HomeMy WebLinkAboutAgenda Packet 2002/11/05 CITY COUNCIL AGENDA
November 5, 2002 4:00 p.m.
Council Chambers
Public Services Building
276 Fourth Avenue, Chula Vista
Ci'IY OF
CHULA VISTA
City Council City Manager
Patty Davis David D. Rowlands, Jr.
Stephen C. Padilla City Attorney
Jerry R. Rindone John M. Kaheny
Mary Salas City Clerk
Shirley A. Horton, Mayor Susan Bigelow
The City Council meets regularly on the first calendar Tuesday at 4:00 p.m.
and on the second, third and fourth calendar Tuesdays at 6:00 p.m.
Regular meetings may be viewed at 7:00 p.m. on Wednesdays on
Cox Cable Channel 24 or Chula Vista Cable Channel 68
AGENDA
November 5, 2002 4:00 P.M.
CALL TO ORDER
ROLL CALL: Councilmembers Davis, Padilla, Rindone, Salas, and Mayor Horton.
PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE
SPECIAL ORDERS OF THE DAY
· INTRODUCTION BY DAN BEINTEMA, NATURE CENTER DIRECTOR, OF THE
EMPLOYEE OF THE MONTH, DAVID DIDONATO, NATURE CENTER
GARDENER
· OATHS OF OFFICE:
John Willet - Safety Commission
Kimberly Appleget - Child Care Commission
· PRESENTATION OF A PROCLAMATION BY MAYOR HORTON TO BILL
JOHNSON, SUE ROOS, AND LEONARD MIRANDA PROCLAIMING
WEDNESDAY, NOVEMBER 6, 2002 AS LAW ENFORCEMENT RECORDS AND
SUPPORT PERSONNEL DAY
· PRESENTATION BY PORT COMMISSIONER HALL OF A STATUS REPORT
REGARDING PORT DISTRICT ISSUES
CONSENT CALENDAR
(Items 1 through 16)
The Council will enact the staff recommendations regarding the following items
listed under the Consent Calendar by one motion, without discussion, unless a
Councilmember, a member of the public, or City staff requests that an item be
removed for discussion. If you wish to speak on one of these items, please fill out
a "Request to Speak"form (available in the lobby) and submit it to the City Clerk
prior to the meeting. Items pulled from the Consent Calendar will be discussed
afier Action Items. Items pulled by the public will be the first items of business.
1. APPROVAL OF MINUTES of October 22, 2002.
Staff recommendation: Council approve the minutes.
2. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING SECTIONS 2.41.040, 2.41.050, AND 2.41.060 OF THE CHULA VISTA
MUNICIPAL CODE RELATING TO THE VOTING MEMBERSHIP OF THE
NATURI~ CENTER BOARD OF TRUSTEES (SECOND READING AND
ADOPTION)
The recent creation of the advisory board for the Nature Center set the voting
membership at nine members, based on the former membership of the Bayfront
Conservancy Trust. This amendment sets the voting membership at a minimum of five,
with a maximum of nine, in order to afford the Council greater flexibility in making
appointments and still meet quorum requirements for conducting commission business.
(Nature Center Director)
Staff recommendation: Council place the ordinance on second reading for adoption.
3. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING CHAPTERS 19.04 ANT) 19.48 OF THE CHULA VISTA MUNICIPAL
CODE (SECOND READING AND ADOPTION)
The proposed Municipal Code amendments would allow private, non-profit, recreational
facilities as a conditionally permitted use in the designated community purpose facilities
land use designation, amend the interim uses section to modify the criteria to allow
interim uses, and establish a new definition of"community purpose facilities." Director
of Planning and Building)
Staffrecomanendation: Council place the ordinance on second reading for adoption.
4. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING ORDINANCE 2582 TO ADD THE POGGI CANYON BASIN SEWER
INTERCEPTOR AS ONE OF THE FACILITIES FINANCED BY THE TELEGRAPH
CANYON SEWER PUMPED FLOWS DEVELOPMENT IMPACT FEE AND TO
CHANGE THE NAME TO PUMPED SEWER DEVELOPMENT IMPACT FEE
(SECOND READING AND ADOPTION)
Adoption of the proposed ordinance approves the modification of the Telegraph Canyon
sewer pumped flows development impact fee fund to include the addition of the Poggi
Canyon Basin sewer interceptor to the list of approved facilities in Ordinance No. 2582.
These modifications would allow the City to use either the Telegraph Canyon trunk
sewer or the Poggi Canyon Basin sewer interceptor to provide sewer service to
developments within the pumped flow basin until the completion of the Salt Creek
gravity sewer interceptor. They would also result in the decrease of the development
impact fee from $560 to $180 per equivalent dwelling unit. Furthermore, Council is also
being asked to change the name of the development impact fee from "Telegraph Canyon
Sewer Pumped Flows Development Impact Fee" to "Pumped Sewer Development Impact
Fee." (Director of Public Works)
Staffrecommendation: Council place the ordinance on second reading for adoption.
5. CONSIDERATION OF AMENDMENTS TO THE PUBLIC WORKS DEPARTMENT
BUDGET ADDING TWO STORM WATER COMPLIANCE INSPECTOR
POSITIONS, ONE SENIOR MAINTENANCE WORKER AND ONE NEW
MAINTENANCE WORKER I/1I FOR THE STORM WATER PROGRAM (Director of
Public Works)
Staff recommendation: Council continue this item to the Regular Meeting of November
12, 2002.
Page 2 - Council Agenda 11/05/02
6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTiNG BIDS AND AWARDING CONTRACT FOR THE CORRUGATED
METAL PiPE (CMP) REHABILITATION ALONG FIFTH AVENUE, BETWEEN
WESTBY STREET AND THE TELEGRAPH CANYON CHANNEL (PROJECT DR-
137) TO NATIONAL LINER WEST, A DIVISION OF ZZ LINER, INC., IN THE
AMOUNT OF $109,725, AND TRANSFERRING $39,000 FROM CAPITAL
IMPROVEMENT PROGRAM PROJECT NO. DR~ 152 TO CAPITAL
IMPROVEMENT PROGRAM PROJECT NO. DR-137 (4/5THS VOTE REQUIRED)
On September 4, 2000, the Director of Public Works received sealed bids for this project.
The project provides for the rehabilitation of existing corrugated metal pipe along Fifth
Avenue, between Westby Street and the Telegraph Canyon channel. (Director of Public
Works)
Staff recommendation: Council adopt the resolution.
7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTING BIDS AND AWARDING CONTRACT FOR SIDEWALK
REPLACEMENT AT VARIOUS LOCATIONS IN THE CITY (PROJECT JY-065I)
AND AUTHORIZING STAFF TO INCREASE THE VALUE OF THE CONTRACT
TO EXPEND ALL AVAILABLE FUNDS FOR THIS PROJECT
On September 11, 2002, the Director of Public Works received sealed bids for this
project. The work consists of the removal and replacement of displaced curbs, gutters,
sidewalks, and driveways, along with all labor, material, equipment, and transportation
necessary for the project. (Director of Public Works)
Staff recommendation: Council adopt the resolution.
8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE AGREEMENT BY AND BETWEEN THE CITY OF CHULA
VISTA AND THE CITY OF SAN DIEGO FOR THE INTERIM USE OF THE OTAY
VALLEY TRUNK SEWER (OVTS) LINE, AND AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT
Currently, the sewage generated by the developments within the Salt Creek sewer basin is
being pumped into the Telegraph Canyon sewer basin (Telegraph Canyon trunk sewer),
pending the completion of the Salt Creek gravity sewer interceptor by the summer of
2003. Recent flow metering and engineering studies have indicated that the Telegraph
Canyon trunk sewer may be reaching threshold capacity and may not be able to
accommodate additional pumped sewage flows prior to the completion of the Salt Creek
project. The City has negotiated with the City of San Diego to temporarily divert 2.75
million gallons per day of sewage into its Otay Valley tnmk sewer for a period of
approximately ten months, begim~ing November 1, 2002 and ending August 31, 2003.
(Director of Public Works)
Staff recommendation: Council adopt the resolution.
Page 3 - Council Agenda 11/05/02
9. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING THE FISCAL YEAR 2003 LIBRARY DEPARTMENT BUDGET BY
APPROPRIATING UNANTICIPATED DONATION AND GRANT REVENUE IN
THE AMOUNT OF $2,550 FOR THE LITERACY PROGRAM, AND
UNANTICIPATED REVENUE OF $835 FOR THE STRETCH PROGRAM (4/5THS
VOTE REQUIRED)
The Chula Vista Literacy Team recently received two donations of $2,250 and a grant of
$300 for the literacy program. In addition, a number of the STRETCH and DASH staff
completed a First Aid/CPR training class, paying $835 for the class. The appropriation is
requested to pay for additional literacy services and to offset the cost of the unfunded
First Aid/CPR class. (Deputy City Manager Palmer)
Staff recommendation: Council adopt the resolution.
10. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING CLOSURE OF A PORTION OF CENTER STREET, BETWEEN THIRD
AVENUE AND DEL MAR AVENUE FROM 3:00 P.M. TO 8:30 P.M. ON
SATURDAY, DECEMBER 7, 2002, AND WAIVING BUS1NESS LICENSE FEES
FOR THE DOWNTOWN BUSINESS ASSOCIATION AND VENDORS FOR THE
PURPOSE OF HOLDING A CRAFT FAIR DURING THE STARLIGHT YULE
PARADE, WITH CONDITIONS
The Chula Vista Downtown Business Association (DBA) will host the 40th annual
Starlight Yule Parade on Third Avenue. This event is the community's primary holiday
celebration and is hosted immediately following the Mayor's annual holiday tree-lighting
ceremony. In conjunction with this year's parade, the DBA is plalming a craft fair on
Center Street. In order to facilitate the fair, the City is being asked to authorize the street
closure. (Director of Community Development)
Staffrecommendation: Council adopt the resolution.
11. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A MASTER LICENSE AGREEMENT WITH CINGULAR WIRELESS
PCS, INC., FOR THE INSTALLATION AND O?ERATION OF UP TO 25 PCS OR
SUBSTANTIALLY SIMILAR FACILITIES ON CITY-OWNED PROPERTY
SUBJECT TO ALL NECESSARY APPROVALS, FOR A PERIOD OF FIVE YEARS
WITH AN OPTION TO RENEW FOR UP TO FIVE ADDITIONAL FWE-YEAR
TERMS
Cingular Wireless PCS, Inc. is a mobile phone service provider that is expanding its
coverage in the Southbay region and is interested in locating facilities on City-owned
properties. The proposed resolution approves a Master License Agreement with Cingular
to allow Cingular to install and operate up to 25 wireless telephone facilities each in the
City for a period of five years, with an option to renew up to five additional five-year
terms. (Special Operations Manager)
Staff recommendation: Council adopt the resolution.
Page 4 - Council Agenda 11/05/02
12. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE PURCHASE AGREEMENT WITH OTAY PROJECT, LP FOR
THE REAL PROPERTY NEEDED FOR FIRE STATION NO. SEVEN, LOCATED AT
THE SOUTHEAST CORNER OF LA MEDIA ROAD AND STREET A IN VILLAGE
TWO OF OTAY RANCH IN EASTERN CHULA VISTA, AND AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT (CONTINUED FROM THE MEETING
OF OCTOBER 22, 2002)
The City Council previously approved Capital Improvement Program project no. PS-150
which involves the construction of a completed and fully functional 12,000 square-foot
four-bay fire station, including the facilities and site-work required to provide fire service
to the eastern territories of the City. The design phase of the project has already
commenced. The resolution authorizes the purchase of the real property for Fire Station
No. Seven. (Director of Building and Park Construction)
Staff recommendation: Council adopt the resolution.
