Agenda packet — El Cajon City Council, February 28, 2023 (part 2 of 2)

HOME-ARP
63 / 73
Q14
What do you think are the best options to provide shelter for our homeless residents? Please rank the following in order of priority with the highest need being number 1.

Smaller shelters throughout the City 1
Motels/hotels 3
Build new shelters 4
Make shelters out of existing buildings 2
Q15
HOME-ARP funding is a one-time opportunity to create programs/services that would have a significant impact on reducing/ending homelessness in this community. Is there anything else you would like to add that was not specifically asked about in this survey?
Move forward with empathy. Not all homelessness is due to addiction and mental illness. Older citizens are affected because of age, divorce, job loss and gender. I grew up upper middle class, educated and never have had an alcohol or drug addiction. After a duel income, 20 year marriage ended in 2018 I returned to El Cajon from Texas. I worked full time providing housing for my 82 yo mother & daughter. Then September 2020, I was a Covid layoff. Unemployment ran out in September 2021. Covid Rent Relief from February 2022-May 2022. Over 300 resumes submitted for qualifying roles. NO offers to date. At 57 years old, I’ve been told my age is now a factor. My self and small family are At Risk of Homelessness due to lack of income to pay rent. We have a Pending Unlawful Detainer.

I am that person who drive by homeless and said “but for the Grace of god.” Now I am one day away from being in “there”shoes. I can’t afford to stay and I can’t afford to leave. I want to stay because this is my home town. Thank you for reading this far.

HOME-ARP
64 / 73
Q1
Name of Person or Organization
Adam
Q2
Name and Title (if applicable) of Contact Person
Adam
Q3
Ways to Contact You (if you wish to receive updates)
Email:

Q4
What is your involvement with the following qualifying
homeless or near homeless population groups that your
organization primarily serves? (Check only one)
Interested Community Member
Q5
If a provider or affordable housing developer, what
qualifying homeless or near homeless population groups
does your organization primarily serve: (Check all that apply)
Respondent skipped this question
Q6
Is your geographic service area the East Region?
Yes
#18#18

INCOMPLETEINCOMPLETE
Collector:Collector:

Web Link 1 Web Link 1 (Web Link)(Web Link)
Started:Started: Monday, February 06, 2023 6:07:32 PMMonday, February 06, 2023 6:07:32 PM Last Modified:Last Modified: Monday, February 06, 2023 6:09:01 PMMonday, February 06, 2023 6:09:01 PM Time Spent:Time Spent: 00:01:2800:01:28
IP Address:IP Address: 66.10.102.23866.10.102.238

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HOME-ARP
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Q7
Do you provide services that primarily benefit City of El Cajon residents?
No
Q8
From the list below, what do you think is the most
important homeless population group the City of El Cajon should focus on? Please rank the following in order of
priority with the highest need being number 1.

Respondent skipped this question
Q9
What unmet housing and service needs do you see
among "Qualifying Populations" (people experiencing
homelessness, at risk of homelessness, fleeing domestic violence, or otherwise at high risk of housing instability) in the City of El Cajon?
Respondent skipped this question
Q10
What gaps do you see within the current shelter and
housing inventory, as well as the service delivery system in the City of El Cajon?
Respondent skipped this question
Q11
What do you think is most important to address the
housing needs of our homeless residents? Please rank the following in order of priority with the highest need being number 1.

Respondent skipped this question
Q12
What do you think are the best options to provide
affordable housing for our homeless residents? Please
rank the following in order of priority with the highest need being 1.

Respondent skipped this question

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HOME-ARP
66 / 73
Q13
What do you think is the most important to help homeless stay housed and not return to homelessness? Please rank the following in order of priority with the highest priority being number 1.

Respondent skipped this question
Q14
What do you think are the best options to provide shelter for our homeless residents? Please rank the following in order of priority with the highest need being number 1.

Respondent skipped this question
Q15
HOME-ARP funding is a one-time opportunity to create
programs/services that would have a significant impact on reducing/ending homelessness in this community. Is there anything else you would like to add that was not
specifically asked about in this survey?
Respondent skipped this question

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HOME-ARP
67 / 73
Q1
Name of Person or Organization
Respondent skipped this question
Q2
Name and Title (if applicable) of Contact Person
Respondent skipped this question
Q3
Ways to Contact You (if you wish to receive updates)
Respondent skipped this question
Q4
What is your involvement with the following qualifying
homeless or near homeless population groups that your
organization primarily serves? (Check only one)
Interested Community Member
Q5
If a provider or affordable housing developer, what
qualifying homeless or near homeless population groups
does your organization primarily serve: (Check all that apply)
Respondent skipped this question
Q6
Is your geographic service area the East Region?
Yes
Q7
Do you provide services that primarily benefit City of El Cajon residents?
Yes
#19#19

INCOMPLETEINCOMPLETE
Collector:Collector: Web Link 1 Web Link 1 (Web Link)(Web Link) Started:Started: Thursday, February 09, 2023 2:39:29 PMThursday, February 09, 2023 2:39:29 PM Last Modified:Last Modified: Thursday, February 09, 2023 2:40:10 PMThursday, February 09, 2023 2:40:10 PM Time Spent:Time Spent: 00:00:4000:00:40
IP Address:IP Address: 172.56.241.222172.56.241.222

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HOME-ARP
68 / 73
Q8
From the list below, what do you think is the most
important homeless population group the City of El Cajon should focus on? Please rank the following in order of
priority with the highest need being number 1.

Respondent skipped this question
Q13
What do you think is the most important to help homeless stay housed and not return to homelessness? Please rank the following in order of priority with the highest priority being number 1.

Respondent skipped this question

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HOME-ARP
69 / 73
Q14
What do you think are the best options to provide shelter for our homeless residents? Please rank the following in order of priority with the highest need being number 1.

HOME-ARP
70 / 73
Q1
Name of Person or Organization
Home Start, Inc.

Q2
Name and Title (if applicable) of Contact Person
CEO
Q3
Ways to Contact You (if you wish to receive updates)
Telephone No.:

Email:

Q4
What is your involvement with the following qualifying
homeless or near homeless population groups that your
organization primarily serves? (Check only one)
Permanent Supportive Housing or Rapid Re-Housing
Provider
Q5
If a provider or affordable housing developer, what
qualifying homeless or near homeless population groups
does your organization primarily serve: (Check all that apply)
Families
Q6
Is your geographic service area the East Region?
Yes
#20#20

INCOMPLETEINCOMPLETE
Collector:Collector:

Web Link 1 Web Link 1 (Web Link)(Web Link)
Started:Started: Friday, February 10, 2023 2:49:39 PMFriday, February 10, 2023 2:49:39 PM Last Modified:Last Modified: Friday, February 10, 2023 2:56:09 PMFriday, February 10, 2023 2:56:09 PM Time Spent:Time Spent: 00:06:2900:06:29
IP Address:IP Address: 68.15.19.19868.15.19.198

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HOME-ARP
71 / 73
Q7
Do you provide services that primarily benefit City of El Cajon residents?
Yes
Q8
From the list below, what do you think is the most important homeless population group the City of El Cajon should focus on? Please rank the following in order of priority with the highest need being number 1.

Victims fleeing domestic violence, sexual assault, stalking, or human trafficking
1 Veterans 6
Single adult households 3
Families 4
Unaccompanied youth (17 years of age or younger) 5
Q9
What unmet housing and service needs do you see among "Qualifying Populations" (people experiencing homelessness, at risk of homelessness, fleeing domestic violence, or otherwise at high risk of housing instability) in the City of El Cajon?
TAY(Transition-age youth); Young families
Q10
What gaps do you see within the current shelter and housing inventory, as well as the service delivery system in the City of El Cajon?
Housing for families and TAY

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HOME-ARP
72 / 73
Q11
What do you think is most important to address the housing needs of our homeless residents? Please rank the following in order of priority with the highest need being number 1.

Development of Affordable Housing (including Permanent
Supportive Housing)
1 Rental Assistance (up to 2 years of one-time assistance) 4 Supportive Services (e.g. case management, legal services, moving cost assistance, etc.)
2 Acquisition/Development of Non-Congregate Shelter Units (i.e. emergency shelter provided in individual rooms rather than sleeping areas in a group/shared area)
3 Q12
What do you think are the best options to provide affordable housing for our homeless residents? Please rank the following in order of priority with the highest need being 1.

Rental Housing with supportive services 3
Build new rental housing 2
Buy and fix up existing housing 1
Help landlords house homeless 4
Q13
What do you think is the most important to help homeless stay housed and not return to homelessness? Please rank the following in order of priority with the highest priority being number 1.

Housing counseling (i.e. landlord/tenant rights, housing search, budgeting, credit education/repair, etc.)
5 Homeless prevention services 1
Job training 3
Life skills training 4
Case Management 2

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HOME-ARP
73 / 73
Q14
What do you think are the best options to provide shelter for our homeless residents? Please rank the following in order of priority with the highest need being number 1.

Smaller shelters throughout the City 1
Motels/hotels 2
Build new shelters 4
Make shelters out of existing buildings 3
Q15
HOME-ARP funding is a one-time opportunity to create programs/services that would have a significant impact on reducing/ending homelessness in this community. Is there anything else you would like to add that was not specifically asked about in this survey?
Transition age youth, and young families are the right population to focus on....outcomes are higher.

City Council
Agenda Report
Agenda Item 10.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Dave Richards, Assistant to the City Manager
SUBJECT: Extension of Management Agreement with Live Nation RECOMMENDATION:

That the City Council authorizes the City Manager to execute the First Amendment to the Management Agreement between the City of El Cajon and Live Nation Worldwide, Inc.

BACKGROUND:

The Magnolia, previously named the East County Performing Arts Center or ECPAC, closed its doors in 2009 due to the Great Recession and the cost to operate the facility. Prior to closure, ECPAC had operated under several management models. From 2005 until its closure in 2009, Art Beat Management, a subsidiary of the Christian Youth Theater, managed the facility.

In February 2018, the City entered into a five-year Management Agreement (Exhibit A) with Live Nation to manage and operate The Magnolia, the City-owned 1,200-seat live entertainment venue, on behalf of the City. The agreement also specified that Live Nation would advise the City during the City’s renovation of the theater.

In March 2020, state and county Covid-19 regulations abruptly forced Live Nation to cancel all of The Magnolia’s shows and close its doors to the public. In September 2021, after nineteen consecutive months of sitting dark, The Magnolia reopened under the State’s safe reopening guidelines.

Even after The Magnolia reopened, events at the theater were slow to return to the level anticipated as part of the Management Agreement. Many of the shows were canceled or delayed due to the ongoing impacts of the pandemic. It was not until recently that Live Nation was able to schedule enough events to meet the facility's intended volume of use.

Given the extended closure and slow return to normal activity levels at The Magnolia, City staff requested a two-year extension of the Management Agreement. Live Nation has agreed to extend the agreement and worked with the City Attorney’s Office to develop the First Amendment to Management Agreement (Exhibit B). If approved by the City Council, the amendment will extend the end of the initial term to August 31, 2026. All other terms of the agreement, including the two options to extend for an additional five-years, would remain unchanged.

FISCAL IMPACT:

The Management Agreement with Live Nation provides for an annual Management Fee of $375,000. When combined with the net operating expenses and revenues and assuming the current operating performance, the overall cost to extend the agreement for two additional years is $100,000 annually, or $200,000 in total.

Prepared By: David Richards, Assistant to the City Manager Reviewed By: Vince DiMaggio, Assistant City Manager
Approved By: Graham Mitchell, City Manager
Attachments
Management Agreement with Live Nation
First Amendment to Management Agreement with Live Nation 1 MANAGEMENT AGREEMENT FOR THE

EAST COUNTY PERFORMING ARTS CENTER

THIS MANAGEMENT AGREEMENT FOR THE EAST COUNTY PERFORMING ARTS CENTER (“Agreement”) is made and entered into as of this ______ day of February 2018 (“Effective Date”) by and between the CITY OF EL CAJON, a charter city and municipal corporation (“Owner”), and LIVE NATION WORLDWIDE, INC., a Delaware corporation (“Manager”) with reference to the following terms, conditions and obligations.

ARTICLE I
SCOPE

1.1 Property. Owner is the fee title owner to that certain real property located at 210 E. Main Street, El Cajon, California, commonly known as East County Performing Arts Center (“Premises”), along with designated exterior areas as shown in Exhibit “C.” Owner, in consultation with Manager, will make substantial investment in the rehabilitation of this significant civic structure to contribute to the development of an entertainment hub for downtown El Cajon. At all times during th e Term (as defined below) of this Agreement, the Premises shall remain the absolute property of the Owner. No legal title or leasehold interest in the Premises shall be deemed or construed to have been created or vested in Manager, by anything contained in this Agreement.

1.2 Purpose. The purpose of this Agreement is to provide for the management and operation of the Premises as a first-class live entertainment and special event venue consistent with the goals of the Owner, on the terms and as set forth in this Agreement. The Premises is owned by the Owner to create a positive economic impact, to stimulate growth for the region, and to provide for the cultural and intellectual enrichment of the community, and Manager recognizes these goals in programming for the Premises.

Manager shall exercise its commercially reasonable efforts to optimize use of the Premises to meet these goals by (a) attracting national and international artists of the highest quality; (b) providing a diverse schedule; and (c) fostering the growth of community arts groups and in live music entertainment, but in all instances of (a) - (c), such programming will be consistent with the booking and events at other similar live entertainment venues owned or operated by Manager or its Affiliates (as defined below).

1.3 Engagement. Owner does hereby engage Manager as the sole and exclusive manager and operator of the Premises, to perform the services described in Exhibit “A” attached hereto and incorporated herein by reference (“Duties”) and the terms, conditions and obligations contained elsewhere in this Agreement. Manager does hereby accept such engagement and agrees to perform the Duties, terms, conditions and obligations in accordance with the terms in this Agreement.

1.4 Owner’s Contract Administrator. Owner hereby authorizes City Manager, or such person designated by the City Manager, as the Contract Administrator, as defined in Section 6.4 of this Agreement, to perform all tasks related to the execution of this Agreement, excluding those duties reserved for the Owner’s legislative body as identified in this Agreement.

ARTICLE II
TERM

2.1 Term. The term of this Agreement shall commence on the Effective Date provided, however, that the initial term of this Agreement (“Initial Term”) shall be deemed to begin on the date the Premises open for business to the public, currently targeted to be September 1, 2019 in accordance with the Project Schedule attached as Exhibit D (“Commencement Date”) and continue for five (5) years after the Commencement Date, subject to the termination provisions contained in this Agreement. Notwithstanding 2 anything contained herein to the contrary, between the Effective Date and the Commencement Date, the terms and conditions of this Agreement are in effect and the Owner will grant to Manager access to the Premises for various activities, including but not limited to, interviewing and training of Employees (defined below), advance ticket sales, etc.

