ability to regulate pawnshops: 1. No pawnshops shall be located within 2,000 feet of another such business. 2. Pawnshops shall be no closer than 250 feet from residential zones_ 3. No pawnshop shall be located east of Interstate 805. 4. A conditional use permit is required. 5. A pawnshop which provides payday lending is not exempt from the regulations of payday lenders. Should the City Council approve the Land Use Code in its final form, approval conditions and distance requirements for pawnshops will be strengthened. However, it is important to note that the draft Land Use Code in its current form does not address or regulate secondhand or gold buying businesses. Without such. regulations, the secondhand dealers and gold buyers (with the exception of 'Cash for Gold" at Plaza Bonita who voluntarily meets pawn standards) will remain, for the most part, unregulated. Staff Recommendation Given the increasing number of gold buying businesses coming into the City, and the current lack of enforcement and zoning regulations, staff recommends the City Council direct that language be included in the draft Land Use Code to include gold buying and secondhand businesses. ORDINANCE NO. 2011 — 2366 AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ADOPTED PURSUANT TO GOVERNMENT CODE SECTION 65858 AS AN URGENCY MEASURE TO TAKE EFFECT IMMEDIATELY, EXTENDING FOR 10 MONTHS AND 15 DAYS A MORATORIUM PROHIBITING NEW PAWNBROKER, SECONDHAND AND PRECIOUS METAL DEALING AND ESTABLISHMENTS IN NATIONAL CITY WHEREAS, the City of National City desires to promote and encourage an atmosphere of healthy and diversified businesses in harmony with the interests of the public as determined by the land uses allowed within the City; and WHEREAS, the City has recently adopted a new General Plan, a component of which allows for land usage that includes pawnbrokers, secondhand and precious metal dealers and establishments within the City; and WHEREAS, since the original pawnshop establishments were approved in the 1980's,.the City has seen a •200% increase in such establishments. Various existing businesses have also expanded to include dealings in secondhand goods in recent years. Moreover, due to the increasing value of gold and other precious metals, the market has encountered a proliferation of precious metal buying establishments. Recently, unlicensed and unpermitted precious metal and other secondhand dealer establishments and vendors have erupted in record numbers; and WHEREAS, the National City Police Department has been concerned with the increase in crime related to the existence of such establishments, which includes the sale and purchase of stolen goods, and the added burden of being tasked with tracking the reporting requirements for such establishments pursuant to the regulations of the California Department of Justice, particularly in light of the decrease in law enforcement resources in the current economy; and WHEREAS, there is concern by the City Council that such establishments may have become an excessive burden and may be overly saturated in the City at this time; and WHEREAS, the City Council finds it necessary and appropriate to study and consider the current environment and the effects of existing and new pawnbrokers, secondhand and precious metal establishments, for example, to gather information concerning the status of such establishments and their effect upon other communities; and WHEREAS, the City Council finds that existing land use controls may not adequately address the potential adverse effects of newly proposed pawnbrokers, secondhand and precious metal establishments in the community; and WHEREAS, the City Council finds that without adequate land use controls there would be a current and immediate threat to the public health, safety and welfare were the City to permit new pawnbrokers, secondhand and precious metal dealing and establishments, and that the issuance of building permits, certificates of occupancy, and other entitlements for use for such establishments would result in a threat to the public health, safety and welfare; and - 15 - PASSED and ADOPTED this 6th day of September, 2011. ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia G. Silva City Attorney Ron Morrison, Mayor Ordinance No. 2011 — 2364 Pawnbroker Moratorium Ordnance - 17 - CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: July 3, 2012 AGENDA ITEM NO. 23 M TITLE: Request for City Council Member Appointment(s) to City of National City Nutrition Center Sustainability Ad Hoc Committee PREPARED BY: Leslie Deese, City Manager PHONE: 619-336-4240 EXPLANATION: See attached report DEPARTMENT: City Man APPROVED ISI) FINANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Appoint Councilmember(s) to City of National City Nutrition Center Sustainability Ad -Hoc Committee. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: f Report Request for City Council Member Appointment(s) to City of National City Nutrition Center Sustainability Ad -Hoc Committee The City of National City has seven (7) established Boards and Commissions whose members are appointed by the Mayor and City Council. The City also has a number of ad -hoc committees which are generally short-term in nature and for a specific purpose, and are generally comprised of city staff, community members, and City Councilmembers. At the May 22, 2012 City Council meeting, Councilmember Natividad requested the City Council consider forming a committee to identify potential revenue generating ideas, grant funding opportunities and other ways to help sustain the Nutrition Center's operation. The proposed ad -hoc committee would include one or two City Councilmembers, two members from the Parks, Recreation, and Senior Citizens Advisory Board (PRAB), and the City Attorney or her designee. It is recommended that Executive Director Brad Raulston and Nutrition Center Manager Ingrid Slettengren would staff the committee. Report Update: • June 5, 2012 — The City Council considered the item. Mayor Morrison and Councilmember Natividad were appointed as Council representatives. Also, at this same meeting, under Public Oral Communications, Ms. Yvonne Cordoba requested that she and Ms. Nora McMains be considered for appointment to the Nutrition Center ad hoc committee. • June 19, 2012 — Councilmember Rios requested that the item be brought back for a vote. • June 21, 2012 —Parks, Recreation & Senior Citizens Advisory Board (PRAB) discussed the item at its regular meeting. The PRAB Board appointed board members Ms. Yvonne Cordoba and Ms. Nora McMains to the Nutrition Center ad hoc committee. Background: The George H. Waters Nutrition Center, located at 1415 D Avenue, is an anchor in the National City community. The Nutrition Center offers one on -site (congregate) nutritionally balanced meal per day for senior adults 60 years of age and older. The Nutrition Center Program also provides a "Home Delivered Meals Program." 1 Approximately 100 seniors receive meals through the Home Delivery Program, seven days a week for which there is no charge, only a "suggested contribution." The goal of the Nutrition Center's programs is to promote better health, to reduce or prevent isolation through coordinated congregate, home delivered meals and supportive services. Staff and volunteers who deliver meals through the Home Delivery Program also offer an important opportunity to check on the welfare of the homebound and offer a positive social contact. The Nutrition Center's costs are offset by a contract with the County of San Diego. The City of National City also provides annual funding to the Nutrition Center in the amount of approximately $326,093 for Nutrition Center operations. In order to help offset some of the City's annual funding obligation at the January 24, 2012 City Council meeting, the Council considered contracting with a non- profit party to assume the County of San Diego's contract and assume operational duties of the Nutrition Center. At this meeting, the City Council directed staff to "explore and exhaust other avenues such as a 501 (c) 3 and possible grants and come back with other ideas". To help carry out the Council's direction, it is envisioned that the proposed ad - hoc committee would identify potential revenue generating ideas, grant funding opportunities and other ways to help sustain the Nutrition Center's operation. If formation of the committee is approved, we would anticipate a mid -year report from the ad -hoc committee to the City Council providing such options and recommendations. 2 ITEM #24 7/3/12 CLOSED SESSION REPORT (CITY ATTORNEY)