13 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
CERTIFYING THE QUALIFIED LIST OF DESIGN-BUILD ENTITIES (FIRE
STATIONS) PURSUANT TO MUNICIPAL CODE SECTION 2.57.030(A)(3)
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTING THE CITY MANAGER'S CERTIFICATION OF THE
QUALIFICATIONS OF THE DESIGN-BUILD TEAM, APPROVING A DESIGN-
BUILD AGREEMENT WITH ERICKSON-HALL CONSTRUCTION COMPANY FOR
THE PROVISION OF SERVICES REQUIRED TO DESIGN AND CONSTRUCT A
2,300 SQUARE-FOOT ADDITION TO THE EXISTING FIRE STATION NO. FOUR,
APPROPRIATING FROM THE GENERAL FUND AND FROM THE PUBLIC
FACILITIES DEVELOPMENT IMPACT FEE FUND TO CAPITAL IMPROVEMENT
PROJECT FOR FIRE STATION NO. FOUR, AND AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT (4/5THS VOTE REQUIRED)
During the Fiscal Year 2002/2003 Capital Improvement Program budget process, staff
informed Council that it was developing a plan for the design and construction ora 2,300
square-foot addition to the existing Fire Station No. Four that serves as the fire training
facility, located at the northeast comer of East H Street and Paseo Ranchero in Rancho
Del Rey. The project is ready to begin the design phase. The first resolution will certify
the list of Design-Build entities qualified to provide fire station-specific services to the
City. The second resolution awards to Erickson-Hall Construction a Design-Build
Agreement for this project and appropriates funds for the design phase. (Director of
Building and Park Construction)
Staff recommendation: Council adopt the resolutions.
Page 5 ~ Cotmcil Agenda 11/05/02
14. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTING THE CITY MANAGER'S CERTIFICATION OF THE
QUALIFICATIONS OF THE DESIGN-BUILD TEAM, APPROVING A DESIGN-
BUILD AGREEMENT WITH ERICKSON-HALL CONSTRUCTION COMPANY FOR
THE PROVISION OF SERVICES REQUIRED TO DESIGN AND CONSTRUCT A
4,000 SQUARE-FOOT SINGLE-BAY OUTFIT AND STORAGE BUILDING AT FIRE
STATION NO. TWO, APPROPRIATING FROM THE GENERAL FUND AND FROM
THE PUBLIC FACILITIES DEVELOPMENT IMPACT FEE FUND TO THE NEWLY-
CREATED CAPITAL IMPROVEMENT PROJECT FOR FIRE STATION NO. TWO,
AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT (4/5THS
VOTE REQUIRED)
During the Fiscal Year 2002/2003 Capital Improvement Program budget process, staff
informed Council that it was developing plans for the design and construction of a 4,000
square-foot single-bay outfit and storage building at Fire Station No. Two in the Hilltop
area. The project is ready to begin the design phase. The resolution awards to Erickson-
Hall Construction a Design-Build agreement for this project and appropriates funds to
undertake the project. (Director of Building and Park Construction)
Staff recommendation: Council adopt the resolution.
15. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING THE FISCAL YEAR 2003 RECREATION DEPARTMENT BUDGET
BY APPROPRIATING $28,453 FROM THE AVAILABLE FUND BALANCE OF THE
GENERAL FUND FOR THE PURCHASE OF AN UPGRADED CLASS, ACTIVITY,
AND FACILITY REGISTRATION SYSTEM FOR USE BY THE RECREATION AND
PUBLIC WORKS DEPARTMENTS (4/5THS VOTE REQUIRED)
The Recreation Department and Public Works Department are currently utilizing a
computerized class, activity, and facility registration program that has been in use for
more than ten years. An appropriation of funds is requested in order to upgrade the
software to a faster and more efficient system that will enhance customer service, allow
participants to register for classes and activities online, and reduce staff time due to
increased efficiency. (Director of Recreation, Director of Public Works, Director of
Management and Information Services)
Staff recommendation: Council adopt the resolution.
16. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING ONE INTEL ANALYST AND AMENDING THE FISCAL YEAR
2002/2003 BUDGET FOR SALARY, BENEFITS AND RELATED EXPENSES, AND
APPROPRIATING UNANTICIPATED REVENUE FROM THE CHULA VISTA
ELEMENTARY SCHOOL DISTRICT (4/5THS VOTE REQUIRED)
Page 6 - Council Agenda 11/05/02
In March 2002, the Police Department and the Chula Vista Elementary School District
applied for funding for a School Community Partnership Program to address bullying in
three elementary schools. In June of 2002, the Police Department and School District
were notified by the California Department of Education that the application was
approved. The grant award is in the amount of $325,000, of which $122,036 wilt pay for
a Project Coordinator/School Crime Analyst to oversee the implementation of the
bullying program and $7,700 will pay for expenses incurred for supplies required to
implement the project. (Chief of Police)
Staffrecommendation: Council adopt the resolution.
ORAL COMMUNICATIONS
Persons speal~'ng during Oral Communications may address the Council on any
subject matter within the Council's jurisdiction that is not listed as an item on the
agenda. State law generally prohibits the Council from taking action on any issue
not included on the agenda, but, if appropriate, the Council may schedule the
topic for future discussion or refer the matter to staff Comments are limited to
three minutes.
PUBLIC HEARINGS
The following items have been advertised as public hearings as required by law.
If you wish to speak on any item, please fill out a "Request to Speak" form
(available in the lobby) and submit it to the City Clerk prior to the meeting.
17. CONSIDERATION OF ACCEPTANCE AND APPROPRIATION OF LOCAL LAW
ENFORCEMENT BLOCK GRANT FUNDS
The Police Department has recently received notice of a Local Law Enforcement Block
Grant award in the amount of $212,310 from the Bureau of Justice Assistance. These
funds were allocated to the Police Department based on a three-year average of Part I
Violent Crimes. Part I Violent Crimes are murder and non-negligent manslaughters,
forcible rape, robbery, and aggravated assaults as reported by the FBI. Acceptance and
appropriation of these funds'requires a public hearing per stipulations of the Local Law
Enforcement Block Grant. (Chief of Police)
Staff recommendation: Council conduct the public hearing and adopt the following
resolution:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTING $212,310 FROM THE 2002 LOCAL LAW ENFORCEMENT
BLOCK GRANT AND AMENDING THE FISCAL YEAR 2002/2003 POLICE
BUDGET, APPROPRIATING $49,580 FOR POLICE TECHNOLOGY, $33,968
FOR CRIME LAB EQUIPMENT, $36,300 FOR OFFICER SAFETY
EQUIPMENT, $50,000 TO SUPPORT THE SCHOOL COMMUNITY
POLICING PARTNERSHIP, $42,462 TO SUPPORT THE SOUTH BAY
DRUG COURT, AND AUTHORIZING THE CHIEF OF POLICE TO UTILIZE
(REPROGRAM) SAVINGS RESULTING FROM THE COMPETITIVE
PROCUREMENT PROCESS FOR ADDITIONAL UNSPECIFIED OFFICER
SAFETY EQUIPMENT AND SUPPLIES (4/5THS VOTE REQUIRED)
Page 7 - Council Agenda 11/05/02
18. CONSIDERATION OF THE FORMATION OF COMMUNITY FACILITIES
DISTRICT NO. 08M (VILLAGE SIX MCMILL1N OTAY RANCH AND OTAY
RANCH COMPANY -- CONTINUED FROM OCTOBER 22, 2002)
Adoption of the following resolutions and ordinance concludes the formal proceedings to
establish Community Facilities District No. 08M. This district will fund the perpetual
operation and maintenance of slopes, medians and parkways and storm water treatment
facilities associated with Village Six - McMillin Otay Ranch and Otay Ranch Company.
The City has retained the services of MuniFinancial as special tax consultant and Best
Best and Krieger LLP as legal counsel to provide assistance during the proceedings.
(Director o f Public Works)
Staff recomanendation: Council conduct the public heating, adopt the following
resolutions and place the ordinance on first reading:
A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
FORMING AND ESTABLISHING COMMUNITY FACILITIES DISTRICT
NO. 08M (VILLAGE SIX - MCMILLIN OTAY RANCH AND OTAY RANCH
COMPANY) AND AUTHORIZING SUBMITTAL OF THE LEVY OF
SPECIAL TAXES TO THE QUALIFIED ELECTORS
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF
COMMUNITY FACILITIES DISTRICT NO. 08M (VILLAGE SIX -
MCMILLIN OTAY RANCH AND OTAY RANCH COMPANY) DECLARING
THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY
FACILITIES DISTRICT
C. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF
COMMUNITY FACILITIES DISTRICT NO. 08M (VILLAGE SIX -
MCMILLIN OTAY RANCH AND OTAY RANCH COMPANY)
AUTHORIZING THE LEVY OF A SPECIAL TAX WITHIN EACH
IMPROVEMENT AREA OF SUCH COMMUNITY FACILITIES DISTRICT
ITEMS PULLED FROM THE CONSENT CALENDAR
OTHER BUSINESS
19. CITY MANAGER'S REPORTS
A. Scheduling of meetings.
20. MAYOR'S REPORTS
A. Ratification of appointments to the Nature Center Board of Trustees:
Susan Fuller (Representative of Nature Center Volunteers)
Cheryl Cox (Chula Vista At-Large Member)
Herbert Young (Representative of Environmental Community)
Margery Stinson (Representative of Educational Community)
B. Ratification of appointment to the Cultural Arts Commission: Diannah Smith
Page 8 - Council Agenda 11/05/02
21. COUNCIL COMMENTS
A. Jerry Rindone: Consideration of two options: Option 1 - meet in Closed Session
tonight to discuss procedures for evaluations of City Attorney, City Clerk, and
City Manager, pursuant to California Government Code Section 54957, and then
meet in Closed Session Monday, November 11, 2002 at 4:00 p.m. for evaluations
of City Attorney, City Clerk, and City Manager. Option 2 - meet in Closed
Session Monday, November 11, 2002 at 4:00 p.m. to discuss procedures for
evaluations of City Attorney, City Clerk, and City Manager, and then meet in
Closed Session Tuesday, November 12, 2002 for evaluations of City Attorney,
City Clerk, and City Manager.
ADJOURNMENT to a Regular Meeting of November 12, 2002, at 6:00 p.m. in the Cotmcil
Chambers.
Page 9 - Council Agenda 11/05/02
ORDiNANCE NO. tk~~ ~k~)O~'~\O~
O~ANCE OF THE CITY CO~CIL ~' CITY OF
CHULA VISTA ~ENDING SECTIONS 2.41.040, 2.41.050 ~d
2.41.060 OF THE CHULA VISTA M~ICIP~ CODE
~LAT~G TO THE VOT~G ME~ERSH~ OF THE
NAT~ CENTER BO~ OF TRUSTEES
WHEREAS, The City Council adopted Ordinance No. 2852 establishing Section 2.41 of
the Municipal Code and creating the Nature Center Board of Trustees; and
WHEREAS, to provide greater flexibility in the membership appointment process and to
address concerns by some outside agencies involved with the Board of Trustees, Staff has
recommended modifying the Code related to Voting Membership.
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain:
SECTION I: That Section 2.41.040 of the Chula Vista Municipal Code is hereby amended to
read as follows:
2.41.040 Membership.
A. Number of Members. The Board of Trustees shall consist of a minimum of 5 and a
max?m~ o_f.9 voting members, one staff ex-officio member and such general ex-officio
members of the Board of Trustees ~ts the City Council shall, from time to time, appoint.
B. Designation of Members.
1. Voting Members. The voting O-members shall be appointed by the City Council
in accordance with the provisions of Section 600, et seq., of the Charter.
2. Staff Ex-Officio Member. The one staff ex-officio member shall be the City
Manager or his designated representative, who shall not be required to be a qualified elector of
the City, and who shall have no vote ("staff ex-officio member").
3. General Ex-Officio Members. The City Council, or its designee, may appoint
such additional ex-officio members of the Board of Tmstees as they deem appropriate. Any such
appointed ex-officio members shall have no vote ("general ex-officio member").
SECTION II: That Section 2.41.050 of the Chula Vista Municipal Code is hereby amended to
read as follows:
2.41.050 Term of Office.
A. Term of Office - All Classes of Members.
1. Post-Initial Terms. Except as otherwise provided in this subsection (A), the term
of office of all members, and all classes of members, of said Board of Trustees shall be for a
nominal period of four years, and shall terminate on June 30th of the fourth year of their term,
unless they shall otherwise sooner resign, die, become disqualified or incompetent to hold office.
Ordinance
Page 2
2. Initial Terms of Voting Members. Notwithstanding subsection (A)(1) of this
section, the initial terms of voting members shall commence upon appointment and shall
conclude for l voting member on June 30, 20023; for 2 voting members on June 30;n2~0~03~,; and
for 3-voting members on June 30, 20045, ~nd ~F~r 3 ;'~ting members en Juxne 30 ..... ,7anl~
they shall otherwise sooner resign, die, become disqualified or incompetent to hold office.
a. Appointment to Initial Terms by Lot. Appointment of the initial voting
members as to the initial terms shall be detemfined by lot, the fairness of
which method shall be approved by the Mayor in advance if agreement as
to method cannot be reached among the voting members.