Owner may terminate this Agreement during the Initial Term or any “Renewal Term” (as defined below) based upon Manager’s uncured, material default of the terms of this Agreement in accordance with the terms of Article 11 below.

2.2 Renewal Term. Following the Initial Term, so long as Manager is not in default under any material term, duty, condition or obligation of this Agreement following an opportunity to cure in accordance with the terms of this Agreement, this Agreement shall, at Manager’s option with prior written notice to Owner for each Renewal Term, renew for two (2) additional terms of five (5) years each (each a “Renewal Term”). The Initial Term and Renewal Term may be referred to in this Agreement collectively as the “Term.”

ARTICLE III
MANAGEMENT FEE; PREMISES ALTERATIONS; CONSULTING FEE; CORE SHELL WORK; FF&E ITEMS

3.1 Management Fee. As compensation and in consideration for the services rendered under this Agreement, Owner shall pay to Manager an annual fee of Three Hundred Seventy-Five Thousand and 00/100 ($375,000) during the Initial Term (“Management Fee”) and the Management Fee shall be renegotiated for each Renewal Term, which shall be approved by Owner’s legislative body. Said Management Fee cannot in any event be decreased. Payment of the Management Fee for Duties performed shall be in equal monthly payments of Thirty-one Thousand Two Hundred Fifty and 00/100 ($31,250.00) paid in arrears on the first day of each month following the Commencement Date provided, however, that the first payment and the last payment may be prorated should the Commencement Date be on a date other than the first day of a month.

3.2 Premises Alterations. The parties acknowledge and agree that the Premises require s certain alterations and improvements, including those needed to bring the Premises into compliance with applicable laws, to allow for Manager to operate in a first -class manner, in accordance with the standards set forth in this Agreement. The parties ag ree to mutually agree upon a suitable scope of work for both “Core Shell Work” and “ FF&E I tems” (defined below) and a related construction schedule, with the understanding that Owner alone is responsible for the cost (including all cost overruns) associated with any improvements or alterations to the Premises. The parties further acknowledge and agree that Owner shall be solely responsible for obtaining all bids and facilitating any and all RFP processes, as required by applicable laws, to allow for the pricing and execution of all such work to the Premises.

3.3 Consulting Fee . In addition to the Management Fee, Owner shall pay to Manager a consulting fee in the amount of $50,000 (“Consulting Fee”) beginning on the Effective Date through the date that is fifteen months following the Effective Date (“Expected Completion Date”). In consideration for this payment, Manager shall confer and consult with Owner on the design, construction and other aspects related to Owner’s renovation of the Premises, all to be completed at Owner’s sole cost and expense but in accordance with Manager’s recommendations and operating specifications (the “Venue Renovations”). The Venue Renovations (consisting of the “Core Shell Work” and “FF&E Items”) shall include but not be limited to those required to bring the Venue to a first-class condition of approximately a 1,300 (with standing room) sellable capacity , in accordance with mutually approved p lans and specifications and a budget, completion of which shall be considered a material inducement to Manager entering into this Agreement. If the Venue Renovations are completed prior to or upon the Expected 3 Completion Date, Manager shall nonetheless retain the full Consulting Fee. If, however, the Venue Renovations are not completed for any reason by the Expected Completion Date, Owner shall pay to Manager a continued consulting fee in the amount of $10,000 per month until such time as the Premises are suitable for occupancy as reasonably determined by Manager and Manager is reasonably able to undertake the booking and operating activities contemplated by this Agreement. Notwithstanding anything contained herein to the contrary, Owner shall allow Manager reasonable access to the Premises in advance of the Expected Completion Date to allow for employee training, orientation, pre -opening and other activities related to Manager’s duties under this Agreement. Notwithstanding anything contained herein to the contrary, if Owne r fails to complete the Venue Renovations in accordance with Manager’s specifications by a reasonable “outside” date as reasonably agreed upon by the parties, Manager shall have the right to terminate this Agreement with prior written notice by Manager and with no liability of any kind to Owner.

3.4 Core Shell Work . Notwithstanding anything contained herein to the contrary, Owner shall be solely responsible for the costs/expenses (including all overruns, contingencies, etc.) and contractual performance (with Owner appointing Manager as the Owner’s Representative) of all Venue Renovations. For the avoidance of doubt, Owner shall be solely responsible for the cost and contractual performance (including any liability for defective work) and timely completion of Core Shell Work, to include but not be limited to:
(a) General scope: HVAC, plumbing, fire protection, roofing and electrical; (b) Any structural/occupancy items to allow for issuance of a certificate of occupancy of approximately a 1,300 (with standing room) sellable capacity; and (c) All work needed to bring the Premises into compliance with applicable laws.

3.5 FF&E Items. With Manager’s input, Owner agrees to enter into contracts , appointing Manager as the Owner’s Representative, for the performance of certain FF&E I tems to consist of production, concessions, signage, low voltage interiors – painting, lighting, art, the cost, the scope, cost and schedule of which shall be approved in writing by Owner. Manager shall assist Owner in the sourcing and selection of suitable vendors and in developing the appropriate scope of work for the FF&E Items, subject to Owner’s approval . For the avoidance of doubt, Owner shall be solely responsible for the cost and contractual performance (including any liability for defective work) and timely completion of the FF& E Items.

3.6 Incentive Bonus Eligibility . Manager shall be eligible for an incentive bonus in each fiscal year for every dollar the anticipated operating income (“AOI” ) set forth in the Proforma, as revised annually, attached hereto as Exhibit “B” and incorporated herein by reference (“Proforma”) is increased up to and including breaking even. Manager and Owner agree to split the additional income 70/30, with Owner receiving 70 percent and Manager receiving 30 percent. For every dollar of AOI beyon d breaking even, Manager and Owner agree to split 50/50.

3.7 Annual. For purposes of this Article III, ” annual” shall correspond to the annual year, and for purposes of this Agreement, the fiscal year shall be the fiscal year from July 1 st to June 30th each year.

3.8 Payment. Manager shall be paid the Management Fee monthly by the fifth (5th) of each month. The first payment shall be due within thirty (30) days from the Commencement Date.

3.9 Name of Facility. Parties acknowledge that the name of the Premises shall be renamed to attain national name recognition which will complement Manager’s marketing of the Premises. A new name shall be agreed upon by both Parties by written mutual consent.

4 ARTICLE IV
EVENT

4.1 Event. An event (“Event”) shall mean a show for which tickets are made available for sale to the general public or any other type of ticketed or non-ticketed programming, rental, promoted event, special event, etc., and which involves a scheduled beginning and ending time typically all within the same day (or for evening Events, typically commencing in the evening and concluding before 2:00 a.m. of the succeeding day) and shall include, without limitation, all live musical events, live entertainment events, movies, community and cultural events public and private rentals, special events and public and private functions.

4.2 Number of Events. For the first full year after the Commencement Date, Manager shall use commercially reasonable efforts to ensure that not less than fifty (50) Events for the first fiscal year shall be held at the Premises. The increase in the number of events for the remainder of the term is set forth in Exhibit “A.” Notwithstanding anything contained in this Agreement to the contrary, all of Events will be pro-rated for any stub period/partial year. Manager acknowledges that the Premises are intended to be operated as a first-class live entertainment and special event venue. Owner shall review the schedule on a quarterly basis. Manager shall have discretion to make the Premises available for suitable Events. Manager shall seek Owner’s prior written approval for any Even ts that have demonstrable and ‘published’ (e.g., in national or local news outlets and media) evidence of public safety, health and welfare concerns (“Pre- Approved Events”). Manager’s designated representative ( Arich Berghammer – [email protected] or such other person identified by Manager) will send, via e -mail, any proposed “Pre -Approved” Event to the person identified by Owner for approval (“Event Approval Request”). Within 24 hours of Manager sending the Event Approval Request, Owner will respond via e- mail with either “Approved” or “Disapproved.” If “Disapproved,” the parties will confer in good faith to attempt to resolve any issues. Owner's failure to respond to any Event Approval Request within 24 hours will be deemed “Approved.” Once a particular Event is “Approved” by Owner, it will be considered “Approved” for future bookings. “Pre-Approved” Events that are “Disapproved” shall nonetheless count towards Manager’s number of Events contemplated by this Agreement.

Notwithstanding anything contained in this Agreement to the contrary, the Plaza as depicted in Exhibit “C” attached hereto and incorporated herein by this reference (the “Plaza”) shall be included within the Premises. Any programming booked by Manager in the Plaza, accordingly, shall count toward Manager’s Event obligations, as set forth in this Agreement. Further, notwithstanding anything contained herein to the contrary, all references to approval or consent shall be deemed to mean approval or consent not to be unreasonably conditioned, withheld or delayed.

4.3 Promoter. Manager, or entities with whom Manager has an ownership interest or relationship, may act as a promoter of Events which are scheduled at the Premises; provided, however, that Manager at all times shall impose upon such persons the same terms and obligations which would be imposed upon disinterested third party promoters and shall not deviate at all from the applicable fee schedule without the prior written approval of Owner. Manager, its Affiliates or entities with whom Manager has an ownership interest or relationship also may act as promoters of Events which are scheduled at theaters or venues, other than the Premises anywhere, including in San Diego County, it being understood that this Agreement imposes no radius or other restriction upon Manager, its Affiliates, etc.

4.4 Booking Policies. Manager’s booking and the Events booked for the Premises will be consistent with the booking and events at other similar live entertainment venues owned or operated by Manager or its Affiliates. “Affiliate” shall mean an entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a specified entity. For purposes of this definition, “control” means ownership of equity securities or other ownership interests 5 which represent more than fifty -one percent (51%) of the voting power in the controlled entity. Manager covenants and agrees to book Events each calendar year that are balanced so as to ensure a reasonable blend of diverse programming and cultural experiences. Manager shall have no obligation, however, to book any type of category of Event or specific Events that are unprofitable, as reasonably determined by Manager.

Notwithstanding anything to the contrary in this Agreement, Manager will deliver to Owner an Operating Manual for all Events including security, first aid and evacuation plans. If there are concerns based upon incidents arising at Events, Owner has the right to require Manager to provide a security and first aid plan for an Event, thirty (30) days prior to the scheduled Event, a nd subject to the approval of the City of El Cajon Police and Fire Departments from time to time.

4.5 Presentation Schedule. To the extent available, Manager will provide Owner with a preliminary outline of Events, which will be subject to change, at Manager’s sole discretion. Manager will have control over all programming and details such as artist or group approval, performance schedule and length and other artistic and promotional matters, including but not limited to artist and performance selection, exhibition them and schedules, presentational and production specifics and artist content , consistent with conditions of this Agreement.

4.6 Confidentiality. Whenever Manager provides Owner with information which is exempt from public disclosure under the California Public Records Act, Government Code section 6250 et seq., Owner shall cooperate with Manager in a good faith effort to maintain the confidentiality of such documents, to the extent allowed by law and if otherwise not compelled by law to disclose such documents.

4.7 Licensing Beyond Term. Owner and Manager acknowledge that the booking of Events into the Premises requires a long lead time and that these Events are often contracted up to twelve (12) months prior to the dates of performance. The attraction and servicing of these Events requires a substantial effort on the part of the Manager. Manager and Owner agree that Manager’s efforts to book Events beyond the end of Manager’s Initial or Renewal Term is in the best interest of the Owner and Manager should be compensated for efforts made from which the Owner, after the term of this Agreement, will benefit.

Manager shall use its best efforts to obtain fully executed Use Agreements to use the Premises on dates which fall beyond the date on which this Agreement terminates. Upon notification of non- renewal of this Agreement by either party, Manager will refer all post -term booking inquiries to the new management entity or to another representative designated by Owner. At the end of Manager ’s term, Manager shall submit to Owner copies of signed Use Agreements to rent the Premises for any bookings beyond the end of Manager’s term.

4.8 Deposit. To confirm the rental of Premises for a specific date and time, Manager shall collect a deposit of an amount appropriate for the length and type of Event being held.

4.9 Marketing. Manager shall use reasonable efforts, consistent with marketing practices in the industry, to disseminate information and bring the Premises to the attention of a broad base of potential users.

ARTICLE V

USE OF THE PREMISES

5.1 Use. Manager shall, in a manner similar to operations by Manager and its Affiliates at other locations nationally, use reasonable efforts to schedule Events and to maximize the use and profitability of the Premises, which schedule shall be based on a policy and rental rate structure that supports theater use by non-profit and for profit entities. Manager shall enter into written Use Agreements with third parties (collectively, “ Users" or individually a "User ”) for us e of the Premises for Events in accordance with the User Fee Schedules, which sets forth only minimum rental rates. The User Fee Schedules will be proposed by Manager each January and approved by Owner’s legislative body for the following fiscal year.

Notwithstanding anything contained herein to the contrary, Owner shall have the right to determine Use 6 Fee Schedules solely for non -profit Events. For all other Events, Manager has the right to determine all User Fee Schedules in its sole discretion.

In negotiating Use Agreements with third parties, Manager shall be permitted to deviate from the User Fee schedule without Owner’s prior written consent if determined by Manager, using its reasonable business judgment, to be necessary or appropriate with respect to the specific situation.

5.2 Use Agreements. On Owner’s behalf, Manager shall enter into written agreements with each party wanting to use the Premises ( “Use Agreement”). Manager shall employ and pay for legal services as an Operating Expense (defined below) as needed to draft and review Use Agreements or contracts pertaining to the use of the Premises. Via e -mail, Manager shall provide one original Use Agreement to all users and shall retain one original copy in the M anager’s file available for inspection by Owner at any time.

5.3 Operation of Premises. Manager shall have the exclusive right to distribute tickets, operate a ticket office, and charge admission for Events at the Premises. Manager, or its concessionaire, shall also have the exclusive right to sell food and beverages as well as concessions, clothing, novelties, and publications and related items (collectively “Concessions”) within the Premises as appropriate and in compliance with applicable laws. Notwithstanding anything in this Agreement to the contrary, Manager will have the right to serve liquor in the “performance hall” area and the Plaza as shown in Exhibit “C.” Events that include amplified music or sustained amplified sound should typically be prohibited in the Plaza on the first, second, third and fourth Tuesdays of each month. Manager should coordinate with Owner to determine if a first through fourth Tuesday is available for an Event. Subject to Section 8.4(b) below, all revenue derived from the sale of Concessions at or around the Premises ( “F&B Revenu e”) shall be considered Operating Revenue.