3. Staff-Ex-Officio Member. The term of the staff ex-officio members shall be
indefinite.
4. General Ex-Officio Member. The temi of general ex-officio members shall be for
a period of four years from the time of appointment.
5. Holdover Office. Notwithstanding the end of any member's initial term or post-
initial term as herein provided, a member, other than the staff ex-officio members, shall be
permitted to continue to exemise the privileges of his or her former office for not longer than six
months after the end of the term until the office to which the member was appointed is filled by
reappointment or by the appointment of a qualified successor.
6. Vacancies. Notwithstanding the term of office to which a member is appointed,
said office shall be deemed vacant upon any of the following events ("event of vacancy"):
a. The death or disability of said member that renders said member incapable
of performing the duties of his office.
b. The member's conviction of a felony or crime involving moral turpitude.
c. The member's absence from three regular consecutive meetings of the
Board of Trustees unless excused by majority vote of the Board of
Trustees, expressed in its official minutes.
d. The member has submitted a resignation, which resignation has been
accepted by the City Council.
e. The membership has been terminated by four affirmative votes of the City
Council.
Upon the occurrence of an event of vacancy as hereinabove listed, the City Council shall
so declare the office to be vacant, and shall expeditiously take such steps as are necessary to fill
said vacancy.
B. Number of Terms.
Ordinance
Page 3
1. Voting Members.
a. Two-Term Limit. No voting member shall be appointed to more than two
. terms except as herein provided ("two-term limit").
b. Unexpired Term Exception. Notwithstanding the two4erm limit, a person
appointed to the Board of Trustees as a voting member to fill the
unexpired term of an office of a voting member which has become vacant
("unexpired term"), which has less than two years remaining on said
unexpired term, may be appointed to two terms in addition to their
unexpired term. A voting member who currently occupies an office may
not be reappointed to fill the unexpired term of another office which has
become vacant.
c. Initial Term Exception. Notwithstanding the two-term limit, a person
appointed to an initial term of two or less years may be appointed at the
natural expiration of their initial term to two full four-year terms in
addition to their initial term. A voting member who occupies an office
under an initial term may not be appointed to fill the unexpired term of
another office which has become vacant.
d. Any voting member may be reappointed to serve on the Board of Trustees
after two successive years of not serving on the Board of Trustees in any
office or membership capacity voting or staff ex-officio.
2. Staff Ex-Officio Member. The staff ex-officio members shall serve at the
pleasure of the City Council.
3. General Ex-Officio Members. A general ex-officio member may be reappointed
without limitation as to number of terms.
SECTION Ili: That Section 2.41.060 of the Chula Vista Municipal Code is hereby amended to
read as follows:
2.41.060 Operation of Board of Trnstees.
A. Frequency, Time and Place of Regular meetings. The Board of Trustees shall hold at
least on regular meeting each month commencing at 4:00 p.m. on the first Wednesday thereof, or
at such other day and time that it shall designate by written resolution, a copy of which shall be
forwarded to the City Council and entered in the minutes of the meeting thereof, at the Chula
Vista Nature Center, Chula Vista, or at such other place that it shall designate by written
resolution, a copy of which shall be forwarded to the City Council and entered in the minutes of
the meeting thereof, or as may be posted upon the door of Nature Center at least 30 minutes in
advance of the meeting.
B. Officers of the Board of Trustees. The Board of Trustees shall select a chair and a vice-
chair from among its voting members. The chair and vice-chair so selected shall serve for a
period of one year.
Ordinance
Page 4
C. Special meetings. The Board of Trustees may meet specially at such other times, days
and places as it shall establish by majority vote, or at such time as the chair thereof may call, or
at such times as a majority of the members thereof may call a meeting.
D. Conduct of Meetings. The meetings of the Board of Trustees, and notice thereof, shall be
governed by the same rules and regulations by which the City Council is bound in the conduct of
public meetings.
E. Quorum. ~A.___m__ajorit_v of the voting members ._appointed at the time of the meeting~shall
constitute a quorum for the transaction of business.
F. Resolutions. A majority of the votes cast, but not less than a majority of the quorum,
shall be required for the passage of any resolution of the committee.
G. Reports and Recommendations. All reports and recommendations shall be made in
writing.
H. Staff Support. All officers and department heads shall cooperate with, and render
reasonable assistance to, the Board of Trustees. The City Manager may make available staff and
clerical support to the Board of Trustees to fulfill its functions and duties, provided such staff
and clerical support is available.
I. Rules and Regulations. The Board of Trustees may make such rules and regulations not
inconsistent with the provisions of this chapter.
J. Gifts and Grants. The Board of Trustees may, subject to the approval of the City
Council, accept gifts and grants from any source to assist it in the performance of its functions.
K. By-Laws. The Board of Trustees may pass such other and further rules and regulations
regarding the internal affairs of the Board of Trustees as are not inconsistent with the terms and
conditions of this chapter.
SECTION IV: This ordinance shall take effect and be in full force on the thirtieth day from and
after its second reading and adoption.
Prepared by Approved as to form by
David D. Rowlands, Jr.
City Manager
ORDINANCE SO. %rccO 'tr) gt 'r)\t 6
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CHULA VISTA AMENDING CHAPTERS 19.04 AND 19.48
OF THE CHULA VISTA MUNICIPAL CODE
I. RECITALS
A. Application for Discretionary Approval
WHEREAS, a duly verified application for an amendment to the Chula Vista
Municipal Code was filed with the Planning and Building Department of the City of
Chula Vista on April 9, 2002 as sponsored by the City of Chula Vista ("Applicant");
and,
WHEREAS, said application requests certain amendments to Chapter 19.04,
Definitions, and 19.48, P-C Planned Conmmnity Zone; specifically modification of
Chapter 19.04, Section 19.04.055 to modify "conununity purpose facility" definition,
modification of Chapter 19.48, P-C Planned Community Zone, Section 19.48.025 to
and add language related homeowners associations; modify provisions for interim
uses and add required findings for recreational facilities, and modification to Section
19.48.040 to modify the requirements for allowing recreational uses within CFP land
use district ("Zoning Ordinance Amendment"); and,
B. Environmental Determination
WHEREAS, the Environmental Review Coordinator has determined that the activity
is not a "Project" as defined under Section 15378 of the State CEQZA Guidelines; therefore,
pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to
CEQAi and
C. Planning Commission Record of Application
WHEREAS, the Planning Commission held an advertised public hearing on said
Project on, and voted to recommend that the City Council approve the Project, based upon
the findings listed below.
D. City Council Record of Applications
WHEREAS, a duly called and notice public hearing was held before the City Council
of the City of Chula Vista on October 8, 2002, on the Discretionary Approval
Application, received the recommendations of the Planning Commission, and heard
public testimony with regard to same; and
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby find,
determine and resolve as follows:
Il. PLANNING COMMISSION RECORD
The proceedings and all evidence introduced before the Planning Commission at their public
hearing on this project held on September 25, 2002, and the minutes and resolutions resulting
therefrom, are hereby incorporated into the record of this proceeding.
III. CERTIFICATION OF COMPLIANCE WITH CEQA
The Environmental Review Coordinator has determined that the activity is not a "Project" as
defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section
15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA.
IV. FINDINGS
The City Council hereby finds that the proposed amendments to the Chula Vista Municipal
Code will address concerns of the development community concerning hardships expressed by the
development corr~munity regarding the requirements for providing for CFP acreage in the master
planned cormnunities of Eastern Chula Vista by allowing certain HOA facilities to qualify for CFP
credit as well as reduce the amount of time before which a developer may request an interim use on a
CFP designated parcel. The proposed amendments are consistent with the City of Chula Vista
General Plan and public necessity, convenience, general welfare, and good zoning practice support
the amendments.
v. APPROVAL
Based 9n the above, the City Council hereby approves the proposed amendments to the
Chula Vista Municipal Code, specifically to Chapter 19.04 and Chapter 19.48 as depicted in Exhibit
"A". attached hereto.
This ordinance shall take effect and be in full force and effect on the thirtieth day from and
after its adoption.
Presented by Approved as to form by
Robert A. Leiter Job~ ~. ~aheny
Plmming & Building Director City Attorney
H:\PLANN1NG\JEFF~2002 Ord PC CommunityZone.doc
Oral,NANCY; NO.__ %tc,9075 0
AN URGENCY ORDINANCE OF THE CITY OF
CHULA VISTA, CALIFORNIA AMENDING
ORDINANCE 2582 TO ADD THE POGGI CANYON
BASIN SEWER INTERCEPTOR AS ONE OF THE
FACILITIES FINANCED BY THE TELEGRAPH
CANYON SEWER PUMPED FLOWS DEVELOPMENT
IMPACT FEE AND TO CHANGE THE NAME TO
PUMPED SEWER DEVELOPMENT IMPACT FEE
WHEREAS, the City Council is placing an Ordinance on its first reading which
will change the name of the Telegraph Canyon Sewer Pumped Flows Development
Impact Fee to Pumped Sewer Development Impact Fee and will add the Poggi Canyon
Basin Sewer Interceptor as one of the facilities financed by the development impact fee;
and,
WHEREAS, pursuant to Government Code Section 66017(a), the fees modified
by that Ordinance will not become effective until sixty (60) days after its second reading;
and,
WHEREAS, development in the City located within the Pumped Flow Basin will
be applying for building permits during the interim period before the development impact
fee modification becomes effective; and,
WHEREAS, Government Code Section 66017(b) authorizes the City to adopt an
interim fee as an urgency measure upon making a finding describing the current and
immediate threat to the public health, welfare and safety; and,
WHEREAS, said interim measure will be effective for thirty (30) days and may
be extended twice for additional thirty (30) day periods upon subsequent action by the
City Council; and,
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
project for compliance with the California Environmental Quality Act and has
determined that the project qualifies for a statutory exemption pursuant to Section
15282(1) of the State CEQA Guidelines. Thus, no further environmental review is
necessary; and,
WHEREAS, State Law requires said Urgency Ordinance to be adopted by a four-
fifths vote.
Ordinance
Pag~ 2
NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as
follows:
SECTION 1: Finding of Urgency
That the City Council of the City of Chula Vista finds that it is necessary that its
Telegraph Canyon Sewer Pumped Flows Development Impact Fee be changed to
Pumped Sewer Development Impact Fee and go into effect immediately in order to avoid
sewage spills as a consequence of not having the option to use the Poggi Canyon Basin
Sewer Interceptor to pumped sewage flows. Immediate implementation of this Fee is
necessary due to the current and immediate threat to public safety which could arise from
the pumped flows remaining in the Telegraph Canyon Trunk Sewer beyond the threshold
capacity of the trunk sewer system causing sewage spills and failure of the sewer system.
The City Council finds that the prospect of sewage spills, failure of the sewer system and
concerns about an increased charge to remaining property owners constitutes a current
immediate threat to the public, welfare and safety justifying the immediate imposition of
this Fee.
SECTION 2: That the Approval of Backup Plan set forth in Section 1 of Ordinance
2582, shall be amended to read as follows:
"SECTION 1. Approval of Backup Plan.
The City Council has independently reviewed the proposed
Backup Plan herewith presented, finds that it is fair, reasonable and
equitable to all parties, and herewith adopts same in the form on
file with the City Clerk, and on file in the Office of the City
Engineer.
Al~so, the City_ Council has independently reviewed the "2007~
Pumped Sewer Development Impact Fee Engineering Study",
herewith presented, finds that it is fair, reasonable and equitable to_'
all parties, and herewith adopts same in the form on file with the
Ci~,v Clerk and on file in the Office of the City Engineer."
SECTION 3: That the list of Facilities set forth in Section 2 of Ordinance 2582, shall be
amended to read as follows:
"SECTION 2: "Facilities"
The facilities which are the subject matter of the fee herein
established are fully described in the .199~3, "Backup Plan" at page
24 thereof, and the locations at which they will be constructed are
more fully described on Plates I through 14 under the section
Ordinance
Page 3
thereof entitled "Improvement Locations"; and in the 2002,
"Pumped Sewer Development Impact Fee Engineering Study",
Figure 6 Poggi Canyon Interceptor Improvements and Table 4,
Poggi Canyon Interceptor Improvements - Required Due to Year
2005 Area of Benefit Pumped Flows, all of which facilities may be
modified by the City Council from time to time by resolution
("Facilities"). The City Council may modify or amend the list of
projects herein considered to be part of the Facilities by written
resolution in order to maintain compliance with the City's Capital
Improvement Program or to reflect changes in land development
and estimated and actual wastewater flow."
SECTION 4: That the Territory to Which Fee is Applicable set forth in Section 3 of
Ordinance 2582, shall be amended to read as follows:
"SECTION 3. Territory to Which Fee Is Applicable.
The area of the City of Chula Vista to which the Fee herein
established shall be applicable is set forth as an Exhibit to the
Backup Plan, entitled "Developments Subject to Pumping
(Pumped Flows Basin), Telegraph Canyon Sewer Basin,
Improvement and Financing Plan Amendment, Incorporating
Pumped Flows," shown as being "Prepared: June 23, 1993" not yet
revised, shall be referred to herein as the "Territory" or
alternatively "Pumped Flows Basin" and is generally described as
that area to the East of the Telegraph Canyon Sewer Basin, within
the Salt Creek and Poggi Canyon Basins. This same area is als~o
shown in the 2002, "Pumped Sewer Development Impact Fee
Engineering Study"."
SECTION 5: That the Purpose set forth in Section 4 of Ordinance 2582, shall be
amended to read as follows:
"SECTION 4. Purpose.
By Ordinance No. 2533, the City Council approved a plan
("Gravity Basin Plan") for the financing and construction of the
sewer-related facilities necessary to serve only the sewage
transmission demands for the EDU's in the Gravity Basin. The
purpose of Ordinance No. 2582 and this ordinance is to provide the
necessary financing to oversize, study and monitor such sewer-
related facilities in the Telegraph Canyon Sewer Gravity Basin, as
defined in Ordinance No. 2533, Section 2, Ten/tory ("Gravity
Basin"); and in the Poggi Canyon Sewer Basin, as defined in the
2002, "Pumped Sewer Development Impact Fee Engineerin~
Ordinance
Page 4
S dye, to accommodate sewage flows pumped ~nto the ~
and Poggi Canyon Gravity Basins from the Pumped Flows Basin."
SECTION 6: That the Determination of Equivalent Dwelling Units set forth in Section 7
of Ordinance 2582, shall be amended to read as follows:
"SECTION 7. Determination of Equivalent Development Units.
Each single-family detached dwelling or single-family attached
dwelling shall be considered one EDU for purposes of this Fee.
Each unit within a multi- family dwelling shall be considered 0.75
EDU. Every other commemial, industrial, non-profit, public or
quasi-public, or other usage shall be charged at a rate calculated in
accordance with Table I of the 2002, "Pumped Sewer
Development Impact Fee Engineering Stud,/" ~
the Eackup P!mn.'"'
SECTION 7: That the Purpose and Use set forth in Section 9 of Ordinance 2582, shall
be amended to read as follows:
"SECTION 9. Purpose and Use of Fee.
The purpose of the Fee is to pay for the planning (including
preparation of the 1993, "Backup Plan" and the 2002, "Pumped
Sewer Development Impact Fee Engineering Study"), design,
s_tudv, construction, repair, maintenance, and/or financing
(including the cost of interest and other financing costs as
appropriate) of the Facilities, or reimbursement to the City or, at
the discretion of the City if approved in advance in writing, other
third parties for advancing costs actually incurred for planning,
designing, constructing, or financing the Facilities."
SECTION 8: That the Amount of Fee; Amendment of Master Fee Schedule set forth in
Section 10 of Ordinance 2582, shall be amended to read as follows:
"SECTION 10. Amount of Fee; Amendment of Master Fee
Schedule.
The Fee shall be calculated at the rate of $180 $5fi0 per EDU.
Chapter XV of the Master Fee Schedule is hereby amended to add
Section B, which shall read as follows:
"B. ~ Telegraph P ...... q ...... D .....,4 Flows
Development Impact Fee.
Ordinance
Page 5
This section is intended to memorialize the key provisions of
Ordinance No. 2547, but said Ordinance governs over the
provisions of the Master Fee Schedule. For example, in the event
of a conflict in interpretation between the Master Fee Schedule and
the Ordinance, or in the event those additional rules applicable to
the imposition of the Fee, the language of the Ordinance governs.
a. Territory to which Fee applicable.
The area of the City of Chula Vista to which the Fee herein
established shall be applicable is set forth as an Exhibit to the
1993, '~Backup Plan", entitled "Developments Subject to Pumping
Pumped Flows Basin", Telegraph Canyon Sewer Basin,
Improvement and Financing Plan Amendment, Incorporating
Pumped Flows", shown as being "Prepared: June 23, 1993" not yet
revised, shall be referred to herein as the "Territory or alternatively
"Pumped Flows Basin" and is generally described as that area to
the East of the Telegraph Canyon Sewer Basin, within the Salt
Creek and Poggi Canyon Basins. This same area is also shown in
the 2002, "Pumped Sewer Development Impact Fee Engineering
_Study"__.
b. Rate per EDU.
The Fee shall be calculated at the rate of $550 $180 per EDU,
which rate shall be adjusted from time to time by the City
Council.
c. EDU calculation
Each single-family detached dwelling or single-family attached
dwelling shall be considered one EDU for purposes of this Fee.
Each unit within a multi-family dwelling shall be considered
0.75 EDU. Every other commercial, industrial, non-profit,
public or quasi-public, or other usage shall be charged at a rate
calculated in accordance with Table 1 of the 2002, "Pumped
Sewer Development Impact Fee Engineering Study" Figure-5,,
d. When Payable.
The Fee shall be paid in cash not later than immediately prior
to the issuance of a building permit, except that a Letter of
Ordinance
Page 6
Credit Procedure is permitted for this Fee in the adopting
Ordinance, as same may, from time to time, be amended.
The City Council intends to review the amount of the Fee annually
or from time to time. The City Council may, at such reviews,
adjust the amount of this Fee as necessary to assure construction
and operation of the Facilities, the reasons for which adjustments
may include, but are limited to, the following: changes in the costs
of the Facilities as may be reflected by such index as the Council
deems appropriate, such as the Engineering-News Record
Construction Index; changes in the type, size, location or cost of
the Facilities to be financed by the Fee; changes in land use on
approved tentative maps or Specific Plan Amendments; other
sound engineering, financing and planning information.
Adjustments to the above Fee may be made by resolution
amending the Master Fee Schedule."
SECTION 9: That the Authority for Accounting and Expenditures set forth in Section
11 of Ordinance 2582, shall be amended to read as follows:
"SECTION 11. Authority for Accounting and Expenditures.
_The Telegraph Canyon Sewer Basin Pumped Flows Development
Impact Fee Fund (TCSBPF DIF) will be henceforth referred to as
Pumped Sewer Development Impact Fee (PS DIF). The proceeds
collected from the imposition of the Fee £PS DIF) shall be
deposited into a public facility ' ,,To~ ..... h r, ......
financtng fund ( .... ~.~. .....~ ~n
q ...... ~..o;. c,,,m,.~.,4 ['1 ..... r',~.,,..1 ..... + [~"'~'+ ~" "Pumped
Sewer Development Impact Fee Fund" or alternatively herein
"Fund" "Ttmq [~D
or ..... F PS DIF Fund") ..,h~, i,. h~,,, created and
such proceeds shall be expended only for the purposes set forth in
this ordinance.
The Director of Finance is authorized to establish various accounts
within the Fund for the Facilities identified in this ordinance and to
periodically make expenditures from the Fund for the purposes set
forth herein in accordance with the facilities phasing plan or capital
improvement plan adopted by the City Council."
SECTION 10: That the Findings set forth in Section 13 of Ordinance 2582, shall be
amended to read as follows:
"SECTION 13. Findings.
Ordinance
Page 7
The City Council finds that collection of the Fees established by
this ordinance at the time of the building permit is necessary to
ensure that funds will be available for the construction of facilities
concurrent with the need for these facilities and to ensure certainty
in the capital facilities budgeting for growth impacted public
facilities.
The City Council finds that developers of land within the City
should be required to mitigate the burden created by development
through the construction or improvement of sewer facilities within
the boundaries of the development and either the construction or
improvement of sewer facilities outside the boundaries of the
development which are needed to provide service to the
development in accordance with City standards or the payment ora
fee to finance a development's appropriate portion of the total cost
of the sewer facilities; and,
The City Council finds that the legislative findings and
determinations set forth in Ordinance 2582 continue to be true and
correct; and,
The City Council finds, after consideration of the evidence
presented to it, including the 2002, Pumped Sewer Development
Impact Fee Engineering Study, prepared by PBS&J, that the
inclusion of the Poggi Canyon Basin Sewer Interceptor as one of
the facilities to be financed by the development impact fee and the
change of the Telegraph Canyon Sewer Pumped Flows
Development Impact Fee to Pumped Sewer Development Impact
Fee are necessary in order to assure adequate sewer service to the
Pumped _Flow Basin; and,
The City Council finds, based on the evidence presented at the
meeting and the various reports and information received by the
City Council in the ordinary course of its business, that the
imposition of the Pumped Sewer Development Impact Fee on all
development in the Pumped Flow Basin for which building permits
have not been issued is necessary in order to protect the public
health, safety and welfare; and,
The City Council finds that the amount of the amended fees levied
by this Ordinance does not exceed the estimated cost of providing
the sewer service to the developments within the Pumped Flow
Basin; and,
Ordinance
Page 8
The City Council finds that it is appropriate to re-evaluate the
development impact fee to reflect the findings of the 2002,
Pumped Sewer Development Impact Fee Engineering Study and
the inclusion of the Poggi Canyon Basin Sewer Interceptor as
another alternative to diversion of the pumped flows from the
pumped Flow Basin; and_,
The City Council finds it is necessary to ensure the option to
pumped flows to the Poggi Canyon Basin Sewer Interceptor before
the threshold capacity limits are exceeded in the Telegraph Canyon
Trunk Sewer and to ensure the timely pawnent to adequately fund
ongoing and future sewer improvements, flow monitoring and
studies required in the Telegraph Canyon Trunk Sewer and Po~gi
Canyon Basin Sewer Interceptor triggered by the pumped sewer
flow~_s."
SECTION 11: That the Mandatory Oversizing of Facility; Duty to Tender
Reimbursement Offer set forth in Section 15 of Ordinance 2582, shall be amended to
read as follows:
"SECTION 15. Mandatory Oversizing of Facility; Duty to Tender
Reimbursement Offer.
Whenever a developer of a development project in the Territory of
the Pumped Flows Basin is required as a condition of approval of
an entitlement (e.g., General Plan Amendment, Pre-zoning,
General Development Plan, SPA Plan, etc.) to cause a portion of
the sewer system which is the subject matter of a Facilities
enhancement planned for improvement' under the Gravity Basin
Plan to be oversized under the Backup Plan 2002 "Pumped Sewer
Development Impact Fee Engineering Study", the City may
require the developer to install the Facilities according to design
specifications approved by the City, that being with the
supplemental size or capacity in order to accommodate estimated
ultimate flow as indicated in the Basin Plan and subsequent
amendments. If such a requirement is imposed, the City shall first
grant credits against the developer's obligation to pay the Fee, and,
as to any excess, offer to reimburse the developer from the Fund
either in cash or over time as Fees are collected, at the option of
the City, for costs incurred by the developer for the design and
construction of the Facility not to exceed the estimated cost of that
particular Facility as included in the calculation and updating of
the Fee, and in an amount agreed to in advance of their expenditure
in writing by the City. The City may update the Fee calculation, as
City deems appropriate prior to making such offer. This duty to
Ordinance
Page 10
CEQA Guidelines Section 15273 15282 (1)."
SECTION 15: Expiration of this Ordinance.
This Ordinance shall be of no further force and effect thirty (30) days after its adoption.
SECTION 16: Time Limit for Protest and Judicial Action.
Any judicial action or proceeding to attack, review, set aside, void or annul this
Ordinance shall be brought with the time period as established by law.
In accordance with Government Code Section 66020(d)(1), the ninety-day approval
period in which parties may protest begins upon the effective date of this Ordinance.
SECTION 17: Effective Date.
This Ordinance shall become effective immediately upon four-fifths vote.