5.4 Facility Fee. Manager shall impose a Facility Maintenance Fee in an amount, consistent with industry standard, as mutually agreed by the parties (“Facility Fee”) in order to underwrite the future maintenance of the Premises. Manager shall include the Facility Fee requ irement in all Use Agreements and ticket sale agreements for the Premises and shall deposit one hundred percent (100%) of the Facility Fee proceeds to the Operating Account (as defined below) to be used to underwrite maintenance operations for the Premises. As of the date of this Agreement, the minimum Facility Fee is $2.00, which is in accordance with industry standard. in accordance with industry standard

5.5 Use of Premises Names or Logos. Manager shall have the right to use throughout the Initial Term and any Renewal Term (and permit others to use in furtherance of Manager ’s obligations hereunder), for no charge, the name and all logos of the Premises, on Manager’s stationery, in its advertising of the Premises, and whenever conducting business of the Premises; provided, that Manager shall take all prudent and appropriate measures to protect the intellectual property rights of Owner relating to such logos.

All intellectual property rights in any Premises logos developed by Manager or Owner shall be and at all times remain the sole and exclusive property of the Owner. Manager agrees to execute any documentation requested by Owner from time to time to establish, protect or convey any such intellectual property rights.

Owner is required to obtain a license from Manager to use any of Manager’s intellectual property.

5.6 Use by Owner. Owner shall be entitled to twelve (12) occasions in each fiscal year during the Initial Term and any Renewal Terms, subject to the terms and conditions hereof, to make use of the Premises for hosting an Event (“Owner’s Use”), provided however, that the booking for Owner’s Use shall be subject to Manager’s previously booked Events and provided, further, that Owner will provide Manager prior written notice requesting dates for Owner’s Use, all in accordance with and governed by Manager’s current challenge process. Contract Administrator or his designee shall be Owner ’s designated ag ent to coordinate with Manager’s staff for Owner’s Use of the Premises. Owner’s Use events shall count toward the number of Events to be booked by Manager each year. The annual number of Owner’s Use are “non- 7 rolling,” so that if not used in any given fiscal year, they do not accrue to the next or subsequent years.

Owner and Manager will meet and confer to discuss programming of certain community events (e.g., events supporting the development and enrichment of children, cultural events, events hosted by a local school district, etc.) at the Premises on open dates. For such mutually approved events, Manager will provide discounted labor and other reasonable consideration, in consultation and coordination with its ‘Music Forward’ division. Such events will count towards the number of Events to be booked by Manager each year.

Owner shall not pay any user or rental fee, for Owner’s Use. Owner shall, however, after receipt of a written invoice, reimburse Manager for all actual labor costs incurred by Manager to facilitate the Owner’s Use. Manager shall retain exclusive rights to the operation of all concessions and other operations at the Premises during Owner ’s Use, including, without limitation, food and beverage concessions and sales, including alcoholic beverages (but Owner shall have the right to prohibit the sale of alcoholic beverages for any Owner ’s Use). All proceeds of such sales and concession operations shall be the sole property of Owner. Manager will ensure that the pricing for any concessions shall not exceed the normal pricing therefor charged at standard Events at the Premises.

5.7 Complimentary Tickets. Owner shall be entitled to receive a maximum of three hundred (300) complimentary tickets each year with no more than ten (10) tickets available for any single Event at the Premises that is open to the general public and is presented or promoted by Manager (“Complimentary Tickets”), unless a greater number is agreed to by Manager. Owner may not engage in the sale or re-sale of the Complimentary Tickets nor may Owner offer any Complimentary Tickets to the intended user prior to the date the tickets have first become generally available to the public.

5.8 Website. Owner shall retain ownership of the Premises website domain but Manager shall have the obligation to maintain and upkeep its contents. Owner shall have the right to reject any obscene (as defined by applicable laws) content following good faith consultation and discussion with Manager to try and revise the content in a mutually acceptable way.

5.9 Sponsorship Sales. Manager has the right to obtain sponsorship (each a “Sponsorship”) for any aspects of the use of the Venue during the Term, including but not limited to naming rights (e.g., NIT and NUT). All revenue derived from a Sponsorship (“Sponsorship Revenue”) as a result of Manager’s solicitation efforts shall be distributed to the parties as follows: first, a onetime commission in the amount of 20% shall be payable to Manager, then 40% to Manager, 60% to Owner, after activation and other costs related to the Sponsorship (“Activation Costs”). The one-time commission may be paid out in a lump sum payment or if the Sponsorship is on a payment plan, the commission may be distributed over the course of the payment plan. In all instances, the Owner has the right to approve any prospective Sponsorships in advance solely to ensure the content will be general public appropriate, such approval not to be unreasonably conditioned, withheld or delayed and, in all circumstances, a response will be provided to Manager in writing (including via e -mail) within ten (10) b usiness days of Manager’s submission to Manager for approval.

5.10 Political Activities. The Premises shall not be utilized by Manager for the purpose of working or campaigning for the nomination or election to any public office, whether partisan or nonpartisan. Notwithstanding the foregoing, Manager may rent all or a part of the Premises to persons or entities for ticketed political activities (e.g. the Premises may not be used for political rallies or demonstrations).

5.11 Ownership of the Premises, Data, Equipment and Materials. Owner will at all times retain ownership of the Premises, including but not limited to real estate, technical equipment, furniture, displays, fixtures and similar property, including improvements made during the Initial Term and each Renewal Term at the Premises, except for any items purchased/paid for by Manager, which items shall 8 belong solely to Manager at the end of the Te rm, unless said items are attached to the Premises and the removal of the same will cause damage to the Premises, in which case the items will become the property of the Owner. Any data, equipment or materials furnished by the Owner to Manager or acquired by Manager as an Operating Expense shall remain the property of the Owner, and shall be returned to the Owner when no longer needed by Manager to perform under this Agreement. Notwithstanding the above, Owner shall not have the right to use any third party software licensed by Manager for general use by Manager at the Premises and other Premises managed by Manager, the licensing fee for which is proportionately allocated and charged to the Premises as an Operating Expense (as defined below); such software may be retained by Manager upon expiration or termination hereof. Furthermore, the Owner recognizes that any Operations Manual to be developed and used by Manager hereunder is proprietary to Manager, and shall belong to Manager at the end of the Term; Owner shall not use or maintain copies thereof upon the end of the Term.

5.12 Owner Access. Owner and Owner’s agents shall have the right to access the Premises at least one (1) time each quarterly period for the purpose of inspecting the same and to take all such action thereon as may be necessary or appropriate for any such purpose provided for under this Agre ement (but nothing contained in this Agreement shall create or imply any duty on the part of Owner to make any such inspection or to do any such work). Owner will coordinate such access in advance with Manager so as to minimize interference with Manager ’s operations and Events. Owner, and its authorized agents, representatives, and employees, may enter the Premises at any time in case of emergency, and otherwise with at least twenty -four (24) hours prior notice reasonably coordinated with Manager to: (i) inspect the Premises; (ii) conduct tours of the Premises as an entertainment venue; (iii) determine whether Manager is complying with all its obligations hereunder; (iv) take possession due to any material breach of this Agreement following notice and a re asonable opportunity to cure in the manner provided herein; (v) perform any covenants of Manager which Manager fails to perform following notice and a reasonable opportunity to cure; (vi) to perform duties of Owner as set forth in this Agreement; and (vii) repair, alter or improve the Premises or any portion of the Premises, and may for such purposes erect, use and maintain scaffolding, pipes, conduits and other structures in and through the Premises where reasonably required by the nature of the work to be performed; provided, however, that all such work shall be done as promptly as reasonably possible and so as to cause as little interference with the operation of this Agreement.

5.13 Liquor License. Manager, with the assistance of Owner, must obtain and maintain a liquor license and must comply with all requirements of the liquor license and other applicable laws regulating the sale of alcoholic beverages. Manager must also limit sales of liquor on the Premises to only those times when an Event is being held at the Premises and to refrain from liquor sales at the Premises during all other times. Manager agrees that there shall be no liquor sold or served between the hours of 2:00 a.m. and 6:00 a.m.

ARTICLE VI

PERSONNEL

6.1 Employees. Manager shall hire and supervise employees who are required to operate the Premises on a regular Event basis ( “Employees”). These Employees shall not be deemed employees of Owner, and Manager shall be responsible for and shall make timely payment of all Employee costs.

Manager shall provide Owner with evidence that proper workers’ compensation insurance is maintained throughout the term hereof. All Employee costs (including but not limited to salary, bonus, benefits and commissions) are Operating Expenses funded by the Operating Account in accordance with the terms of this Agreement. Manager has the right to engage one or more third party concessionaires for the sale and service of food and beverages at the Premises. All costs associated with such concessions agreement shall be part of the Operating Expenses.

6.2 Generally. All Premises staff and other personnel shall be engaged or hired by Manager, and shall be employees, agents or independent contractors of Manager (or an Affiliate thereof), and not of 9 Owner. Manager shall select, in its sole discretion but subject to Owner ’s right to approve the Operating Budget (as defined below), the number, function, qualifications, and compensation, including salary and benefits, of its Employees and shall control the terms and conditions of employment (including without limitation termination thereof) relating to such Employees. Manager agrees to use reasonable and prudent judgment in the selection and supervision of such personnel. Owner specifically agrees that Manager shall be entitled to pay its Employees, as an Operating Expense, bonuses and benefits in accordance with Manager’s then current practices, which may be modified by Manager from time to time in its sole discretion. A copy of Manager ’s current practices shall be provided to the Owner upon request for its review, but not retention. Owner agrees that any schedule of salaries and bonuses or other incentives could be a trade secret of Manager.

6.3 Supervision. Manager shall supervise, either directly or by delegating such obligation to a responsible, adult management employee (including an Assistant General Manager or AGM) of Manager, every performance that is held at the Premises.

6.4 Contract Administrator. Each party shall app oint a contract administrator who shall monitor such party’s compliance with the terms of this Agreement. Manager’s contract administrator shall be its General Manager at the Premises, unless Manager notifies Owner of a substitute contract administrator in writing. Owner’s Contract Administrator shall be its City Manager or such person designed by the City Manager. Owner shall notify Manager of the name of its Contract Administrator within thirty (30) days of execution hereof.

6.5 General Manager. Personnel engaged by Manager will include an individual with managerial experience in similar theaters to serve as a full -time on-site General Manager or AGM of the Premises. The General Manager will have general supervisory responsibility for Manager and will be responsible for day -to-day operations of the Premises, supervision of employees, and management and coordination of all activities associated with events taking place at the Premises.

6.6 Manager’s Other Activities; Management Entity . Manager may engag e in the operation of theater and venues other than the Premises. However, the General Manager or AGM as described in Section 6.5, shall during the Term thereof remain the person principally responsible for managing the Premises, and shall devote such time to Manager’s obligations hereunder as shall be necessary to operate the Premises in accordance with the terms of this Agreement.

ARTICLE VII

MAINTENANCE AND INSPECTION

7.1 Repairs and Maintenance Manager Obligations.
a. All as Operating Expenses, Manager shall maintain and keep in good order, condition, and repair the structural integrity of the Premises and all improvements, fixtures, furniture, furnishings, and equipment situated on or used in connection for the Premise s, compliant with all federal, state and local laws; provided, however, that Manager shall cause the performance of work for any single repair to the structural integrity of the Premises or any improvements, fixtures, furniture, furnishings, and equipment situated on or used in connection for the Premises, the cost of which is less than Ten Thousand Dollars ($10,000.00). Manager shall first apply the proceeds of any damage deposit posted by a rental user, if applicable and available, towards the repair of any damage resulting from such rental user ’s use of the Premises before determining if the cost of any single repair exceeds the sum of Ten Thousand Dollars ($10,000.00). Manager shall cause all repairs under Ten Thousand Dollars ($10,000.00) to be made and treat said repair cost as an Operating Expense.
b. Owner shall maintain and perform landscape maintenance as necessary to 10 maintain in first-class condition including watering/irrigation, fertilization, pruning, trimming, shaping, and replacement, as needed, of all trees, shrubs, grass, and other plants or plant materials, weeding of all plants, planters and other planted areas, staking for support of plants as necessary, and clearance, cleaning and proper disposal of all cuttings, weeds, leaves and other debris, and graffiti. c. Owner, except as provided above in this su bparagraph, shall be responsible to cause performance of work and to pay from the first dollar any cost of repair ( “repair costs”) that exceeds Ten Thousand Dollars ($10,000.00) for repairs (structural or non- structural, interior or exterior), and maintenance required to the Premises and all its fixtures, signs, displays, equipment, machinery, appliances, appurtenances, improvements, alterations, systems (including but not limited to the plumbing system, electrical system, wiring and conduits, heating and a ir conditioning systems). Notwithstanding the foregoing, Owner may elect to request Manager to cause performance of said work, but the cost of such work shall nonetheless be Owner’s sole responsibility.
d. Items of multiples, including but not limited to seats and chairs, which in the ordinary course of business would be repaired, maintained, or replaced in multiple units shall not be considered a single repair item for the purpose of this subparagraph. Manager will have the option to have these multiple u nits repaired, maintained or replaced. The costs for such repairs, maintenance or replacement shall be deemed to be the total cost for all necessary multiple units. e. Repairs and maintenance shall be made promptly, as and when necessary. All repairs and maintenance shall be in quality and class at least equal to the original work. f. Manager shall notify Owner of repairs with costs in excess of Ten Thousand Dollars ($10,000.00) and request Owner determine the next step regarding the repairs. Owner shall notify Manager in writing within fifteen (15) working days of receipt of Manager ’s notice to repair tha t it will either: (i) commence such repairs within thirty (30) days thereafter, (ii) commence forthwith the competitive bidding process as necessary for such repairs, or (iii) request Manager to commence such repairs subject to reimbursement from Owner within 30 days of receipt of invoices evidencing the cost of the work. If Owner requests Manager to commence such repairs subject to reimbursement by Owner, Manager shall commence such repairs. Any repairs made by Manager shall be at competitive market prices and costs.
g. Manager may proceed to make emergency repairs even where the costs exceed Ten Thousand Dollars ($10,000.00), in which case Owner shall reimburse Manager for the full amount of the repair only if the cost exceeds Ten Thousand Dollars ($10,000.00) within 30 days of receipt of invoices evidencing the cost of the work. Manager shall give written notice to Owner of the nature and cause of the repair and the cost or estimated cost within twenty-four (24) hours after determining such emergency exists.