Presented by: Approved as to Form by:
John P. Lippitt Jo(/a~.. l~'heny
Director of Public Works City Attorney
J:\Engineer~AGENDAkpumpcd flow urgencyordinance sh doc
Last printecl I 0/16/2002 1:55 PM
Ordinance
Page 9
extend credits or offer reimbursement shall be independent of the
developer's obligation to pay the Fee."
SECTION 12: That the Assessment District set forth in Section 20 of Ordinance 2582,
shall be amended to read as follows:
"SECTION 20. Assessment District.
If any assessment or special taxing district is established to design,
construct and pay for any or all of the Facilities ("Work
Alternatively Financed"), the owner or developer of a project may
apply to the City Council for reimbursement from the Fund in an
amount equal to that portion of the cost included in the calculation
of the Fee attributable to the Work Alternatively Financed. In this
regard, the amount of the reimbursement shall be based on the
costs included in the-~--~t-n~"v'" ~m~".--~ 2002, "Pumped Sewer
Development Impact Fee Engineering Study", as amended from
time to time, and therefore, will not include any portion of the
financing costs associated with the formation of the assessment or
other special taxing district."
SECTION 13: That the Time Limit for Judicial Action set forth in Section 22 of
Ordinance 2582, shall be amended to read as follows:
"SECTION 22. Time Limit for Judicial Action.
Any judicial action or proceeding to attack, review, set aside, void
or annul this ordinance shall be brought within the time period as
established by Government Cede Seetien 5~.995 law after the
effective date of this ordinance. In accordance with Government
Code Section 66020 (d) (1), the ninety-da,/ approval period to
which parties ma_,G_protest begins upon the effective date of this
Ordinance."
SECTION 14: That the CEQA Findings for Statutory Exemption set forth in Section 23
of Ordinance 2582, shall be amended to read as follows:
"SECTION 23. CEQA Findings for Statutory Exemption.
The City Council does hereby find that the Fee herein imposed is
for the purpose of obtaining funds for capital projects necessary to
maintain service within existing service areas. The Council finds
that the proposed Facilities are in existing rights-of-way parallel to
or replacing existing sewer lines. Therefore, the City finds that the
adoption of this Ordinance is statutorily exempt under the
COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 11/12/02
ITEM TITLE: Consideration to amend the Public Works Department budget by adding
two Storm Water Compliance Inspectors positions, one Sr. Maintenance
Wroker and one new Maintenance Worker I/II for the Storm Water
Program
SUBMITTED BY: Director of Public Works ~
REVIEWED BY: City Manage~~) (4/5ths Vote: Yes No x )
On February 21, 2001, the San Diego Regional Water Quality Control Board adopted the new
National Pollutant Discharge Elimination System (NPDES) permit, Order No. 2001-01.
Pursuant to the Federal Clean Water Act, and the California Porter-Cologne Water Quality
Control Act, and in compliance with said Permit, 18 municipalities of San Diego County
(including Chula Vista), as well as the San Diego Unified Port District and the County of San
Diego, collectively referred to as the Copermittees, are mandated to maintain compliance with
the requirements of the Permit by implementing various tasks set out in that Permit.
RECOMMENDATION: It is recommended that this item be continued to the meeting of
November 12, 2002.
J:\ENGINEER\aGENDA\npdesAdditionalStaff&Equip~nentjg com'd.doc
COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 11/05/02
ITEM TITLE: Resolution Accepting bids, awarding contract for the "Corrugated
Metal Pipe (CMP) Rehabilitation, along Fifth Avenue between Westby Street
and the Telegraph Canyon Channel, in the City of Chula Vista, CA (DR-
137)" project to National Liner West, a Division of ZZ Liner, Inc. in the
amount of $109,725.00, and transferring $39,000.00 from CIP Project DR-
152 to CIP Project DR-137
SUBMITTED BY: Director of Public Work.s~/
REVIEWED BY: City Manager~/~'~" J~' (4/5tbs Vote: Yes X No.... )
At 2:00 p.m. on Wednesday, September 4, 2000, the Director of Public Works received sealed bids
for the "Corrugated Metal Pipe (CMP) Rehabilitation, Fifth Avenue between Westby Street and the
Telegraph Canyon Channel, in the City of Chula Vista, CA (DR-137)"project. This project provides
for the rehabilitation of existing corrugated metal pipe (CMP) as shown on the attached plat by
replacing certain portions and then lining the whole pipe.
RECOMMENDATION:
1. That Council accept bids, award the contract for the "Corrugated Metal Pipe (CMP)
Rehabilitation, along Fifth Avenue between Westby Street and the Telegraph Canyon
Channel, in the City of Chula Vista, CA (DR-137)" project to the lowest bidder, National
Liner West, a Division of ZZ Liner, Inc., in the amount of $109,725.00.
2. That Council transfer $39,000.00 from ClP Project DR-152 ($15,320 from the RCT fund
portion and $23,680 from the Storm Drain Funded portion) to C[P Project DR-137.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
General
This project provides for the rehabilitation (both lining and replacement) of existing corrugated metal
pipes (CMP) located mostly behind the sidewalk along the east side of Fifth Avenue between Westby
Street and Telegraph Canyon Channel in the City of Chula Vista, California. The existing CMP lines
are corroded and require rehabilitation. With the construction ofthis project, the City of Chula Vista
will be taking a preventative measure against the costly repairs associated with the CMP lines
collapsing and will be lessening the potential for public inconvenience.
Page 2, Item ~
Meeting Date 11/05/02
The project will replace approximately 100 feet of CMP. The entire 435 Lineal Feet of CMP will
then be lined using a Cured-In-Place Pipe Liner (CIPP Liner).
The project work also includes traffic control, protection and restoration of existing improvements,
other miscellaneous work, and all labor, material, equipment and transportation necessary for the
project.
Bidding Process
Engineering staff prepared plats and specifications and advertised the project on August 9, 2002.
Staffreceived and opened bids for the project on September 4, 2002.
Bids were received from three (3) contractors listed in order of "Original Base Bid Amount":
Contractor Original Base Bid Amount
National Liner West, a Division of ZZ Liner, Inc. $109,725.00
Bert W. Salas, Inc. $115,535.00
Insituform Technologies, Inc. $148,910.00
The lowest bid for the project, submitted by National Liner West, a Division of ZZ Liner, Inc., was
reviewed by City staff for potential award of the contract. The lowest bid is above the engineer's
estimate of $90,000.00 by $19,725.00 or 21.9%. StaWs bid estimate was based on average unit
prices received recently for similar type of work completed during the last two (2) years. It is staWs
opinion that the bid submitted by National Liner West, a Division of ZZ Liner, Inc. is responsive.
Engineering staffchecked three references provided by National Liner West, a Division of ZZ Liner,
Inc. The references were verified and their work has been satisfactory. Their Contractor's License
No. 391570 is clear and current. Staff, therefore, recommends awarding the contract to National
Liner West, a Division of ZZ Liner, Inc. of Gardena, California, in the amount of $109,725.00.
Disclosure Statement
Attached is a copy of the contractor's Disclosure Statement.
Environmental Status
The City's Environmental Review Coordinator has reviewed the work involved in this project and
has determined that the project is exempt under Section 15301, Class lB of the California
Environmental Quality Act (Minor Alterations of Existing Public Improvements or Public
Structures).
Page 3, Item (P
Meeting Date 11/05/02
Prevailing Wage Statement
This project is funded with Gas Tax, RCT Funds and Storm Drain Funds. Based on the current
project funding guidelines, no prevailing wage requirements were necessary as part of the bid
documents.
Fiscal Impact
FUNDS REQUIRED FOR CONSTRUCTION
A. Contract Amount (National Liner West, a Division of ZZ Liner, Inc.) $109,725.00
B. Contingencies (_+ 6%) $6,275.00
C. Staff Costs (Design, Inspection, Administration) $16,000.00
TOTAL FUNDS REQUIRED FOR CONSTRUCTION $132,000.00
FUNDS AVAILABLE FOR CONSTRUCTION
A. Gas Tax $93,000.00
B. Transfer from DR-152 (RCT portion) $15,320.00
C. Transfer from DR-152 (Storm Drain portion) $23,680.00
TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $132,000.00
The above action of awarding the contract will authorize a total expenditure of $93,000.00 from the
budgeted CIP project. In order to complete the project, an additional $39,000.00 will be
appropriated from the available fund balance in DR-152 ($15,320 from the RCT fund portion and
$23,680 from the Storm Drain Funded portion) to C1P Project DR-137. The additional funds are
needed to cover any potential additional construction costs, administrative costs, and the future staff
costs for construction inspection. After construction, only routine City maintenance will be required.
Attachments: Location Plat
Contractor's Disclosure Statement
( J:\Eng/neerLAGEN DA\DR 137A 113.doc; mji)
(10/15/02 9:16:49 AM)
ST. ~
PROJECT FILE ~DR-137
DRAtI~I BY:
/~ARIO /NGRASClI~0: CITY OF CHULA VISTA PREPARED BY:
DA~.: SHEET I I RM DRAIN REHABILITATION, FIFTH AVE.~
5-22-28 OF ~ SliTS. I WESTBY AVE. TO TELEGRAPH CANYON CHANNEL jJ~w~'~7
THE CITY OF CFIULA VISTA DISCLOSURE STATEMENT
Pursuant to Council Policy 101-01, prior to any action upon matters which will require discretionary
action by the Council, Planning comrmssion and all other official bodies of the City, a statement of
disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of
Chula Vista election must be filed. The following information must be disclosed:
1. List the names of all persons having a financial interest in the property that is the subject of the
application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier.
None
2. If any person* identified pursuant to (1) above is a corporation or partnership, list the names of all
individuals with a $1000 investment in the business (corporation/partnership) entity.
3. If any person* identified pursuant to (1) above is a non-profit organization or trust, list the names
of any person serving as director of the non-profit organization or as trustee or beneficiary or
tmstor of the trust.
Please identify every person, including any agents, employees, consultants, or independent
contractors you have assigned to represent you before the City in this matter.
Chris D. Scarratt
14
J:~Engineer~ADMIN~CONTRACT~DR 137-Contract-A.doc (7/31/02)
5. Has any person* associated with this contract had any financial dealings with an official** of the
City of Chula Vista as it relates to this contract within the past 12 months? Yes No ~;'
If Yes, briefly describe the nature of the financial interest the official** may have in this contract.
6. Have you made a conlribution of more than $250 within the past twelve (12) months to a current
member of the Chula Vista City Council? Yes__No X If Yes, which Council member?
7. Have you or any member of your governing board (i.e. Corporate Board of DirectOrs/Executives,
non-profit Board of Directors made contributions totaling more than $1,000 over the past four (4)
years to a current member of the Chula Vista City Council? Yes No X If Yes, which
Council member?
8. Have you provided more than $300 (or an item of equivalent value) to an official** of the City
of Chula Vista in the past twelve (12) months? (This includes being a source of income, money to
retire a legal debt, gift, loan, etc.) Yes No X If Yes, which official** and what was
the nature of item provided?
National Liner Wes~ivision
of ZZ LINER, ~4qj~%_ /1
Date: September 3, 2002 ~/~'~ ~/'~/-~_~-~-
- Signature or'Contractor/Applicant
Chris D. Scarratt~ President
Print or type name of Contractor/Applicant
* Person is defined as: any indiv/dual, firm, co-partnership, joint venture, association, social club,
fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality,
district, or other political subdivision, -or any other group or combination acting as a unit.
** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner,
Member ora board, commission, or committee of the City, employee, or staffmembers.
15
J:~Engin eerXADM IN~CONTRACTxDR 137-Con~ract-A~doc (7/31/02)
RESOLUTION NO. 2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING BIDS, AWARD1NG THE
CONTRACT FOR THE "CORRUGATED METAL PIPE (CMP)
REHABILITATION, ALONG FIFTH AVENUE BETWEEN
WESTBY STREET AND THE TELEGRAPH CANYON
CHANNEL, 1N THE CITY OF CHULA VISTA, CA (DR-137)'
PROJECT TO NATIONAL LINER WEST, A DIVISION OF ZZ
LINER, 1NC. IN THE AMOUNT OF $109,725.00 AND
TRANSFERRING $39,000.00 FROM CIP PROJECT DR-152 TO
CIP PROJECT DR-137
WHEREAS, on September 4, 2002, the Director of Public Works received the following
three sealed bids for the "Corrugated Metal Pipe (CMP) Rehabilitation, Various Locations, in the
City of Chula Vista, CA (DR-137)" project:
Contractor Bid Amount
qational Liner West, a Division of ZZ Liner, Inc. $109,725.00
3ert W. Salas $115,535.00
Insitufonn Technologies, inc. $148,910.00
WHEREAS, City staff reviewed the lowest bid for the project submitted by National Liner
West, a Division of ZZ Liner, which is ~bove the engineer's estimate of $90,000.00 by $19,72500 or
21.9%; and
WHEREAS, it is staf? s opinion that the bid submitted by National Liner West, is responsive;
and
WHEREAS, staff; therefore, recommends awarding the contract to National Liner West, a
Division of ZZ Liner, in the amount of $109,725.00; and
WHEREAS, the City's Environmental Review Coordinator has reviewed the work involved
in this project and has determined that the project is exempt under Section 15301, Class lB of the
California Environmental Quality Act (Minor Alterations of Existing Public Improvements or Public
Structures), and
WHEREAS, the source of funding for this project is Gas Tax, RCT Funds and Storm Drain
Funds and based on the current project funding guidelines, no prevailing ~vage requirements were
necessary as part of the bid documents.
NOW, THEREFORE, BE 1T RESOLVED that the City Council hereby accepts bids for the
"Corrugated Metal Pipe (CMP) Rehabilitation, Various Locations, in the City of Chula Vista, CA
(DR-137)" project and awards the contract to National Liner West, a Division of ZZ Liner, Inc. in
the amount of $109,725.00:
BE IT FURTHER RESOLVED that funds in the amount of $39,000.00 is hereby authorized
to be transferred from CIP Project DR-152 ($15,320 from the RCT Fund portion and $23,680 from
the Storm Drain Funded portion) to CIP Project DR-137.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized to execute the contract on behalf of the City of Chula Vista.
Presented by Approved as to form by
John P. Lippitt John M. Kaheny
Director of Public Works City Attorney
J:',Attorney\RESO\Corrugatcd Metal Pipe Rehabihtation doc
COUNCIL AGENDA STATEMENT
Item F/
Meeting Date: 11/5/02
ITEM TITLE: Resolution Accepting bids and awarding contract for "Sidewalk
Replacement at Various Locations in the City of Chula Vista, California
(JY-065I)" project, and authorizing staff to increase value of contract to
expend all available funds for this project
SUBMITTED BY: Director of Public Works~//
REVIEWED BY: City Manage~,-~ (4/Sths Vote: Yes No X )
On September 11, 2002, the Director of Public Works received sealed bids for the "Sidewalk
Replacement at Various Locations in the City of Chula Vista, California (JY-065I)" project. The
work consists of the removal and replacement of displaced curbs, gutters, sidewalks, and
driveways. The work includes excavation and grading, PCC sidewalks, driveways, curbs &
gutters, asphalt concrete pavement, removal and disposal of existing improvements, traffic
control, protection and restoration of existing improvements, other miscellaneous work, and all
labor, material, equipment, and transportation necessary for the project.
RECOMMENDATION: That Council accept bids and award the contract for the "Sidewalk
Replacement at Various Locations in the City of Chula Vista, California (JY-065I)' project to
Jimenez Inc. dba MJC Construction, of Chula Vista, California, for $81,940.00, and authorize
stat'f to increase value of contract to expend all available funds for this project.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION: The Public Works Operations Street Maintenance budget includes funds for this
project. The project was included in the budget to remove and replace curbs, gutters, sidewalks,
and driveways displaced on various City streets. This contract covers FY2002-2003
maintenance budget.
Engineering staff prepared plats, specifications, and advertised the project. Staff received and
opened bids on September 11, 2002.
The City received bids from four contractors as follows:
CONTRACTOR BID AMOUNT
1. Jimenez, Inc. dba MJC Construction. - Chula Vista, California. $81,940.00
2. Portillo Concrete -. Chula Vista, California $82,360.00
3. Scheidel Contracting La Mesa, California $121,290.00
4. Kirk Paving, Inc. Lakeside, California $148,476.00
Tbe low bid by Jiinenez, Inc. is below the Engineer's estimate of $98,550.00 by $16,610.00.
Jimenez, Inc. dba MJC Construction has done several capital improvement projects in the city,
Page 2, Item /
Meeting Date: 11/5/02
and his work has been satisfactory. Staff has reviewed the low bid and recommends awarding
the contract to Jimenez, Inc. dba MJC Construction of Chula Vista, California, for $81,940.00.
Because of the low bid received, the Public Works Operations Street Maintenance group
prepared a list of additional locations to be repaired to use all available funds. The contract
specifications allow staff to increase or decrease the quantities based on available funds.
Attachment "A" shows the specific work to be done at each location, approximate quantities of
sidewalk, curb, gutter, and driveway to be installed, including the additional locations to use all
available funds.
Disclosure Statement
Attachment "B" is a copy of the contractor's Disclosure Statement.
Environmental Status
Tbe Environmental Review Coordinator has reviewed the proposed project for compliance with
the California Enviromnental Quality Act (CEQA) and has determined that the proposed project
is exempt from CEQA pursuant to Section 15301(c)(1), replacement or reconstruction of existing
facilities, of the State CEQA Guidelines.
Wage Statement
The source of funding for this project is Gas Tax Funds. Contractors bidding this project were
not required to pay prevailing wages to persons employed by them for the work under this
project. Disadvantaged businesses were encouraged to bid through the sending of the Notice to
Contractors to various trade publications.
FISCAl, IMPACT:
FUNDS REQUIRED FOR CONSTRUCTION
A. Contract Amount (Jimeoez, Inc.) $81,940.00
B. Contingencies and additional locations $18,060.00
C. * Staff Costs (Design & Inspection) $12,000.00
TOTAL FUNDS REQUIRED FOR CONSTRUCTION $112,000.00
FUNDS AVAILABLE FOR CONSTRUCTION
A. Gas Tax (16731 6401) $100,000.00
B. * Gas Tax Funds (22130-7003) $12,000.00
TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $112,000.00
Staff costs will be reimbursed directly from Gas Tax, because the project's funds come from
the Street Maintenance account and are only for street maintenance.
Upon completion of the project, the improvements will require only routine City street
maintenance.
Attachments:
A Location of Work Table
B - Contractor's Disclosure Statemeot
] :\~NGI N EER\AGENDA\JY065I All3.DOC
ATFACHMENT "A"
Sidewalk Replacement FY2002-03 JY-065I
No Plot Street Street J 4" 5/W Mono S/W, 6" D/W ¢/G
No. Number Name I SF C/G. SF LF
1 ~. ! I 77!"G" Street I 280 '
1941 H Street at Second Avenue ~ 345 238 16
3 2 44 "]" Street 155
4 : 2 68"Ji~Str. e~t 175 1
5 2 240 ",l" street 115
6 P 262 ",l" street 90
7 2 266 ",l" street 128
8 i 2 266"'3" Street 90
I 5 372"3" StFeet 125!
10 5 426 "Y' Street 175)
1! 5 430i",l" Street ,: 100)
12 ' § 436~"]'' Street 75i
14 5 446 "]" Street 95
1§';~ 5 468 ",l" Street 75
68i ] ~[ee~ ~n Br!g~htw0od Avenue 75
17 § §461 K Street 225 132
' 18 796 Cedar on "K" Street 200 77
19 3 1334 Costa 16
3 1346 Costa
21 3 1347~Costa ~ 31
; 22 li 49 East Oxford Street 138
23 11 1119 Cuyamaca Avenue 148
24 1 70iDav dson Street 3251
' 25 2 700]Del~ Mar Avenue on "]" Street ! 165
26 2 701 De Mar Avenue on "]" Street 210
27 9 966 East "]" Street ~ 175
28 9 970 East ".l" Street ~ 65 '
~ 11 81 East Emerson Street ~ ~4
30 11 ll2East' Orlando 220 l
31 9 80 East Paisley Street ~ 96
I 32 9 170Eckman. Court 175 8
~ 33 ' § 702iEIder Avenue on "3" Street /
~ 150
~ 1
34 § 701 i Fifth Avenue 225i
35 ' 5 844 Fifth Avenue 75
': 36 5 701!Fifth Avenue on ",l" Street 300i
Fig Avenue & Halsey Street, n/w
37 5 648 corner 280;~
38 8 1682!Gotham 76
39 4 623iGretchen, 212i 256 23
5idewolk List FYO3.xls 09/24/02 Appendix "A": Page 1 of 3
ATTACHMENT
Sidewalk Replacement FY2002-03 JY-065I
No P'ol' Sl'reet' $,ree, 4" .~/~V llAo.o $/W. I 6" I)/~/ I ¢/~ Priroty
No. Number Nome SF ¢/G' SFI LF
LF
~ 1218 Hilltop Drive 95
40! 11 1296 .ludson Way ,
42 ~, 5 954 Kittiwake 145 20
43 H 87 Leanna 116i 29
~ 3 1081 Madison Avenue 255 39
45 ~ 4 882~!Melrose Avenue 2251
7 1580 ~, Melrose Avenue 15
4 ii, lO4
48 3 491 Nickman 40 110 32
49 4 930 N~ta Court 164 28 1
northwest corner F~fth Avenue &
501 5 ".l" Street
160
§1 7 1526 Oleander Avenue ,~ 15
52 7 1552iOleander Avenue i 15
53 7 157010leander Avenue 115
54, 7 1581 Oleander Avenue 16
9 566 Otis 228 671
::56 9 1200 Raven
57 9 1355:Third Avenue 35
58 9 700;TwnOaksAvenueon' .1 Street 150
59 8 1550iVia Hacienda 100
60 5 440 "J" Street
120
61 1! 1160iAgua Tibia 40
62 10 1057 Calle Mesita
66 6 712 East "J" Street 80 ] 2
67 6 715East"Y' Street
70 il 207 East Oneida
71 11 217 East Oneida 100
11 102 East One da on ]udson ~l ~l
~ 11 167~East Palomar Street 230 t
~ 74 1 233 First Avenue 50
75 4 646iGretchen Road 48
76:: 4 (~SOi ~re~l~r) Ro~'d 144
77 7 617 Melrose Avenue ~ ~
78 ! 54'Minor Avenue 320 59i
Sidewalk List FY03.xls 09/24/02 Appendix "A": Poge 2 of 3
A1TACHMENT 'A"
Sidewalk Replacement FY2002-03 JY-065I
No Plat S~'reet Si~'eet 4" S/W Mono S/Wa 6" I)/W C/~
No. Number Name SF ¢/~ SF L~
LF
~? ! 54 Minor Avenue : i 3781
80 ! 4 387 Montcalm 80
81 i 8 8ID!Stanford
82 ', 10 2121Surrey Drive, across from
83 9 1341iTheresa Way 1201
~ 1345 iTheresa Way
8 240
86 6 811Lori Lane 112
=-Additional .......... Locations:
87
1448 Country Vistas Lane i 10 300
88 1369 Don Carlos Court ~ 40 100
89 614iSelinda, Way 32! 40
90
21 Shasta Street 60
' 91 588 Douglas Street 88 30
92 301 Montcalm Street 176
93 65 East Paisley Street 100i 15
9~j 188:;East Quintard Street 144
95 1350-1356 Monserate Avenue i 180i
2087~ 684]
Sidewalk List FY03.xls 09/24/02 Appendix "A": Pa~e 3 of 3
- ....-~v:~llVlI-DI/
THE CITY OF cHULA VISTA DISCLOSURE STATEMENT
Pursuant to Council Policy 101-01, prior to any action upon matters which will require discretionary
action by the Council, Planning Comnnssion and all other official bodies of the City, a statement of
disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of
Chula Vista election must be filed. The following information must be disclosed:
1. List the names of all persons having a financial interest in the property that is the subject of the
application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier.
3. If any person* identified pursuant to (1) above is a non-profit organization or trust, list the names
of any person serving as director of the non-profit organization or as trustee or beneficiary or
tmstor of the trust.
4. Please identify every person, including any agents, employees, consultants, or independent
contractors you have assigned to represent you before the City in this matter.
14
J:\E NGIN~I~ R\DESK~ N\JY0~I~Y08~IoCONTRACT. DOB
C~ty of Chula V~sta as it relates to this contract within the past 12 months? Yes No_~
If Yes, briefly describe the nature of the financial interest the official** may have in this contract.
6. Have you made a contribution of more than $250 within th~ p~st twelve (12) months to a current
member of the Chula Vista City Council? Yes No 2% If Yes, which Council member?