Throughout this Agreement, the term “emergency repair” shall mean a repair of a condition which, if not accomplished immediately, creates a dangerous or unsafe condition at the Premises or is needed to permit a scheduled Event at the Premises to take place.
h. To the extent permitted by law, the parties agree that the Ten Thousand Dollars ($10,000.00) limitation on the cost of repairs mentioned in this subparagraph may be adjusted as of July 1st of any year during the Term of this Agreement by mutual agreement of the parties and written amendment to this Agreement. Any repairs that may be required by reason of Manager ’s negligence (reasonable wear and tear excluded) shall be the sole responsibility, regardless of dollar amount, of the Manager to repair.
i. On or before January 1st of each year during the Term of this Agreement, Manager will make recommendations to Owner for additions of fixtures, furniture, furnishings, and equipment and for capital improvement projects at the Premises for the followi ng Fiscal Year. The term “capital improvement” shall mean improvements of a durable nature costing in excess of Ten Thousand 11 Dollars ($10,000.00).
j. Owner shall, at its sole cost and expense, make all repairs, improvements and alterations to the Pre mises that are in the best interest of the public, for life, safety, or required for compliance with all applicable laws, ordinances, rules, regulations, statutes and legal requirements of any governmental body, agency or authority having jurisdiction over the Premises (e.g. ADA; Applicable Laws). Owner shall not be obligated to make any other additions or capital improvements of a cosmetic/aesthetic nature unless Owner: (i) budgets and obligates funds for such improvements, and (ii) if exceeds the City’s p urchasing ordinance ($50,000 at the time of execution of this Agreement) such expenditure has been given approval through its City Council.

7.2 Alterations. Manager shall not make any alterations, improvements or additions in, on or about any of the Premises, without first obtaining Owner ’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
a. All alterations, improvements or additions in, on or about the Premises, whether temporary or permanent in character, shall immediately become Owner’s property and at the expiration of the Term of the Agreement and shall remain in the Premises without compensation to Manager, unless such alterations, improvements or additions were paid for by Manager, in which case, Mana ger shall be the owner of such items, unless such items become attached to the Premises and the removal of the same will cause damage to the Premises, in which case, the alterations, improvement or additions shall remain in the Premises.
b. By notice given to Manager no less than ninety (90) calendar days prior to the expiration of the Term of the Agreement, Owner may require that Manager remove any removable alterations, improvements, or additions in, on or about the Premises and purchased by Manager. In that event, Manager shall remove the alterations, improvements or additions at Manager’s sole cost and expense and shall restore the Premises to the condition in which the Premises was before the alterations, improvements and additions were made, reasonable wear and tear excepted.

7.3 Mechanic’s Liens.
a. Owner shall be responsible for contracting for all improvements and repairs to the Premises, and shall be responsible for hiring all contractors, including subcontractors of any tier, for such work. Owner shall, to the extent permitted by law and except a s provided in paragraph (b), below, indemnify the Manager against and hold the Manager and its Affiliates, free, clear and harmless of and from any liens or claims arising out of any work performed, materials furnished or obligations incurred by the Owner.
b. In the event Manager shall cause repairs or improvements to be performed on the Premises by a contractor or subcontractor (e.g., with Owner’s consent or in cases of emergency work or repairs), Owner shall reimburse Manager for the costs of such work. c. Except as otherwise provided above, Manager shall indemnify the Owner against and hold the Owner and the Premises, free, clear and harmless of and from any liens or claims of liens arising out of any non- emergency work performed, materials furnished or oblig ations incurred by the Manager without Owner’s consent, and Manager shall be responsible for the removal of any such liens and all costs to remove same. Failure to remove any such liens within sixty (60) calendar days of written request by Owner shall co nstitute a default of this Agreement. At its election, but without having any obligation to do so, Owner may pay such liens not timely removed by Manager and the any amount expended by Owner shall be collected as additional rent to be paid by Manager within fifteen (15) calendar days after delivery of a statement for the expense.

7.4 Property. Except for all items purchased by Manager, Manager agrees that all furniture, 12 equipment, and other similar property of a personal nature shall be and remain the property of Owner. All fixtures, (i.e. items which are attached to, affixed or otherwise become part of the Premises identified in this Agreement and the removal of which will cause damage to the Premises) shall be property of the Owner.

7.5 Improvements and Alterations. Manager agrees to care for all alterations, additions and improvements made by Owner of the Premises and the cost of the same by Operating Expenses. Manager agrees not to alter any existing improvements, except in accordance with plans and specifications previously submitted and approved in writing by Owner ’s designated representative and except as otherwise permitted in this Agreement. Where applicable, Owner shall provide Manager with instructions for use of equipment, and train Manager personnel with respect to the care of any equipment installed by Owner. Alterations for the accommodation of the ongoing operation of the Premises shall be the responsibility of Manager and shall be subject to the reasonable prior approval of Owner.

ARTICLE VIII

ACCOUNTING/FINANCIAL

8.1 Operating Budget . Manager shall use commercially reasonable efforts to meet the yearly projections as set forth in the Proforma. Manager shall notify Owner prior to any changes in the Proforma for Owner’s approval, which shall not be unreasonably withheld. Each year during the Term, the parties will work together to establish the Operating Expenses, Required Capital Improvements and projections (“Operating Budget”). Owner acknowledges and agree s that any performance projections are estimates only and not a guaranty of the financial performance of the Premises. Nothing contained in this Agreement shall be deemed to constitute a covenant, representation or warranty of any nature whatsoever, express or implied, by or on behalf of Manager, with respect to the amount of Operating Revenue which is or will be, or which is anticipated to be, generated from the Premises or any portion thereof, and Manager hereby expressly disclaims any such express or implied covenant, representation or warranty.

8.2 Operating Account . Manager shall maintain an account at a reputable financial institution from which all Event settlement expenses are paid (“Operating Account”). Monies transferred from the Operating Account will be evidenced by invoices and Event settlement forms. Notwithstanding anything contained in this Agreement to the contrary, Owner acknowledges and agrees that the Operating Account will not be a segregated account, but rather will be part of Ma nager’s larger consolidated payroll/ticket sales/Ticketmaster accounts where inter-company activity and transfers occur. However, all accounting records for the Premises need to be separate.

8.3 Maintenance of Financial Accounts. Manager shall maintain all financial accounts at a federally-insured financial institution acceptable to Owner and, in so doing, shall use reasonable efforts to obtain an interest-bearing account that also has private insurance available to cover deposits in excess of $100,000.00. Manager shall implement and adhere to such safeguards as are required by the applicable financial institution. All monies deposited in the Operating Account shall be disbursed from said account strictly as provided for in this Agreement. All expenses incurred in maintaining the Operating Account shall be paid from funds in the account as an Operating Expense.

8.4 Allocation of Funds in and Disbursements from Operating Account. Manager shall allocate and disburse funds from the Operating Account as outlined herein. Manager shall cause all Operating Expenses to be paid to the obligees thereof in a timely manner from the Net Operating Revenue (defined below) collected and deposited in the Operating Account. By the 15th of each month during the Term, Manager will submit to Owner a statement (“Monthly Report”), prepared on an annual basis and in form acceptable to Owner, setting forth the Operating Revenue (defined below), Operating Expenses and Net Operating Revenue
13 a. “Net Operating Revenues ” means “Operating Revenues” less “Operating Expenses.”
b. “Operating Revenues” means revenues from the following amounts received by or credited to Manager: ticket sales, ticket service charges, ticket fees, the Facility Fee, merchandise/novelties, Premium Seat Sales (“PSS”), Food and Beverage (“F&B”) Revenue and all other revenues from sales at the Premises.
c. “Operating Expenses” means all fixed, variable and show expenses and costs incurred by Manager, which will include but not be limited to, artist fees, co-promoter expense, production expenses (e.g., catering, stagehands, etc.), operation expenses (e.g., security, clean- up/janitorial, police, medical, ushers, etc.), parking costs, concessions, concessionaire fees, advertising expense, sound and light expense, event rent expense, insurance expense, ASCAP/BMI fees, credit card fees, Employee salary, bonus, benefits and commissions, rent, marketing, facility maintenance, utilities, legal fees, consulting fees, travel and entertainment, office supplies and postage, taxes (except as otherwise set forth in the Agreement), bank fees/bad debt, permits, pre-opening costs, house supplies, trash removal and all other costs associated with the operation of the Premises.

8.5 Responsibility for Operating Expenses. Upon the Commencement Date, Manager shall be responsible for funding of the Operating Expenses during the Initial Term and any Renewal Term.

Operating Expenses shall be monthly, to the maximum extent feasible, offset by Operating Revenues and any remaining Operating Revenues shall be paid to Owner or rolled into the Operating Account at Owner’s discretion. Any outstanding Operating Expenses shall be reconciled monthly with Owner reimbursing Manager for the same. By the 15th of each month during the Term, Manager will submit to Owner a report of Operating Revenues, Operating Expenses and Net Operating Revenues. By the 30th of each month during the Term, Owner will reimburse Manager for any Operating Expenses not covered by Operating Revenues. Furthermore, if at any point in time during the Term, Manager has advanced deposits or any other sums exceeding $100,000 in the aggregate, Owner will reimburse Manager for same within fifteen (15) days of submission of such costs from Manager. Notwithstanding anything contained herein to the contrary, Manager shall have no liability (whether during or after the Term) for negative Net Operating Revenues. Notwithstanding anything contained herein to the contrary, the parties acknowledge and agree that certain Operating Expenses will be incurred prior to the Commencement Date (“Pre-Commencement Expenses”).

The parties agree to meet and confer after the Effective Date, from time to time, to discuss the anticipated Commencement Date and to agree upon the Pre-Commencement Expenses needed to be incurred in advance of the Commencement Date. Notwithstanding anything contained herein to the contrary, Owner will fund into the Operating Account the Pre -Commencement Expenses rather than reimbursing Manager after the date such costs are incurred Manager shall submit all invoices for such Pre-Commencement Expenses. Owner shall promptly pay such invoices.

8.6 Records and Annual Audit. It is recognized and acknowledged that the Premises is a growing and dynamic business and because of this, certain terms of this Agreement will need to change or be eliminated to more appropriately track or regulate ongoing activity. Manager shall provide to Owner, within twenty (20) days after the end of each calendar quarter, quarterly reports of accounts in accordance with generally accepted accounting principles and certified by Manager as true and correct, in the form acceptable to the Owner, and all records required to be kept by Manager shall be available to Owner upon request. All records must be made available no later than one hundred twenty (120) days after the end of each fiscal year. Manager shall, however, be responsible for and shall pay for any additional audit, accounting or legal costs incurred by either party due to additional investigation warranted because of fraud, theft or gross negligence on the part of the Manager. Within one hundred twenty (120) days after the end of each fiscal year, Manager shall provide a schedule of Net Operating Revenues for the preceding fiscal 14 year, audited by a certified public accountant as being true and correct.

8.7 Annual Budget. Manager will submit to Owner a Proposed Annual Budget not less than one hundred twenty (120) days before the end of the current fiscal year for each year during the term hereof.

The Proposed Annual Budget will cover the operations of the Premises for the period July 1st through June 30th of the following year. The Proposed Annual Budget will include estimates of revenues as Owner, but are not to be construed as any guaranty of performance or profitability. A Revised Proposed Annual Budget will be submitted by Manager to Owner on or before July 1st of each year and quarterly thereafte r. The Revised Proposed Annual Budget as reviewed and recommended by the Owner will be used to update the Proposed Annual Budget and the Management Fee (which can only be subject to increase, not decrease) as set forth in Section 3.1. The Revised Proposed Annual Budget will be approved by City Council of the City of El Cajon as part of the City ’s annual budget request. Manager shall also prepare and present a revised forecast after each quarter.

ARTICLE IX

INSURANCE

9.1 General. Manager shall assume all responsibility for damages to property and injuries to persons, including accidental death, which may arise out of or may be caused by Manager’s performance of this Agreement, by its subcontractors or by anyone Manager directly or indirectly employed, and whether such damage or injury may accrue, or may be discovered, before or after termination of this Agreement.

9.2 Commercial General Liability and Automobile Insurance. Prior to Owner’s execution of this Agreement, Manager shall obtain, and shall thereafter maintain during the term of this Agreement, commercial general liability insurance and automobile liability insurance as required to insure Manager against damages for personal injury, including accidental death, as well as from claims for property damage, which may arise from or which may concern operations by anyone directly or indirectly employed by, connected with, or acting for or on behalf of Manager.

Manager’s commercial general liability insurance policy shall cover both bodily injury (including death) and property damage (including, but not limited to, operations liability, products - completed operations liability, independent contractor’s liability, personal injury liability, and contractual liability) in an amount not less than $2,000,000 per occurrence and a general aggregate limit in the amount of not less than $3,000,000.

Manager’s automobile liability policy shall cover both bodily injury and property damage in an amount not less than $1,000,000 per occurrence and an aggregate limit of not less than $1,000,000.

All of Manager's automobile and/or commercial general liability insurance policies shall cover all vehicles used in connection with Manager ’s performance of this Agreement, which vehicles shall include, but are not limited to, Manager owned vehicles, Manager leased vehicles, Manager ’s employee vehicles, non - Manager owned vehicles and hired vehicles.

9.3 Workers’ Compensation Insurance. By executing this Agreement, Manager certifies that Manager is aware of and will comply with s ection 3700 of the Labor Code of the State of California requiring every employer to be insured against liability for workers’ compensation, or to undertake self - insurance before commencing any of the work. Manager shall carry the insurance or provide for self - insurance required by California law to protect said Manager from claims under the Workers ’ Compensation Act. Prior to Owner’s execution of this Agreement, Manager shall file with Owner either (1) a certificate of insurance showing that such insurance is in effect, or that Manager is self -insured for such coverage, or (2) a certified statement that Manager has no employees, and acknowledging that if Manager does employ any person, the necessary certificate of insurance will immediately be filed with Owner. Any certificate filed with Owner shall provide that Owner will be given ten (10) days prior written 15 notice before modification or cancellation thereof.

9.4 Crime Insurance. Manager shall purchase from a company acceptable to Owner, at Manager’s expense, a crime insurance policy in an amount not less than One Million Dollars ($1,000,000).

The policy shall indemnify the Owner against any fraud or dishonest acts of the Manager, its agents or its employees, individually or in collusion with others. Manager shall maintain such insurance until Owner consents to its removal following a final audit of Manager's records at the end of the contract term.

9.5 Liquor Liability Insurance. Prior to Owner ’s execution of this Agreement, Manager shall obtain, and shall thereafter maintain during the term of this Agreement, liquor liability insurance in the minimum amount of $1,000,000 to protect Owner from claims resulting from Manager’s sale of alcohol.

9.6 Errors and Omissions Insurance . Prior to Owner ’s execution of this Agreement, Manager shall obtain, and shall thereafter maintain during the term of this Agreement, errors and omissions professional liability insurance in the minimum amount of $1,000,000 to protect Owner from claims resulting from the Manager’s activities.

9.7 Umbrella or Excess Insurance. Prior to Owner’s execution of this Agreement, Manager shall obtain and maintain umbrella or excess insurance coverage in the minimum amount of Ten Million Dollars ($10,000,000). Such excess coverage shall be at least as broad as any underlying coverage.