7. Have you or any member of your governing board (i.e. Corporate Board of Directors/Executives,
non-profit Board of Directors made contributions totaling more than $1,000 over the past four (4)
years to a current member of the Chula Vista City Council9 Yes No ~ If Yes, which
Council member? ' . _
8. Have you provided more than $300 (or an item of equivalent value) to an offieial** of the City
of Chula Vista in the past twelve (12) months? (This includes being a source of income, money to
retire a legal debt, girl, loan, etc.) Yes No ~" If Yes, which official** and what was
the nature of item provided? ~ -
Date: c~-/[-0~3~ ~.~._.~.~
~gnature of Contractor/Applicant
Print or type name of Contractor/Applicant
* Person is defined as: any individual, firm, co-partnership, joint venture, association, social club,
fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality,
district, or other political subdivision, -or any other group or combination acting as a unit.
** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner,
Member of a board, commission, or committee of the City, employee, or staff members.
J:\ENGrNEER\DESrGN\JY0651~JYO651.CONTRACT.DOC 15
RESOLUTION NO. 2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING BIDS AND AWARDING
CONTRACT FOR "SIDEWALK REPLACEMENT AT VARIOUS
LOCATIONS IN THE CITY OF CHULA VISTA, CALIFORNIA
(JY-065I)" PROJECT, AND AUTHORIZING STAFF TO
INCREASE VALUE OF CONTRACT TO EXPEND ALL
AVAILABLE FUNDS FOR THIS PROJECT
WHEREAS, on September 11, 2002, the Director of Public Works received the
following four sealed bids for "Sidewalk Replacement at Various Locations in the City of Chun
Vista, Ca. (JY-0651)":
CONTRACTOR BID AMOUNT
l. Jimenez, Inc. dba MJC Construction - Chula Vista, California. $81,940.00
2. Portillo Concrete, Inc. Chula Vista, Califomia $82,360.00
3. Scheidel Contracting La Mesa, California $12.1,290.00
4. Kirk Paving, Inc. Lakeside, California $148,476.00
WHEREAS, the Iow bid by Jimenez, Inc. is below the Engineer's estimate of
$98,550.00 by $16,610.00; and
WHEREAS, staff has reviewed the low bid and is recommending awarding the
contract to Jimenez, Inc. dba MJC Construction of Chula Vista, California; and
WHEREAS, the contract specifications allow staff to increase or decrease the
quantities based on available funds and because of the low bid received, the Public Works
Operations Street Maintenance group prepared a list o f additionai locations to be repaired to use all
available funds; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
project for compliance with the California Environmental Quality Act and has determined that the
project quali ties for a Class I categorical exemption pursuant to Section 15301 of the State CEQA
Guidelines, thus, no further environmental review is necessary; and
WHEREAS, the source of funding for this project is Gas Tax Funds and contractors
bidding this project were not required to pay prevailing wages to persons employed by them for the
work under this project; and
WHEREAS, no special minority or women owned business requirements were
necessary as part of the bid documents, however, disadvantaged businesses were encouraged to bid
through the sending of the Notice to Contractors to various trade publications.
1
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula
Vista does hereby accept bids and award the contract for the "Sidewalk Replacement at Various
Locations in the City of Chula Vista, California (JY-065I)" project to Jimenez, Inc. dba MJC
Construction of Chula Vista, California in the amount of $81,940.00.
BE IT FURTHER RESOLVED that staff is hereby authorized to increase the value of
the contract to expend all available funds for this project.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized to execute said contract on behalf of the City of Chula Vista.
Presented by Approved as to form by
Director of Public Works {~y Attorney ~
[J:'~ATTORNEYX, RESO\ sidewalk replacement (October 23, 2002 (9:44AM)]
COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 11/05/02
ITEM TITLE: Resolution Approving an agreement between the City of Chula
Vista and the City of San Diego for the interim use of the Otay Valley
Trunk Sewer (OVTS) Line.
/
SUBMITTED BY: Director of Public Works ~
V
REVIEWED BY: City Manag~ ~t~)
(4/5ths Vote: Yes No X )
Currently, the sewage generated by the developments within the Salt Creek Sewer Basin is being
pumped into the Telegraph Canyon Sewer Basin (Telegraph Canyon Trunk Sewer) pending the
completion of the Salt Creek Gravity Sewer Intemeptor by the summer of 2003. Recent flow
metering and engineering studies have indicated that the Telegraph Canyon Trunk Sewer may be
reaching threshold capacity, and may not be able to accommodate additional pumped sewage
flows prior to the completion of the Salt Creek project. The City has negotiated with the City of
San Diego to temporarily divert 2.75 million gallons per day (MGD) of sewage into their Otay
Valley Tnmk Sewer (OVTS) for a period of approximately Ten (10) Months beginning
November 1, 2002 and ending August 31,2003
RECOMMENDATION: That Council adopts a resolution approving the agreement by and
between the City of Chula Vista and the City of San Diego for the interim use of the Otay Valley
Trtmk Sewer (OVTS) Line.
BOARDS / COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The City of Chula Vista is currently constructing the Salt Creek Gravity Sewer Interceptor,
which involves the installation of more than 12.5 miles of sewer lines. This sewer line ranges in
diameter from 15 inches at the easterly end to 42 inches at the westerly connection to the City of
San Diego's Metro Interceptor. The Salt Creek Trunk Sewer is being constructed in four phases.
The first phase of the project is almost complete. The remaining phases will be completed by the
summer of 2003.
Currently, the existing developments within the Salt Creek Sewer Basin are being served by the
Telegraph Canyon Tnmk Sewer. Recent engineering studies and sewage flow monitoring of the
Page 2, Item ~
Meeting Date 10/15/2002
Telegraph Canyon Trunk Sewer have shown that this facility maybe approaching threshold
capacity.
To alleviate the pressure on the Telegraph Canyon Trunk Sewer system, and continue to provide
sewer service to developments within the Salt Creek Basin during the completion of the
remaining phases of the Salt Creek Gravity Sewer Interceptor, Staff has concluded that a feasible
alternative is the temporary diversion of the sewage flows generated within the Salt Creek Sewer
Basin via the Poggi Canyon Trunk Sewer to the City of San Diego's Otay Valley Trunk Sewer
(OVTS) line.
To convey the sewage from the Salt Creek Sewer Basin to the OVTS, two sewer pump stations
located at Olympic Parkway and Otay Lakes Road will be retrofitted to temporarily pump flows
to the Poggi Canyon Basin Sewer Interceptor. From the Poggi Canyon Basin Sewer Interceptor,
a connection will be made to the OVTS. Based on the engineering studies and discussions with
City of San Diego's staff, the most suitable place to make the connection to the OVTS is at the
intersection of Palm Avenue and Valley Avenue (See Exhibit I for details).
Staff has held several meetings with City of San Diego Staff to facilitate this connection. It was
based on these discussions and other reviews, that the City of San Diego granted permission to
the City of Chula Vista to make connection and temporarily discharge 2.75 MGD of sewage for
the period ofTen (10) Months beginning on November 1, 2002 and ending on August 31, 2003
in accordance with the terms of the agreement as shown on Attachment 1.
The primary conditions stipulated by the City of San Diego as part of this agreement are
summarized as follows:
1. The connection to the OVTS shall be subject to the City of San Diego's construction
standards and approval. The City of Chula Vista shall bear the entire expense of the
connection, operation and maintenance.
2. The temporary capacity that the City of Chula Vista will be allowed to divert into the
OVTS shall be equal to 2.75 MGD for a period of approximately 10 months from
November 1, 2002 through August 31, 2003.
3. The City of Chula Vista will pay for the utilization of the OVTS and the charges shall be
based upon the City of San Diego's determination of the operation and maintenance cost
of its trunk lines. The current Transportation Unit Cost is $0.66 per million gallons per
mile.
At the present time, the requirements of the City of Chula Vista is to divert 2.75 MGD, however
if due to some unforeseen circumstance, the Salt Creek Interceptor is not completed before the
end of the term of this agreement, the City of Chula Vista can request of the City of San Diego
an extension of the interim agreement. Although the City has this alternative, City staff does not
envision the necessity to extend this agreement. The Salt Creek Gravity Sewer Interceptor is
Page 3, Item ~
Meeting Date 10/15/2002
expected to come online by the summer of 2003 and meet the demand for service in the Salt
Creek Sewer Basin.
Cost Allocation
Under the terms of the agreement, the City shall be required to pay its pro-rated share of the
maintenance and operations costs of the trunk sewer system. The Otay Valley Tnmk Sewer line
was originally constructed by a group of San Diego developers (Otay Industrial Center) and is
being managed by the City of San Diego on behalf of these developers. Based on the cost
allocation methodology defined for the use of the pipe, the monthly cost of diverting 2.75 mgd of
sewage in that line is approximately $21,500 (including monitoring charges). For the ten-month
period that is covered under this agreement, the total cost will be approximately $218,000.
Construction
The design plans for the construction of the project have been completed and approved by the
City of San Diego. Since this project is necessitated by the delayed completion of the Salt Creek
project, one of the contractors working on the Salt Creek project (TC Construction) will do the
necessary retrofitting through a Contract Change Order. TC construction has submitted a
proposal in the amount of $38,600 for completing the work involved. The change order will be
executed by the Director of Public Works in accordance with Council Policy No. 574-01.
It is estimated that the project will be completed within 1-week, and should be operational by
mid-November 2002.
CONCLUSION
It is the Staff's recommendation that Council approve this agreement to enable the City to
continue to provide sewer service to developments within the Salt Creek basin pending the
completion of the Salt Creek project. Without this agreement providing for the temporary
diversion there will be a lack of additional sewage capacity, thereby resulting in overflow in the
existing sewer system and lack of adequate service due to the increased population in the Eastern
Territories.
ENVIRONMENTAL IMPACT
The Environmental Review Coordinator has reviewed the proposed project for compliance with
the California Environmental Quality Act and has determined that the project qualifies for a
Class 1 categorical exemption pursuant to Section 15301 of the state CEQA Guidelines. Thus, no
further environmental review is necessary.
FISCAL IMPACT
Under the terms of the Agreement, the City is required to pay Transportation Costs to the City of
San Diego for the use of its facility. The cost-allocation is based on the City's overall
Page 4, Item
Meeting Date 10/15/2002
contribution of sewage flows. Using the methodology outlined in the agreement for the
determination of the Transportation Costs, the City's expenditure for the ten-month term of the
agreement would be approximately $218,000.
The approval of this resolution will authorize the use of Trunk Sewer Capital Reserve Funds to
pay the Monthly Capacity Charges and Transportation Costs to the City of San Diego and obtain
temporary capacity rights within the City of San Diego Otay Valley Trunk Sewer line for the
specified period.
Attachments:
Exhibit 1: Plan showing the location of the interim connection to the Otay Valley Tnmk
Sewer.
Exhibit 2: Agreement by and between the City of Chula Vista and the City of San Diego for
the interim connection to the Otay Valley Trunk Sewer and the temporary
diversion of 2.75 millions of gallons per day of sewage by the City of Chula
Vista.
J:\Engineer~AGENDA\Salt Creek Interim Connection Agenda Statement.sh.doc
Last printed 10/22/02 3:11 PM
RESOLUTION NO. 2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING THE AGREEMENT BY AND BETWEEN THE
CITY OF CHULA VISTA AND THE CITY OF SAN DIEGO FOR THE
INTERIM USE OF THE OTAY VALLEY TRUNK SEWER (OVTS)
LINE, AND AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT
WHEREAS, the sewage generated by the developments within the Salt Creek Sewer
Basin is being pumped into the Telegraph Canyon Sewer Basin (Telegraph Canyon Trunk
Sewer) pending the completion of the Salt Creek Gravity Sewer Interceptor by the summer of
2003; and
WHEREAS, recent flow metering and engineering studies have indicated that the
Telegraph Canyon Trunk Sewer may be reaching threshold capacity, and may not be able to
accommodate additional pumped sewage flows prior to the completion of the Salt Creek project;
and
WHEREAS, the City has negotiated with the City of San Diego to temporarily divert
2.75 million gallons per day (MGD) of sewage into their Otay Valley Trunk Sewer (OVTS) for a
period ofTen (I0) Months beginning November 1, 2002 and ending August 31, 2003.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista does hereby approved the Agreement by and between the City of Chula Vista and the City
of San Diego for the interim use of the Otay Valley Trunk Sewer (OVTS) Line, a copy of which
shall be kept on file in the office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
attthorized to execute said Agreement for and on behalf of the City of Chula Vista.