Coverage shall be provided on a “pay on behalf ” basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion and no contractor ’s limitation endorsement. The policy shall have starting and ending dates concurrent with the underlying coverages. The Named Insured may determine the layering of primary and excess liability insurance provided that if such layering differs from that described here, the actual coverage program meets the minimum total required limits and complies with all other requirements listed in this Article. Manager shall maintain this coverage for a minimum of five (5) years after final completion and acceptance of the Work. The Umbrella or Excess policy shall contain a cl ause stating that it takes effect (drops down) in the event the primary limits are impaired or exhausted.

9.8 Requirements. Prior to Owner ’s execution of this Agreement, in connection with all insurance obligations Manager shall comply with the following requirements and shall continue to comply during the Initial Term and any Renewal Term of this Agreement:
a. Copies of insurance policies or original certificates and additional insured endorsements evidencing the coverage required by this Agreement, shall be file d with Owner and shall include the Owner and its elected and appointed officers, employees and agents, as additional insureds.

Said policies shall be in the usual form of commercial general and automobile liability insurance policies, but shall include the following provisions:

It is agreed that the City of El Cajon, and its elected and appointed officers, employees and agents, are added as additional insureds under this policy, solely for work done by and on behalf of the named insured for the City of El Cajon.
b. If the policy is written on a claims made basis, the certificate should so specify and the policy must continue in force for two years after completion of the services. The retroactive date of coverage must also be listed.
c. The policy shall specify that the insurance provided by Manager will be considered primary and not contributory to any other insurance available to the Owner. d. Insurance required hereunder shall be with companies duly licensed to transact business in the state of California, and maintaining during the policy term a “General Policyholders Rating” of at least A, and a financial class of VII or higher. Manager shall not do or permit to be done anything, 16 which shall invalidate the insurance policies referred to in this Article. No such policy shall be cancelable or subject to modification except after thirty (30) days’ prior written notice to Owner. Manager shall at least thirty (30) days prior to the expiration of such policies, furnish Owner with evidence of renewals or “insurance binders” evidencing renewal thereof, or Owner may order such insurance and charge the cost thereof to Manager, which amount shall be payable by Manager to Owner upon demand.

9.9 Mutual Waiver of Subrogation . The Parties hereto release each other and their respective authorized employees, agents and representatives, from any and all claims, demands, loss, expense or injury to any person, or to the Premise or to personal property, including, but not limited to, furnishings, fixtures or equipment located therein, caused by or resulting from perils, events or happenings which are the subject of insurance in force at the time of such loss. Each Par ty shall cause each insurance policy obtained by it to provide that the insurer waives all right of recovery by way of subrogation against either party in connection with any damage covered by any policy.

9.10 Manager’s Failure to Obtain, Pay for, or Maintain Insurance. Manager shall deliver to Owner the required certificate(s) of insurance and endorsement(s) before Owner signs this Agreement.

Manager’s failure to obtain, pay for, or maintain any required insurance shall constitute a material breach upon which Owner may immediately terminate or suspend this Agreement. In the event of any termination or suspension, Owner may use the services of another manager, without Owner incurring any liability to Manager. At its sole discretion, Owner may obtain or renew Manager’s insurance, and Owner may pay all or part of the premiums. Upon demand, Manager shall pay Owner all monies paid to obtain or renew the insurance. Owner may offset the cost of the premium against any monies due Manager from Owner.

9.11 City’s Insurance. Owner hereby represents that it has a self-insured retention amount of $250,000 with excess coverage up to $25,000,000 for general liability.

ARTICLE X

POWERS AND DUTIES OF OWNER

10.1 Improvements. Subject to the provisions of the Agreement, Owner may make continuing repairs and improvements to the Premises, at Owner’s discretion and cost; provided, however, that Owner shall coordinate, consult and cooperate with Manager in scheduling such improvements to minimize disruptions of scheduled Events.

10.2 Insurance. Owner shall insure the Premises against casualty losses, either through self - insurance or a purchased insurance policy. Premiums for such insurance, if any, shall be paid by Owner.

Owner will deliver to Manager a certificate of insurance evidencing Own er’s insurance upon Manager ’s request.

ARTICLE XI

DEFAULT AND TERMINATION

11.1 Default of Manager. In the event that Manager has failed to comply with any material term of this Agreement (“Default”), Owner shall notify Manager in writing of the nature of the Default and of the corrective action to be taken. If corrective action is not commenced within ten (10) business days after receipt of written notice or such reasonable time given the circumstances and completed within a reasonable time thereafter, then, if such default is not cured within thirty (30) days (or if the default is not susceptible to cure within said thirty day period, the Owner does not commence to cure the default within the thirty (30) day period), Owner may terminate this Agreement by written notice to Manager (“Notice of Termination”), which termination shall take effect one hundred eighty (180) days after delivery of the Notice of Termination, unless such default is cured in this time frame and Owner agrees to withdraw the Notice of Termination.
17 11.2 Default of Owner. If a default by Owner in the performance of any of the covenants and agreements to be performed by Owner pursuant to this Agreement causes the cancellation of an Event or Events, Owner shall compensate Manager for the loss of estimated and incurred expenses suffered by reason of such default. Upon the occurrence of any othe r default by Owner in the performance of any of the covenants and agreements to be performed by Owner pursuant to this Agreement, Manager shall provide written notice of such default to Owner. If corrective action is not commenced within one hundred eighty (180) days after receipt of written notice or such reasonable time given the circumstances and completed within a reasonable time thereafter, then if such default is not cured within thirty (30) days (or if the default is not susceptible to cure within said thirty day period, Owner does not commence to cure the default within the thirty (30) day period) after said notice is mailed or delivered to Owner, Manager may immediately terminate this Agreement.

11.3 Damage or Destruction. In the event of the damage or destruction of the Premises to an extent which interferes with the regular and customary operation of the Premises, either Owner or Manager may terminate this Agreement unless Owner, shall as promptly as practicable (subject to an event of force majeure) diligently undertakes to repair, restore, rebuild or replace such damage or destruction.

11.4 Vacation of Premises. Upon expiration or termination of this Agreement, Manager shall:
(a) vacate the Premises, including offices and box offices, and shall not damage any part of the Premises during such vacation; (b) deliver to Owner all records, accounts, contracts and other information held or obtainable by Manager in connection with the use or operation of the Premises to the extent permitted by Applicable Laws and excluding any confidential/proprietary information of Manager; and (c) cooperate with Owner and any successor manager in accomplishing a transition of management that minimizes to the extent possible any disruption in the operation of the Premises.

11.5 Abandonment by Manager . Should Manager abandon this Agreement by complete cessation of operations of the Premises for reasons other than force majeure, Manager shall pay as damages to Owner, one million dollars ($1,000,000) for the operating year and relinquish all money held in the Operating Account. Manager acknowledges that this payment is to allow Owner to continue to operate the Premises and pay for any and all scheduled Events so as not to cause greater losses and damages.

11.6 Termination for Failur e to Meet Performance Measurements. In the event that Manager has failed to achieve at least eighty percent (80%) of the Proforma targets set forth in Exhibit “B” for any fiscal year, then the parties will meet and confer, no later than ten (10) business days upon Manager informing Owner of failure, to discuss appropriate corrective measures or reasonably required adjustments to the performance measures. Manager agrees to implement mutually agreed upon corrective measures in good faith and promptl y following reaching agreement upon same with Owner. In the event the parties agree upon a reasonably feasible corrective plan to allow for Manager to “catch up” Events in the immediately subsequent year, then Manager shall not be deemed in default, nor wi ll Owner declare an Event of Default.

11.7 Consequence of Termination. In the event of termination, Manager shall deliver to Owner copies of all reports, documents, and other work performed by Manager under this Agreement to the extent permitted by Applicable Laws and excluding any proprietary/confidential information of Manager, and, upon receipt thereof, Owner shall pay Manager for services performed and reimbursable expenses incurred pursuant to the provisions of this Agreement to the date of termination.

11.8 Termination Procedures. Upon termination of this Agreement, Owner, in addition to any other rights provided in this Agreement, may require Manager to deliver to Owner any property specifically produced or acquired for the performance of this Agreement to the extent permitted by Applicable Laws and excluding any proprietary/confidential information of Manager. After receipt of a Notice of Termination, Manager shall:
18 a. Consult with and follow the direction of Contract Administrator to determine when and the manner by which to stop work under the Agreement on the date and to the extent specified in the Notice of Termination;
b. Place only those orders or subcontracts for materials or services, as may be necessary to maintain the interests of the Owner;
c. Assign to Owner, in the manner, at the times, and to the extent reasonably directed by the Contract Administrator, all of the rights, title and interests of Manager under this Agreement; d. Settle all outstanding liabilities and claims (other than ongoing contract obligations), with the approval or ratification of Owner to the extent Owner may reasonably require, which approval or ratification shall be final for all the purposes of this clause; e. Transfer to Owner, and deliver in the manner, at the times, and to the extent directed by Owner, title to any property which, if the Agreement had been completed, would have been required to be furnished to Owner; and
f. Take such action as may be necessary, or as Owner may reasonably direct, for the protection and preservation of the property related to this Agreement which is in the possession of Manager and in which Owner has or may acquire an interest.

ARTICLE XII

REPRESENTATIONS, WARRANTIES AND COVENANTS

12.1 Manager Representations and Warranties . Manager hereby represents warrants and covenants to Owner as follows:
(a) that it has the full legal right, power and authority to enter into this Agreement and to grant the rights and perform the obligations of Manager herein, and that no third party consent or approval is required to grant such rights or perform such obligations hereunder; (b) that this Agreement has been duly executed and delivered by Manager and constitutes a valid and binding obligation of Manager, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally or by general equitable principles; and (c) that Manager will comply with all Applicable Laws related to its management of the Premises.

12.2 Owner Representations, Warranties and Covenants . Owner represents warrants and covenants to Manager as follows:
(a) that it has the full legal right, power and authority to enter into this Agreement and to grant the rights and perform the obligations of Owner herein, and that no other third -party consent or approval is required to grant such rights or perform such obligations hereunder; (b) that this Agreement has been duly executed and delivered by Owner and constitutes a valid and binding obligation of Owner, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally or by general equitable principles; and (c) that the Premises is, as of the Effective Date, in compliance in all respects with all Applicable Laws (including but not limited to ADA and Environmental Laws) relating to the construction, use and operation of the Premises, and that (to the best of its knowledge after reasonable investigation) 19 there exist no structural defects or unsound operating conditions at the Premises.

ARTICLE XIII
TAXES

13.1 Possessory Interest Tax. It is the understanding of the Manager that no interest in th e Premises property or structures is created by this Agreement. It is acknowledged and agreed that the sole purpose of this Agreement is for Manager to provide operation management services. Nevertheless, Manager recognizes and agrees that the assessor for the County of San Diego may determine that Manager’s right to operate and manage the Premises as set forth in this Agreement creates a possessory interest subject to a possessory interest tax under section 107.6 of the State Revenue & Taxation Code . In the event that possessory interest taxes are assessed, Manager shall include the expense in the Proforma set forth in Exhibit “B.”

13.2 Income Taxes. Manager shall timely pay all state, federal and local income taxes arising from Manager’s Management Fees under this Agreement. Manager is not responsible for, and Owner shall indemnify and hold Manager harmless from any tax liabilities arising from the Operating Revenues of the Premises and any other real/property taxes/assessments pertaining to the Premises.

13.3 Business License. Manager shall secure and maintain at all times, a business license to operate in the City of El Cajon, pursuant to Chapter 5.04.050 of the El Cajon Municipal Code. Ma nager shall also secure and maintain at all times, any other licenses or permits which may be required.

13.4 Tax – Hold Harmless. Manager and Owner agree to protect, defend, indemnify and hold each other, including the Premises, and any improvements now or hereafter in the Premises, free and harmless from any liability, loss, or damage resulting from any taxes, assessment, or other charges required by this Agreement to be paid by Manager or Owner, and from all interests, penalties, and other sums imposed thereon and from any proceedings to enforce collection of any such taxes, assessments, or other charges.

ARTICLE XIV

MISCELLANEOUS PROVISIONS

14.1 Assignment. Owner may assign its interest in this Agreement to a governmental, nonprofit, or for-profit entity (the “Owner Assignee”), in its sole discretion. Manager shall not assign any right or interest in this Agreement, and shall not d elegate any duty owned, without Owner’s prior written consent. Any attempted assignment or delegation shall be void and totally ineffective for all persons, and shall constitute a material breach upon which Owner may immediately terminate or suspend this Agreement. Notwithstanding the foregoing, Manager, with written consent of the Owner, may assign all or a portion of its interest in this Agreement to another entity that is an Affiliate of Manager (“Manager Assignee”), but only if:
a. The assignment is to a Manager Assignee which has the capability to carry on the operation of the Premises in substantially the same manner as Manager. b. The Manager Assignee agrees to assume all the rights and obligations assigned, and to keep and perform all the provisions and obligations of this Agreement. c. Manager agrees to guarantee the performance of its obligations under this Agreement not assumed by the Manager Assignee, and to reaffirm this guarantee simultaneously with the assignment.

Subject to the foregoi ng, this Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective permitted successors and assigns. 20 Notwithstanding anything contained herein to the contrary, Manager shall have the right, after prior written notice to Owner, to enter into a transfer to any subsidiary corporation of Manager, Manager’s parent corporation or to any other entity affiliated with Manager, or to any entity determined by Manager to be necessary or desirable in connection with obtaining liquor licenses for the Premises (including, without limitation, to an unaffiliated non- profit corporation), or to any entity resulting from a consolidation, reorganization or merger, or to a corporation acquiring all or substantially all of the assets of Manager (“Permitted Transfer”), provided that, with respect to an assignment of this Agreement, within fifteen (15) days after the effective date of any such assignment, the assignee executes and delivers to Owner an instrument reasonably acceptable to Owner containing an express assumption of all of Manager ’s obligations under this Agreement arising after the date of such assignment. Notwithstanding anything to the contrary contained in this Agreement, Manager shall have the right to grant licenses, concessions, equipment operating/management agreements and rentals for the Premises without Owner ’s approval or consent, and all of the foregoing shall be deemed to not be an assignment or a violation of this Agreement, provided that the same shall not relieve Manager of its obligations under this Agreement.

14.2 Notices. All notices hereunder must be in writing and, unless otherwise provided herein, shall be deemed validly given on the date either personally delivered to the address indicated below; or on the third (3rd) business day following deposit, postage prepaid, using certified mail, return receipt requested, in any U.S. Postal mailbox or at any U.S. Post Office; or when sent via facsimile to a party at the facsimile number set forth below or to such other or further facsimile number provided in a notice sent under the terms of this paragraph, on the date of transmission of that facsimile. Should Owner or Manager have a change of address, the other party shall immediately be notified in writing of such change, provided, however, that each address for notice must include a street address and not merely a post office box. All notices, demands or requests from Manager to Owner shall be given to Owner addressed as follows:

Owner: City of El Cajon
200 Civic Center Way
El Cajon, CA 92020
Attention: City Manager

Manager: Live Nation Worldwide, Inc.
c/o House of Blues Entertainment
7060 Hollywood Boulevard
Hollywood, California 90028
Attn: COO and SVP of Legal Affairs

14.3 Rights Cumulative. The rights and remedies hereby created are cumulative, and the use of one remedy shall not be taken to exclude or waive the right to use of another.

14.4 Severability. In the event that any provision of this Agreement shall be held invalid or unenforceable, no other provisions of this Agreement shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect pursuant to the terms hereof.

14.5 Governing Law. This Agreement shall be governed by and construed under the laws of the State of California. Any action to interpret or enforce this Agreement shall be brought to the Superior Court of the State of California in San Diego County. Manager, hereby waives its right to remove any such actions as otherwise allowed by California Code of Civil Procedure section 394.

14.6 Entire Agreement . This Agreement is the entire agreement of the parties and replaces and supersedes any prior agreements or understandings between the parties.

14.7 No Additional Rights . By entering into this Agreement Manager shall obtain no additional rights or privileges in the future regarding the operation or use of the Premises and Owner shall 21 not be deemed to have waived or abrogated any power or discretion it has regarding the operation or ownership of the Premises upon the expiration or termination of this Agreement.

14.8 Force Majeure. Neither party shall be considered in default in the performance of its obligations hereunder or any of them, if such obligations were prevented or delayed by any cause, existing or future beyond the reasonable control of such party which include but are not limited to acts of God, labor disputes or civil unrest. Any delays beyond the control of either party shall automatically extend the time schedule as set forth in this Agreement by the period of any such delay.

14.9 Indemnification. “Owner” for the purposes of this Section 14.10 shall mean and include Owner and Owner’s elected and appointed officers, agents and employees. “Manager” for the purposes of this Section 14.9 shall mean and include Manager and Manager’s affiliates, directors, officers, agents and employees. To the fullest extent permitted by law and except to the extent caused by Owner ’s negligence or willful misconduct, Manager covenants with Owner that Owner shall not be liable for any damage or liability of any kind or for any injury to or death of persons or damage to property of Manager or any other person occurring from and after the date Owner delivers possession of the Premises to Manager from any cause whatsoever by reason of the use, occupancy and enjoyment of the Premises by Manager or any person holding under Manager. Subject to the provisions of this Section 14.9, Manager shall pay for, defend (with an attorney reasonably approved by Owner), indemnify, and save Owner harmless against and from any real or alleged damage or injury and from all claims, judgments, liabilities, costs and expenses, including reasonable attorney's fees and costs, arising out of or connected with Manager’s use of the Premises and its facilities, and any breach of this Agreement by Manager provided, however, the foregoing indemnity shall not extend to the extent of Owner ’s negligence or willful misconduct. Subject to the provisions of this Section 14.9, Owner shall pay for, defend (with an attorney reasonably approved by Manager), indemnify, and save Manager harmless against and from any real or alleged damage or injury and from all claims, judgments, liabilities, costs and expenses, including reasonable attorneys’ fees and costs, arising out of or connected with the Premises and its facilities, or any repairs, alterations or improvements which Owner may make or cause to be made to the Premises, any claims arising from matters or incidents occurring prior to the Commencement Date, Pre -Commencement Expenses, non-payment of any general contractor/sub for payment of the Core Shell Work and/or FF&E Items and any breach of this Agreement by Owner; provided, however, the foregoing indemnity shall not extend to the extent of Manager ’s negligence or willful misconduct. The obligations to indemnify set forth in this Section 14.9 shall include all reasonable attorneys’ fees, litigation costs, investigation costs and court costs and all other costs, expenses and liabilities reasonably incurred by the indemnified party from the first notice that any claim or demand is to be made or may be made and upon determination of such obligation to indemnify. All indemnity obligations under this Section 14.9 shall survive the expiration or termination of this Agreement.

14.10 Signs and Decor. Any signs to be installed by Manager that become permanently affixed to the Premises shall be subject to the prior written approval of Owner and shall be installed by a sign contractor approved by Owner. Manager shall be responsible as an Operating Expense for payment of all sign costs including installation costs, permits and costs to repair the Premises resulting from the installation or removal of such sign. Any and all changes to the decor must be first submitted to Owner, in writing, for approval.

14.11 Compliance with Laws . Manager shall comply with all applicable laws, ordinances, orders, rules, regulations and other governmental requirements relating to the use, condition or occupancy of the Premises. The judgment of any court of competent jurisdiction, or the admission of Manager in a proceeding brought against it by any governmental entity, that Manager has violated any such governmental requirement shall be conclusive as between the Owner and th e Manager and shall constitute grounds for declaration of default, material breach, forfeiture, and termination of this Agreement by Owner.

14.12 Compliance with Environmental Laws. Owner represents and warrants that, as of the 22 Commencement Date, the Premises is in compliance with all Environmental Laws (as defined below) and shall indemnify Manager for any claims, liabilities, demands or losses related to matters arising prior to the Commencement Date and for any breach of this representation and warranty, all i n accordance with the indemnification terms set forth in Section 14.9 above. Manager and the Premises shall remain in compliance with all applicable laws, ordinances, orders, rules and regulations regulating, relating to, or imposing liability of standards of conduct concerning any Hazardous Materials, or pertaining to occupational health or industrial hygiene, occupational or environmental conditions on, under, or about the Premises, as now or may at any later time be in effect, including without limitatio n, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ( “CERCLA”) [42 USC section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 ( “RCRA”) [42 USC section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (“ FWPCA”) [33 USC section 1251 et seq.]; the Toxic Substances Control Act (“TSCA”) [15 USC section 2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49 USC section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC section 6901 et seq.] the Clean Air Act [42 USC s ection 7401 et seq.]; the Safe Drinking Water Act [42 USC section 300f et seq.]; the Solid Waste Disposal Act [42 USC section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC s ection 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC section 11001 et seq.]; the Occupational Safety and Health Act [29 USC section 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C section 25288 et seq.]; the California Hazardous Substances Account Act [H & S C section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C section 24249.5 et seq.] the Porter-Cologne Water Quality Act [Water Code section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state or local law, ordinance, order, rule or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under or about the Premises, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater , surface water or land use (“Environmental Laws”).
a. Manager shall immediately notify Owner in writing and provide copies upon receipt of all written complaints, claims, citations, demands, inquiries, reports or notices relating to the condition of the Premises or compliance with environmental Laws. Manager shall promptly cure and have dismissed with prejudice any of those actions and proceedings to the satisfaction of Owner. Manager shall keep the Premises free of any lien imposed pursuant to and Environmental Law. b. The term “Hazardous Materials ” shall include, without limitation, substances defined as “ hazardous substances, ” “hazardous materials, ” “toxic substances,” “hazardous wastes, ” “extremely hazardous wastes,” or “restricted hazardous wastes,” or stated to be known to cause cancer or reproductive toxicity, under any Environmental Law. Manager shall not permit to occur any release, generation, manufacture, storage, treatment, transportation or disposal of any Hazardous Materials.

Manager shall promptly notify Owner in writing if Manager has or acquires notice or knowledge that any Hazardous Materials have been or are threatened to be released, discharged, disposed of, transported, or stored on, in, under or from the Premises; and if any Hazardous Materials are found on the Premises, Manager, at its sole cost and expense, shall immediately take such action as is necessary to detain the spread of and remove the Hazardous Material to the complete satisfaction of Owner and the appropriate governmental authorities.
c. Owner shall, at Owner ’s sole cost and expense, have the right at all reasonable times and from time to time to conduct environmental audits of the Premises, and Manager shall cooperate in the conduct of those audits.
d. If Manager fails to comply with the forgoing covenants pertaining to Hazardous 23 Materials, Owner may cause the removal (or other cleanup acceptable to Owner) of any Hazardous Materials from the Premises. The costs of Hazardous Materials removal and any other cleanup (including transportation and storage costs) , whether or not cleanup was ordered by a court, will be the financial liability of Manager, and those costs will become due and payable on demand by the Owner. Manager shall give Owner, its agents and employees access to the Premises to remove or otherwise cleanup any Hazardous materials. Owner, however, has no affirmative obligation to remove or otherwise cleanup any Hazardous Materials, and this Agreement shall not be construed as creating any such obligation. e. Manager shall indemnify, defend (with counsel reasonably acceptable to Owner and at Manager ’s sole cost), and hold Owner and Owner ’s elected and appointed officials, officers, employees, agents, successors and assigns free and harmless from and against all losses, liab ilities, obligations, penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages (including consequential damages), disbursements or expenses of any kind (including attorneys ’ and experts’ fees and expenses and fees and expenses incurred in investigating, defending or prosecuting any litigation, claim or proceeding) that may at any time be imposed upon, incurred by, or asserted or awarded against Owner in connection or arising out of: (i) any Hazardous Material on, in, under or affecting all or any portion of the Premises, (ii) any violation or claim of violation of any Environmental Law by Manager; or (iii) the imposition of any lien for the recovery of costs for environmental cleanup or other response costs relating to the release or threatened release of Hazardous Materials on, in, under or affecting all or any portion of the Premises. Manager ’s indemnification shall survive the expiration and termination of this Agreement.

14.13 Non-Discrimination. Manager herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through it, that this Agreement shall be performed and is subject to the requirement that there shall be no discrimination against or segregation of any person or group of persons , on account race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, genetic information, gender, gender identity, gender expression, or sexual orientation, in the, use, occupancy, tenure, or enjoyment of the Premises during the performance of this Agreement.

[Signatures on the following page.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.

CITY OF EL CAJON
By: ~~=...]£...=-___,::~~---=-- ---+-
Graham Mitchell, City Man,ll"OI'"'--
Attested to:

Approved as to form:
24 LIVE NATION WORLDWIDE, INC.

By:~
K~----==
EVP and Chief Financial Officer
25 EXHIBIT “A”
DUTIES

Manager’s obligations, duties and responsibilities under this Agreement shall consist of the following:

1. Establish and adjust prices, rates and rate schedules for user, license, concessions, occupancy, and advertising agreements, and booking commitments, subject to prior prices, fees and fee schedules. Manager may deviate from the established fee schedule when entering into any such agreements if determined by Manager, using its reasonable bus iness judgment, to be necessary or appropriate with respect to the specific situation. The fee schedule shall be reviewed annually. Any requested changes to the fee schedule must be submitted to Owner in January for changes to occur in July.

2. Operate and maintain the Premises, including the equipment utilized in connection with its operation and any improvements made during the Term of this Agreement, in the condition received, normal wear and tear excepted.

3. Arrange for and otherwise book Events at the Premises in accordance with a booking schedule to be developed by Manager.

4. Pay all Operating Expenses incurred in connection with the operation, maintenance supervision and management of the Premises from the Operating Account or with funds otherwise made available by the Owner.

5. Secure all license and permits necessary for the operation and use of the Premises for the specific events to be held therein, and for the general occupancy o f the Premises, including without limitation all necessary food and liquor license, music licenses, software licenses , and renewals thereof.

The Owner shall cooperate in this process to the extent reasonably required. All costs associated with this process shall be Operating Expenses.

6. On an annual basis, cause a written inventory to be taken of all furniture, fixtures, office equipment, supplies, tools and vehicles at the Premises, and deliver a written report of the foregoing to Owner. Manager shall document all major damage to, or loss in, such inventory during the Term as soon as such damage or loss is discovered by Manager, and Manager shall promptly notify Owner of any such damage or loss.

7. Obtain and maintain a State of California liquor license and comply with all requirements of the liquor license and other applicable laws regulating the sale of alcoholic beverages. Manager agrees that there shall be no liquor sold or served between the hours of 2;00 a.m. and 6:00 a.m . Manager shall ensure any concessionaire hired by Manager to provide alcoholic beverage service at the Premises has obtained a liquor license and abides by the regulations set forth in this Agreement.

8. Provide all custodial services, as an Operating Expense, on a regular basis to ensure that the Premises are kept in a clean, neat and pristine condition. Manager shall be required to have the Premises cleaned before and after any Event.

9. Provide security at the Premises for all scheduled Events. Owner has the right to require 26 Manager to provide a security and first aid plan for all Events, thirty (30) days prior to the scheduled Events, and subject to the approval of the City of El Cajon Police and Fire Departments.

10. Maintain and repair the Premises as an Operating Expense in conformance with the standards of maintenance and repair set forth in Article 7 of the Agreement.

11. During all Events, Manager shall maintain and operate food and beverage concessions and may maintain and operate merchandise concessions on the Premises either through contracting for such concessionaires or directly providing these concessions.

12. Routinely confer with Owner about all matters affecting the viability of the Premises.

Owner and Manager shall meet quarterly to review the Quarterly Report, Event recap s, the Operating Account, to schedule programming of the Plaza area, and to discuss and exchange information as to the day-to-day operations of the Premises.

13. Comply with all laws, statutes, ordinances and rules of all applicable governmental authorities unless the Owner is contesting or has affirmed its intention to contest any such law, statute, ordinance, rule, regulation, order, or requirements pursuant thereto.

14. Pay or cause to be paid all sales tax and other taxes and fees attributable to operation of the Premises as an Operating Expense.

15. Maintain written plans, acceptable to Owner, for the emergency evacuation of the Premises. The Manager shall instruct all current staff member s and thereafter all newly hired staff members each calendar quarter; provided, however, that such fire drills also ensure that at least one employee trained and qualified to monitor safety procedures and to report the status of such procedures to Owner on a biannual basis, and at such other times as Owner may reasonably request.

16. Operate a box office at the Premises as seen fit to meet needs of Manager. Manager shall have sole and exclusive control and supervision of the box offices and their personnel. All receipts from the sale of tickets purchased at the Premises box offices shall be under the absolute control, disposition and supervision of Manager, and Owner shall incur no liability for the same.

17. Take all reasonable measures to assure that any Managers, users, or licensees of th e Theaters avoid any form of waste, damage, destruction of the Premises, or make any permanent alterations of the Premises, without the Owner ’s prior written consent. Such measures shall include use of written agreements, provision of insurance, and if necessary, on- site monitoring of performances and other uses of the Premises. In the event of any waste, damage or destruction, Manager shall g ive prompt notice to Owner of any material damage to the Premises within five (5) days of such damage occurring. Owner shall not itself commit or allow any waste or damage to the Premises or permit any public or private nuisance.

Manager shall keep the Premises clean and clear of refuse and obstructions, and shall assure that either itself or all managers, users or licensees dispose of all garbage, trash, and rubbish and return the Premises to the condition prior to use, in a manner satisfactory to Owner.

18. Diligently perform all of its obligations under this Agreement, and to use the Premises solely for the purposes described in this Agreement.

19. Produce, present, or provide a wide variety of performing arts and visual presentations and special events, by agreement with promoters, performing artist, other performing arts organizations, 27 commercial promoters, or event coordinators, rentals and all other live entertainment events similar to those booked by Manager and its affiliates at comparable venues on a national basis . Using commercially reasonable efforts, ensure the following number of Events:

Year 1 50 Events
Year 2 50 Events
Year 3 55 Events
Year 4 60 Events
Year 5 65 Events

20. Cause such other acts and things to be done with respect to the Premises, as determined by Manager in its reasonable discretion to be necessary for the management and operation of the Premises.

EXHIBIT “B”

PROFORMA

El Cajon
DIVISION: T&C
5 Year Financial Projections YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5 Paid Attendance 27,170 27,442 27,716 27,993 28,273
Total Revenue $541,234 $728,393 $779,116 $832,307 $888,073 Contribution Margin $164,330 $210,639 $223,570 $237,112 $251,291 CM Growth 28.2% 6.1% 6.1% 6.0%
Venue AOI ($352,092) ($319,901) ($321,483) ($322,862) ($324,024) EBITDA growth (9.1%) 0.5% 0.4% 0.4%
Net Income ($246,464) ($225,181) ($227,634) ($230,058) ($232,462) NI Growth (8.6%) 1.1% 1.1% 1.0%

EXHIBIT “C”

DEPICTION OF THE PLAZA AREA

City Hall
'
EC PAC
Area= 16,527 sq. M.

Area= 14,223 sq. M.

Lease Area Total Area= 30,750 sq. M.

EXHIBIT “D”

PROJECT SCHEDULE

EXHIBIT D: PROJECT SCHEDULE

IFM3471-ECPAC IMPROVEMENT PROJECT
Project Planning & Scheduling

Update: 01/29/19

Project Name Start End
Time
(Weeks) Mar-18 Apr-18 May-18 Jun-18 Jul-18 Aug-18 Sep-18 Oct-18 Nov-18 Dec-18 Jan-19 Feb-19 Mar-19 Apr-19 May-19 Jun-19 Jul-19 Aug-19 Sep-19 Architectural Services
Rios Clementi Hale Studios 5-Mar 30-Nov 39
30-Nov

Schematic Design 5-Mar 22-Jun 16 22-Jun
Design Development 22-Jun 27-Jul 5 27-Jul
Construction Documentation 27-Jul 30-Nov 18 30-Nov

CONSTRUCTION PHASE
WIELAND 3-Aug 15-Jun 46
15-Jun

Demolition 3-Aug 28-Sep 8 24-Jul
Elevator 4-Sep 25-Jan 21 25-Jan
Arch/Structural/Plumbing/Electrical 1-Oct 15-Jun 37 15-Jun

FACILITY COMMISSIONING 7-Jan 1-Sep 34 1-Sep Performanc e Verification 7-Jan 28-Apr 16 28-Apr Start-up & Integration Testing 4-Mar 1-Sep 26 1-Sep

= Task Item (White font represents target date)
= Sub-Task Item (White font represents target date)

1 FIRST AMENDMENT TO MANAGEMENT AGREEMENT

THIS FIRST AMENDMENT TO MANAGEMENT AGREEMENT (the
“Amendment”) is made as of January ___, 2023 (the “Effective Date”), by and between the CITY OF EL CAJON, a charter city and municipal corporation (“Owner”) and LIVE NATION WORLDWIDE, INC., a Delaware corporation (“Manager”).

WHEREAS, Owner and Manager entered into that certain Management Agreement for the East County Performing Arts Center dated February 2018 (the “Original Agreement”), pursuant to which Manager performs various management services for Owner relating to that certain performance venue commonly known as the Magnolia located at 210 E. Main Street, El Cajon, California (the “Premises”);

WHEREAS, due to the Covid-19 pandemic in 2020 and 2021, the Premises was unable to operate in its customary fashion and remained closed for long periods of time;

WHEREAS, even upon the re-opening of the Premises, the level of use anticipated since the Commencement Date to the date of this Amendment has been delayed by performers rescheduling previously canceled tours and performances throughout the country, and bookings of Events have only recently returned to a level allowing Manager to use the Premises at its level intended by the Original Agreement;

WHEREAS, due to such extended closures, Owner and Manager desire to extend the “Initial Term” (as defined in the Original Agreement) for two (2) additional years; and

WHEREAS, Owner and Manager desire to acknowledge such extension of the Initial Term as more particularly set forth herein.

NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Manager, intending to be legally bound, hereby agree as follows:

1. Incorporation of Recitals; Definitions. The foregoing recitals are hereby incorporated herein and made a part hereof by this reference. All capitalized terms in this Amendment shall have the meanings assigned thereto in the Original Agreement unless otherwise specified. As used herein and in the Original Agreement, the term “Agreement” shall mean the Original Agreement as modified by this Amendment.

2. Term. Section 2.1.1 is hereby added to the Original Agreement to read as follows:

2.1.1 COVID-19 Extension. The Initial Term is hereby extended for two (2) additional years and shall therefore expire at 11:59 p.m., Pacific Standard Time, on August 31, 2026, unless earlier terminated or extended in accordance with the terms of the Agreement. Manager shall continue to have two (2) options for five (5) years each to extend the Initial Term by Renewal Terms under Section 2.2 of the Agreement.

2 3. Notices. Section 14.2 of the Original Agreement is hereby amended by replacing the Manager’s address for notices to read as follows:

Live Nation Worldwide, Inc.
325 North Maple Drive
Beverly Hills, CA 90210
ATTN: General Counsel

and a copy to:

Live Nation
325 N. Maple Drive, 2nd Floor
Beverly Hills, California 90210
Attention: Chief Counsel - Concerts

4. Press Releases. If desired by either party, Owner and Manager shall jointly prepare and mutually agree on any press releases and public announcements relating to this Amendment and will not issue any such releases and announcements without the approval of both parties.

5. Ratification. Except as expressly modified by this Amendment, all other terms, conditions and provisions of the Original Agreement are hereby ratified and confirmed and incorporated into this Amendment and shall continue in full force and effect.

6. Broker. Owner and Manager represent and warrant to the other that they have not employed any broker in connection with the subject matter of this Amendment. The parties agree to indemnify and hold each other harmless from and against any claims or costs (including, without limitation, reasonable attorneys’ fees) arising out of or constituting a breach of the foregoing representations.

7. Representations. Each party hereby represents and warrants to the other that it has full power and authority to execute and deliver this Amendment, and has taken all action necessary to authorize its execution of and its performance of its obligations under this Amendment..

8. Miscellaneous. This Amendment (i) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns (subject to the restrictions on assignment set forth in the Agreement), and (ii) shall be governed by and construed in accordance with the laws of the State of California without reference to its conflicts of laws provisions. This Amendment may be executed in multiple counterparts (which counterparts may be executed and delivered electronically by PDF, DocuSign, or another file sent by email) which shall together constitute a single document. Any executed counterpart of this Amendment delivered by PDF, DocuSign or another file sent by email shall be equally effective as an original counterpart for all purposes.

[Signatures follow on next page]
3 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Effective Date.

MANAGER:

LIVE NATION WORLDWIDE, INC.,
a Delaware corporation
By:

Name:

Title:

OWNER:

CITY OF EL CAJON,
a charter city and municipal corporation
By:

Name:

Title:

Attested to:

By:

Name:

Title: City Clerk
Approved as to form:

By:

Name:

Title: City Attorney
Michael Rowles
EVP, General Counsel, and Secretary

City Council
Agenda Report
Agenda Item 11.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Vince DiMaggio, Assistant City Manager
SUBJECT: Recommendation to Reject Bids for RFP 009-23 (Design-Build-Operation of Digital Message Board)
RECOMMENDATION:

That the City Council adopts the next Resolution, in order, rejecting the bids for RFP 009-23, and authorizes staff to make such changes to the RFP to allow for the option of a secondary site for the project.

BACKGROUND:

In June 2021, the City Council adopted an ordinance allowing freeway oriented signs on City-owned property with the intent on expanding the City’s revenue stream by the development of such a sign. The immediate intent of the ordinance was to use a small rectangular City-owned parcel adjacent to the Mazda dealership on Johnson Avenue that provides an ideal line-of-sight from I-8.

In August 2022, the City issued a Request for Proposals (RFP) for qualified firms to submit proposals for the design, construction, and operation of the digital billboard on the Johnson Avenue site.

The City received three proposals and, after conducting interviews in October 2022, the evaluation committee selected Outdoor Associates as the best qualified. In November, staff met with representatives from Outdoor Associates to discuss the project in greater detail, including desired specifications for design and the process for securing Caltrans approval.

During these initial conversations, it became clear that the Johnson Avenue site would pose a series of unique challenges, including the most formidable, which was amending the Caltrans designation that currently identifies the I-8 corridor through El Cajon as a “landscaped corridor,” in order to pave the way for the removal of the eucalyptus stand of trees that exists at the Johnson Avenue exit.

Based on the experience of Outdoor Associates in working with Caltrans on many past projects, the likelihood of successfully amending the “landscape corridor” designation was slim.

It became apparent that an alternative site, with a higher likelihood of success would need to be identified.

Within the last month, Outdoor Associates made a determination that they would not be able to continue with the project (for reasons that were outside the need to find a secondary site), and submitted a letter withdrawing from the project. Given the fact that Outdoor Associates has withdrawn from the project and that a secondary site needs to be found, the scope of the project has changed to the extent that it is in the City’s best interests to formally reject all proposals and re-bid the project with revised specifications.

CALIFORNIA ENVIRONMENTAL QUALITY ACT:

This project is exempt for CEQA as it is consistent with the City's zoning code for which an EIR was previously certified (CEQA Guideline 15183).

Attachments
Reso - RFP 009-22 - Design-Build-Operate Digital Message Board - Reject & Re-bid 022223

Page 1 of 1 ends

RESOLUTION NO. ___-23

RESOLUTION REJECTING ALL PROPOSALS FOR

DESIGN-BUILD-OPERATE OF DIGITAL MESSAGE BOARD

AND APPROVING RE-BIDDING WITH REVISED SPECIFICATIONS
(RFP No. 009-22)

WHEREAS, Request for Proposals No. 009- 23 (the "RFP") for the Design-Build- Operate of Digital Message Board project (the "Project"), including the production of plans, installation and operation of the Project, was advertised by the City of El Cajon (the "City") on July 7, 2022; and

WHEREAS, three (3) responses were received on August 15, 2022; and

WHEREAS, a three-person evaluation team independently reviewed the proposals according to the criteria specified in the RFP, including proposed digital sign, consultant personnel, experience, agreement terms, and costs factors; and

WHEREAS, after thorough evaluation of the proposals, the City conducted interviews with the two (2) top-ranking firms, and thereafter proceeded with negotiations with the top-ranking firm, Outdoor Associates LLC ("OALLC"); and

WHEREAS, during discussion with OALLC, City staff determined that the primary site for the digital message board would not receive entitlement approval by the California Department of Transportation due to the configuration of the site and the designation of the highway corridor at the specified location as a "landscaped corridor"; and

WHEREAS, as a result of said determination, OALLC submitted a written request on February 16, 2023, to withdraw their proposal, and staff recommends relieving OALLC from the proposal; and

WHEREAS, staff has determined that due to the configuration of the specifications, it would be in the City’s best interest to reject all proposals and re- bid the project with revised specifications; and

WHEREAS, the City Council believes it to be in the best interest of the City to accept OALLC's request to withdrawal its proposal, to reject all proposals, and re-bid the Project with revised bid specifications as recommended by staff.

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EL CAJON AS FOLLOWS:

1. The foregoing recitals are true and correct and are the findings of the City Council.

2. The City Council hereby accepts the withdrawal letter submitted by OALLC, rejects all proposals received for the reasons stated above, and authorizes re-bidding of the Project with revised specifications, as approved by the City Manager.

Page 2 of 2 ends

3. The City Manager is hereby authorized to approve the final plans and revised specifications prior to re-bidding for and on behalf of the City of El Cajon.

02/28/23 CC Agenda
Reso - RFP 009-23 Design-Build-Operate Digital Message Board – Reject & Re-bid 022223 City Council
Agenda Report
Agenda Item 12.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Graham Mitchell, City Manager
SUBJECT: City Council Action Plan (2023)
RECOMMENDATION:

That the City Council approves the draft City Council Action Plan for 2023.

BACKGROUND:

On January 31, 2023, the City Council conducted its Priority/Goal Setting Workshop. During the workshop, the City Council reviewed the previous year's priorities and goals and identified priorities and goals for 2023. Using the workshop discussion, staff developed a draft City Council Action Plan, which identifies the six priorities: City Beautification, Citizen Engagement, Economic Development, Homelessness, Public Safety, and Miscellaneous. The draft City Council Action Plan also identifies twenty goals associated with the six priorities, lead department(s), about sixty milestones or tasks, and a target date for each milestone. The draft City Council Action Plan is attached to this agenda report.

During the agenda discussion, the City Council may wish to present other ideas to be included in the 2023 City Council Action Plan.

Prepared By: Graham Mitchell, City Manager
Reviewed By:

Approved By: N/A
Attachments
Draft City Council Action Plan (2023)
City Council Action Plan Date: February 28, 2023

D R A F T

CITY BEAUTIFICATION
Goal/Outcome Dept. Milestones/Tasks
Target
Dates
City Beautification & Improvement
Projects
Focus on the completion of various
funded City beautification and
improvement projects
PW Neighborhood Street Lights Phase 2
Construction Completion (34)

04/23
PW Cool Zones Phase 1 (Rec Centers)
installation completion

05/23
PW Johnson Ave. Fencing Imps. Completion 09/23
PW Solar Project Phase 1 (PSC) Completion 12/23
PW El Cajon Blvd. Transit Center Community
Improvements Completion (Roundabout)

02/24
PW Jamacha Rd Safety Improvements Design
and Construction Completion

02/24
PW Neighborhood Street Lights Phase 3 Design
and Construction Completion (45)

04/24
PW Main Street Green Street Completion 05/24
PW Oakdale Alameda Design and Construction
Completion

06/24
PW Cool Zones Phase 2 (Gyms) Design and
Installation Completion

06/24
IT/PW Expand Broadband – Design and
Installation Completion

06/24
PW W. Washington Ave. Safety Improvements
Design and Construction Completion

06/24
FIRE/PW Wildfire Hazard Mitigation Plan
Implementation

09/24
P&R/PW Park Amenity Project Design and
Construction Completion

12/24
FIRE/PW Fire Station 7 Design and Construction
Completion 12/24
Mural Project
Identify location and muralist for a
pilot mural program that includes
resident involvement

FIRE/PW
Identify a mural site and secure necessary
approvals (i.e. encroachment permit)

04/23
Release RFP to secure a muralist 06/23
Complete mural 12/23
Review Third Party Contractors
Complete a review of third party
contractors that provide City
beautification services to the City PW/CD
Review contracts of contractors that
perform outsourced services for downtown
clean-up, City-wide clean-up, graffiti
removal, bus shelter maintenance, and
emptying public trash receptacles, etc. and
provide a report to the City Council
6/23
Explore Technology Solutions
Consider issuing a Request for
Proposals for force multiplier
technological solutions that can
enhance the beautification of the City IT/CM
Release RFP to companies to present
projects that will result in benefits to the City
with a focus on enhancing neighborhoods
and City beautification
7/23
Evaluate gathered ideas/proposals and
present results to the City Council for
opportunities to employ innovative solutions
along with return on investment analysis
9/23

CITIZEN ENGAGEMENT
Goal/Outcome Dept. Milestones/Tasks
Target
Dates
Increase Communication &
Engagement Efforts
Reach more citizens with more
frequency for repetitive messaging.

Develop two core audiences of El
Cajon citizens, as well as neighboring
communities to engage more of East
County visiting El Cajon to spend
dollars. CM
Release re-bid of billboard RFP and enter
into an agreement with vendor 6/23
Redesign newsletter content with an
approach to include citizens in upcoming
opportunities and increase reach to
residents via monthly electronic newsletter
3/23
Develop two email lists for City Services
(residents) vs. City Events (residents and
neighbors)
5/23
Create more events and neighborly
competitions for community engagement 9/23
Engage more local businesses in City
events to leverage their promotional efforts ongoing
Targeted paid ads with META to gain more
followers and repeat messages 3/23

City’s Mobile Phone App
Using marketing efforts, increase
mobile phone app subscribers by 30%
by December 31, 2023—an increase
of 2,300 subscribers.

CM
Rebrand the app and develop marketing
posts for social media throughout the year
3/23
ongoing
Explore adding links to non-City utilities to
make payments 5/23
Incorporate certain features of events
(America on Main Street, Hauntfest, other
downtown events) where the app is
necessary to participate in or adds
significant convenience
ongoing

ECONOMIC DEVELOPMENT
Goal/Outcome Dept. Milestones/Tasks
Target
Dates
Downtown Project
Initiate a downtown catalyst
development project
CM
Develop a plan for the reimagining of the
civic center space and adjoining properties. 10/23
Reach out to adjacent private property
owners in the project area, solicit interest,
and begin designing a “public-private
partnership” for interested parties.
10/23
Retain designer/architect to prepare
concept drawings. 8/23
Parkway Plaza
With community input, develop a re-
envisioned Parkway Plaza
development plan and present it to
current owners and development
community
CM/
CD
Receive report from SDSU Capstone
project students 5/23
Meet with primary property owners and
offer incentives to redevelop properties 8/23
Release marketing package to
development community about venture
opportunities
10/23
Economic Development Fund
Create an Economic Development
Fund to fund incentives to specific
projects, business façade programs,
purchase potential motel properties,
and property assemblage efforts.

Fin
Create an Economic Development Fund as
part of the City’s budget 4/23
CM
Develop possible programs for the City
Council to consider to support with the
Economic Development Fund
7/23
CM Implement programs with marketing and
engagement
8/23
ongoing
Downtown Analysis
Complete and follow up on analysis of
Property Based Improvement District
(PBID)
CM
Engage a consultant in a comprehensive
analysis of the current PBID activities and
operations. Use finished analysis to revise,
refresh, and/or refocus PBID.
7/23

HOMELESSNESS
Goal/Outcome Dept. Milestones/Tasks
Target
Dates
Town Hall Meetings
Conduct four town hall meetings
before May 1, 2023 designed to
engage residents about challenges
and solutions around the topic of
homelessness
CM/
PD/ CD
Design and schedule four town hall
meetings, with the assistance of the East
County Homeless Task Force that will seek
input and foster engagement on the issue
of homelessness and its challenges
3/23
Conduct four town hall meetings 4/23 –
5/23
Develop a video and report for City Council
review 7/23
Education on Efforts
Continue efforts through updating the
City’s website, social media posts,
and video production about the efforts
the City makes towards addressing
homelessness
CM
A quarterly e-newsletter dedicated to the
topic of homelessness and housing
developments
7/23
Social media posts promoting the positive
numbers of success stories by the City ongoing
Assist an East County City Open a
Shelter
Assist a neighboring East County city
through the MOU to open a shelter
CM
Continue to offer funding and technical
assistance to neighboring cities through
one-on-one meetings and the East County
Homeless Task Force
ongoing
Policy/Strategy Consideration
Develop policies and/or strategies that
assist homeless individuals that come
to El Cajon for services return to their
jurisdiction of origin
CD
Ensure that permitted shelters and
homeless services providers have as a
conditional of approval or contractually a
“discharge plan” to ensure individuals are
transported to other services or location
where they were brought from
ongoing

PUBLIC SAFETY
Goal/Outcome Dept. Milestones/Tasks
Target
Dates
Street Camera/Fixed License Plate
Reader Pilot Program
Launch pilot LPR programs PD
Sign contract with vendor 4/23
Install cameras, operational program in
service 6/23
Fire/Medical Response Coverage
Understand coverage issues for fire
and medical responses and develop
strategy to reduce reliance on mutual
aid and impact to Fire Department
personnel
Fire
Complete and present to the City Council a
“Standard of Cover/Community Risk
Assessment”
7/23
Fire/
CD
Reduce calls run to convalescent homes,
skilled nursing facilities, and other
congregate care facilities by 10% by
December 31, 2023 from the previous year
through increased outreach efforts,
applying nurse navigation program, and
possible Municipal Code amendment
strategies.
12/23
Fire/
CM
Implement strategies to increase or modify
staffing to provide more effective coverage
for the community, depending on results of
the “Standard of Cover/Community Risk
Assessment”
12/23
Police Department Attraction
Programs
Explore programs that will attract
quality new and experienced officers
to apply to join the City’s Police
Department
PD/ HR
Consider augmenting the City’s signing
bonus program for new police officers,
lateral transfer officers, and referring staff
2/23
Launch recruitment video 2/23

MISCELLANEOUS
Goal/Outcome Dept. Milestones/Tasks
Target
Dates
Veterans Memorial
Working with the community and
stakeholders, identify a location, design,
and funding plan for the establishment
of a new Veterans Memorial.

RS
Finalize meetings with stakeholders 4/23
Report to the City Council with final
feedback and recommendations 5/23
Release RFP for Memorial Artist/Consultant 7/23
Seek Stakeholder Feedback regarding
Memorial Artist 9/23
Present proposed design to the City
Council and seek direction on funding
options
10/23
Finalize contract with Memorial Artist 12/23
Deferred Maintenance Analysis
Prepare an analysis of the City’s
deferred maintenance projects and
Capital Improvement Plan
Fin
Present a report to the City Council on the
City’s deferred maintenance program and
Capital Improvement Plan and determine if
additional funding is required
4/23
Trolley Station Restroom
Request that MTS provide a restroom at
the El Cajon Transit Station. CM
Present an analysis about restrooms and
public transit and explore options at El
Cajon station
5/23
Formally make request of MTS 6/23

City Council
Agenda Report
Agenda Item 13.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Mayor Wells
SUBJECT: Council Activity Report
RECOMMENDATION:

That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.

BACKGROUND:

Government Code Section 53232.3(d) requires members of a legislative body to provide brief reports on meetings attended at the expense of the local agency at the next regular meeting of the legislative body.

REPORT:

Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:

February 15, 2023 – Trace Gallagher Show Fox News
February 15, 2023 – Interview with Fox and Friends
February 21, 2023 – Interview with KUSI
February 21, 2023 – Interview with Fox 5
February 21, 2023 – Interview with CBS 8
February 22, 2023 – City Selection Committee Meeting
February 23, 2023 – Voice of San Diego Annual Donor Recognition Event February 28, 2023 – City Council Meeting
I am available to answer questions.

Submitted By: Bill Wells, Mayor
City Council
Agenda Report
Agenda Item 14.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Deputy Mayor Goble
SUBJECT: DEPUTY MAYOR STEVE GOBLE
MTS (Metropolitan Transit System Board); East County Advanced Water Purification Joint Powers Authority Board; Chamber of Commerce – Government Affairs Committee; SANDAG – Board of Directors – Alternate; SANDAG Public Safety Committee – Alternate.

RECOMMENDATION:

That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.

BACKGROUND:

REPORT:

Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:

February 8, 2023 - Emails with Carl S @ EDCO regarding bin sensors February 9, 2023 - Emails with Kyle S @ AWP re: public hearings February 13, 2023 - Emails with City Manager re: U-T article February 14, 2023 - Emails with MTS CEO re: questions on agenda February 15, 2023 - Meeting with Kyle S @ AWP re: agenda questions February 15, 2023 - Ribbon Cutting at 160 Driving Academy February 16, 2023 - Emails with Joe B @ SDGE re: natural gas rates February 16, 2023 - MTG Board Meeting
February 16, 2023 - Lunch with John K/SANDAG counsel
February 16, 2023 - AWP JPA Board Meeting
February 16, 2023 - Emails with Councilmember Metschel re: Impact Person of Year February 17, 2023 - Emails with Santee CM Hall re: Smart Cities convention February 17, 2023 - Emails with City Mgr Office re: Meals on Wheels event February 17, 2023 - Phone Call w/John K/SANDAG re: chair of working group February 20, 2023 - Emails to Caltrans re: I-8 freeway work February 21, 2023 - Phone Call with Sup Anderson re: Hep C stats February 21, 2023 - Lunch w/former Sup Dianne Jacob
February 21, 2023 - Meeting with Tobias H.

February 24, 2023 - Attend St Paul's Legislative Breakfast February 27, 2023 - Attend Ft Bragg Army/Training Event February 27, 2023 - Meeting with City Manager
February 28, 2023 - City Council Meeting
I am available to answer questions.

Submitted By: Steve Goble, Deputy Mayor
City Council
Agenda Report
Agenda Item 15.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Councilmember Kendrick
SUBJECT: COUNCILMEMBER GARY KENDRICK
METRO Commission/Wastewater JPA; Heartland Communications; Heartland Fire Training JPA.

RECOMMENDATION:

That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.

BACKGROUND:

REPORT:

Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:

February 28, 2023 – City Council Meeting
I am available to answer questions.

Submitted By: Gary Kendrick, Councilmember
City Council
Agenda Report
Agenda Item 16.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Councilmember Metschel
SUBJECT: COUNCILMEMBER MICHELLE METSCHEL
Harry Griffen Park Joint Steering Committee; METRO
Commission/Wastewater JPA – Alternate; Heartland Communications – Alternate; Heartland Fire Training JPA – Alternate.

RECOMMENDATION:

That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.

BACKGROUND:

REPORT:

Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:

February 20, 2023 – Town Hall for Stop the Gas Tax
February 23, 2023 – EJE Academies Groundbreaking
February 28, 2023 – City Council Meeting
I am available to answer questions.

Submitted By: Michelle Metschel, Councilmember
City Council
Agenda Report
Agenda Item 17.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Councilmember Ortiz
SUBJECT: COUNCILMEMBER PHIL ORTIZ
League of California Cities, San Diego Division; East County Economic Development Council; MTS (Metropolitan Transit System Board) – Alternate; East County Advanced Water Purification Joint Powers Authority Board – Alternate; Chamber of Commerce – Government Affairs Committee – Alternate.

RECOMMENDATION:

That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.

BACKGROUND:

REPORT:

Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:

February 15, 2023 – ECEDC Board Meeting
February 16, 2023 – Marie Waldron District Meeting
February 21, 2023 – Gillespie Field EDC Committee
February 28, 2023 – City Council Meeting
I am available to answer questions.

Submitted By: Phil Ortiz, Councilmember
City Council
Agenda Report
Agenda Item 18.

DATE: February 28, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Steve Goble, Deputy Mayor and Phil Ortiz, City Councilmember SUBJECT: Installation of Safety Barriers on Interstate 8 RECOMMENDATION:

That the City Council directs staff to prepare a letter to Caltrans, on behalf of the entire City Council, requesting that safety barriers be installed along Interstate 8 between Greenfield Drive and State Route 67.

BACKGROUND:

On an average day, 137,500 vehicles travel along Interstate 8 (I-8) through the City of El Cajon. Between Greenfield Drive and State Route 67 (SR-67), large sections of the interstate are raised, there are narrow shoulders, and in some areas there is a steep embankment adjacent to the shoulder.

Over the past two years, there have been 143 reported vehicle accidents along I-8, between Greenfield Drive and SR-67. Of those accidents, 21 of them involved a vehicle leaving the roadway and ending up traveling down the embankment—that is nearly 15 percent of all accidents. Attached is a map and summary of accidents that occurred along this stretch of I-8.

Freeway accidents many times involve high speeds and result in increased injuries and deaths.

High speeds and a vehicle traveling down an embankment make matters worse and pose a challenge for first responders delivering aid to those injured. To protect motorists and first responders, we recommend that the City request that Caltrans install safety barriers along I-8 between Greenfield Drive and SR-67.

Prepared By: Steve Goble, Deputy Mayor and Phil Ortiz, City Councilmember Reviewed By: N/A
Approved By: N/A
Attachments
I-8 Traffic Accidents

SERVING THE CITIES OF EL CAJON, LA MESA AND LEMON GROVE ISO CLASS 1 DEPARTMENT

El Cajon
100 Civic Center Way
El Cajon, CA 92020
(619) 441-1601
La Mesa
8054 Allison Avenue
La Mesa, CA 91942
(619) 667-1355
Lemon Grove
7853 Central Avenue
Lemon Grove, CA 91945
(619) 825-3835

TRAFFIC ACCIDENT OVERVIEW
I-8 CORRIDOR, BETWEEN SR-67 & GREENFIELD DR

Dates: 1/1/2021 – 12/31/2022
Location: Interstate 8, between SR-67 and Greenfield Drive Daily Traffic: 108,000 - average daily traffic @ Mollison, (CalTrans, Year 2020):

Data Total Westbound Eastbound
Report mentions vehicle leaving roadway 21 17 4
No mention in report of leaving roadway 122 84 38
Total Traffic Incident Responses 143 101 42

Figure 1: Plot Map of GPS Coordinates of Calls

El Cajon City CouncilFebruary 28, 2023

El Cajon City Council
February 28, 2023