Presented by: Approved as to form by:
John P. Lippitt J~n~~yy t~r'~''MSc~
Director of Public Works City Attorney
J:'xAltorney\reso\OVTS Agreement
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
Cfohi~M ~ Kaheny ~
City Attorney
Dated: /~? ~' 2-~D &
AGREEMENT BETWEEN THE CITY OF CHULA VISTA
AND THE CITY OF SAN DIEGO FOR THE INTERIM
USE OF THE OTAY VALLEY TRUNK SEWER (OVTS)
LINE
Recording Requested by and When
Recorded Return to:
City Clerk
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
<Above Space for Recorder's Use Only>
OTAY VALLEY TRUNK SEWER AGREEMENT BETWEEN THE CITY OF CHULA VISTA
AND THE CITY OF SAN DIEGO
This Agreement ("Agreement") is made this day of , 2002, by and
between THE CITY OF CHULA VISTA, a municipal corporation ("Chula Vista"), and THE
CITY OF SAN DIEGO, a municipal corporation ("San Diego") and is made with reference to
the following facts:
RECITALS
WHEREAS, the City of Chula Vista is currently in the process of constructing the Salt Creek
Gravity Sewer Interceptor, which is proposed to serve the developments in the Eastern
Territories (Salt Creek Basin, Poggi Canyon Basin and Wolf Canyon Basin); and
WHEREAS, the Salt Creek Gravity Sewer project which is currently scheduled to be
constructed in four Phases is already under construction and is expected to be completed before
the end of July 2003; and
WHEREAS, sewer service to developments within the Salt Creek Basin is currently being
provided by pumping sewage generated in that basin into the Telegraph Canyon Trunk sewer
line (Telegraph Canyon basin); and
WHEREAS, recent flow metering and engineering studies have indicated that the Telegraph
Trunk sewer line is approaching threshold capacity, and to mitigate this, the pumped flow needs
to be temporarily diverted into another basin or trunk sewer line; and
WHEREAS, the City of San Diego has determined that it has available capacity in the San
Diego Municipal System (SDMS) at this time, in the amount of 2.75 MGD (2.75 Million Gallons
Per Day) in the Otay Valley Trunk Sewer [OVTS], and is willing to allow Chula Vista to
temporarily divert the pumped flow in accordance with the terms of this agreement; and
WHEREAS, in order to facilitate the diversion of flow into another basin, two pump stations
located at Olympic Parkway and Otay Lakes Road can be retrofitted to pump flows via the newly
constructed Poggi Canyon trunk sewer to a temporary connection with the OVTS at a location
close to the intersection of Palm Avenue and Valley Avenue at the location designated in Exhibit
1, attached hereto and incorporated herein by this reference; and
WHEREAS, on September 5, 1989 by Resolution No. 274368 the City Council of Chula Vista
approved the "Sewage Transportation Agreement between the City of San Diego and the City of
Chula Vista concerning the Otay Rio Business Park" herein referred to as "Sewage
Transportation Agreement", which allocated capacity in the OVTS to the City of Chun Vista in
the amount equal to one thousand, five hundred and twenty (1,520) Equivalent Dwelling Units
(EDUs) with an average flow rate of four hundred and twenty five thousand, three hundred
(425,300) gallons per day and a peak flow rate of 1.32 cubic feet per second (CFS); and
WHEREAS, the City of Chula Vista has requested that the City of San Diego provide temporary
capacity of the 2.75 MGD of sewage through the OVTS for the period of ten (10) months
beginning November 1, 2002 and ending August 31, 2003 as more particularly set forth below;
and
WHEREAS, the City of San Diego is obligated to establish charges for use of the OVTS, in part
to reimburse the Otay International Center [OIC] for construction of the OVTS, pursuant to the
Otay Mesa Sewer Facilities Participation Agreement with Otay International Center, Document
No. RR-264173 dated September 30, 1985;
NOW, THERFORE IN CONSIDERATION of the mutual covenants and conditions herein
contained, that the parties do hereby mutually agree as follows:
1. DEFINITIONS
a. Equivalent Dwelling Unit (EDU)
One EDU is equal to two hundred and eighty (280) gallons of average daily flow.
b. Peak Flow
Peak Flow shall mean the highest actual instantaneous discharge of sewage as measured
in fifteen minute intervals at the metering device, expressed as either a rate of flow in
cubic feet per second (cfs) or in million gallons per day (MGD) (1 cfs = .646317 MGD).
In the event of a dispute, cubic feet per second (cfs) will take precedence..
c. Sewage
Sewage shall mean wastewater and any and all other waste substance whether liquid,
solid or gaseous.
Page 2 of 7
d. Transportation charge
The amount charged to other agencies by San Diego to operate and maintain sewer pipes,
measured in dollars per million gallons of sewage per mile.
2. CONNECTIONS TO THE OVTS
San Diego shall permit sewage from Chula Vista to be temporarily discharged into the
OVTS. Chula Vista shall, at its sole expense, make the necessary connections to allow
such discharge to the OVTS at the location designated in Exhibit 1, attached hereto and
incorporated herein by this reference. The connection shall be subject to the standards
and approval of San Diego.
3. OPERATION, MAINTENANCE, MANAGEMENT AND CONTROL OF OVTS
CONNECTION
Chula Vista, at its sole expense, shall operate, maintain, manage and control its sewer
facilities which discharge into and connect to the OVTS in an efficient and economical
manner and maintain and preserve them in good repair and working order, all in
accordance with recognized and sound engineering practices.
4. INSTALLATION OF METERING STATION
San Diego shall install, a metering device at the location mutually agreed to by San
Diego and Chula Vista to monitor the amount of sewage discharged into the OVTS. The
installation of the metering device shall meet the standards set forth by San Diego.
5. PURCHASE, INSTALLATION, OPERATION, MAINTENANCE, MANAGEMENT
AND CONTROL OF METERING DEVICE
San Diego shall contract for the installation of the meter under its current contract with
ADS and shall then operate, maintain, manage and control the metering device in an
efficient and economical manner and preserve it in good repair and working order, all in
accordance with recognized and sound engineering practices. For this service, Chula
Vista shall reimburse San Diego one hundred percent (100%) of the costs incurred for
purchase, installation, operation, maintenance, management and control. San Diego shall
provide flow reports to Chula Vista on a monthly basis. In addition, Chula Vista shall
have access to the electronic files from the metering device.
6. CAPACITY ALLOCATION IN THE OVTS
(a) Temporary Capacity Allocation
Page 3 of 7
During the term of this Agreement, the City of Chula Vista shall be allowed to divert into
the OVTS a maximum Peak Flow of two and three-quarter (2.75) million gallons of
sewage per day, starting from November 1, 2002 and ending August 31, 2003.
(b) Capacity Allocation
The Sewage Transportation Agreement remains in full fome and effect. The parties
hereto agree that this agreement in no way modifies or amends the terms and conditions
of Sewage Transportation Agreement, City document RR-274368 dated September 11,
1989.
7. CAPACITY AND TRANSPORTATION CHARGES
(a) Chula Vista will pay the City of San Diego a temporary capacity charge in an amount
agreed to by the OIC, currently anticipated to be $21,826.32 per month for the 2.75
MGD, which will be billed on a quarterly basis. In the event the OIC disputes the
sufficiency this amount, Chula Vista may, at its option, either pay the amount requested
by the OIC, or immediately cease discharge of sewage into the OVTS and pay any
outstanding capacity and transportation charges incurred to date. San Diego shall not be
liable for any deficiency between the capacity charge established by this Agreement and
what the OIC may claim as a higher capacity charge, and Chula Vista shall indemnify
San Diego against any such claim by the OIC.
(b) Chula Vista shall also pay all costs and expenses ("Transportation Charges") for the
use of the OVTS. The current transportation unit cost is $0.66 per million gallons per
mile. This rate may be adjusted annually to reflect any change in the maintenance costs.
The Transportation Charges shall be based upon San Diego's determination of the
operation and maintenance cost of its trunk lines. Chula Vista's Transportation Charges
shall be based upon Chula Vista's sewage flow in million gallons multiplied by the rate
per million gallons multiplied by the number of transportation miles.
(c) San Diego shall bill Chula Vista quarterly for the "Transportation Charges". The
billing shall be furnished to Chula Vista within forty-five (45) days after the end of the
calendar quarter to which the billing relates. Payment shall be made by Chula Vista
within thirty (30) days after receipt of the billing from San Diego. The billing will occur
quarterly.
(d) No payment shall be withheld by Chula Vista because of any dispute as to the amount
thereof. Such payment shall be made with a notation as to the portion in dispute. Any
amount determined to have been improperly allocated to Chula Vista shall be promptly
refunded by San Diego.
8: CONTRACT TERM
This Agreement shall become effective upon execution by both parties, and expire at
midnight, August 31, 2003. Chula Vista shall have the right to request an extension of
the interim connection to the OVTS to continue diverting two and three-quarters (2.75)
MGD, and shall notify San Diego in writing sixty (60) days prior of the expiration of this
Page 4 of 7
Agreement. San Diego shall respond, in writing, within thirty (30) days after being
notified by Chula Vista of its need to extend this Agreement, and shall indicate if the
extension will be granted or denied. No extension will be effective, however, without a
written amendment to this Agreement signed by both parties and a written approval from
an authorized OIC representative.
9. APPLICABLE RULES, REGULATIONS AND LAWS
Chula Vista agrees that all sewage discharged into the OVTS shall comply with all
appropriate ordinances, policies and practices of San Diego, and the applicable roles,
statutes and regulations of the United States, State of California and County of San Diego
having jurisdiction over the collection, transmission, treatment and disposal of sewage
and waste.
10. ACQUISITION OF ADDITIONAL CAPACITY FROM SAN DIEGO
Chula Vista may request an increase in the temporary capacity set forth in Section 6 of
this Agreement. Chula Vista shall apply to San Diego for such additional capacity
service, stating the amount of additional capacity it desires. San Diego shall then, in its
sole discretion, determine if additional capacity can be made available. San Diego shall
promptly notify Chula Vista in writing of its decision to grant or deny the application. If
the application is granted, San Diego shall set forth in writing the additional cost for the
temporary capacity. Once payment has been made for the temporary capacity, it shall
then be available to Chula Vista.
11. MEDIATION
(a) Upon notice to all of the parties involved, any dispute may be submitted to a
mutually-acceptable mediator for resolution of the issue(s) raised. The decision of the
mediator shall not be final or binding unless subsequently agreed to in writing by the
parties involved. Mediation is a prerequisite for any party to proceed to litigation. If
mediation has not occurred within ninety (90) days after written request for mediation has
been received by either party, the party requesting mediation may proceed to litigation
unless the period for mediation has been extended b~ mutual agreement.
(b) All mediation proceedings, results, and documentation, shall be non-binding and
inadmissible for any purpose in any legal proceeding (pursuant to California Evidence
Code sections 1115 through 1128), unless such admission is otherwise agreed upon in
writing by both parties. Mediators shall not be subject to any subpoena or liability, and
their actions shall not be subject to discovery.
12. MANNER OF GIVING NOTICE
(a) Notices required or permitted hereunder shall be sufficiently given if in writing and if
either served personally upon or mailed by registered or certified mail to:
Page 5 of 7
City of Sun Diego
Metropolitan Wastewater Director
9192 Topaz Way
Sun Diego, CA 92123
City of Chula Vista
Public Works Director
276 Fourth Avenue
Chula Vista, CA 91910
(b) If shall points of contact und addresses should change, it is the obligation of the party
making the change to notify the other party by writing as soon as the chunge becomes
effective.
13. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the parties regarding the acquisition
of temporary capacity in the OVTS. This Agreement is not intended to nor shall it in any
way supersede or modify the terms and conditions of the Regional Wastewater Disposal
Agreement between the City of Sun Diego and the Participating Agencies in the
Metropolitan Sewerage System, Ordinunce No. 0-18517, filed May 18, 1998 or any
amendments thereto.
14. GOVERNING LAW
In the event of litigation with respect to this Agreement, or the interpretation thereof, and
with respect to all disputes or controversies arising hereunder, this Agreement shall be
construed in accordunce with, und governed by, the laws of the State of California.
Venue in respect to uny suit or proceeding brought under or in connection with this
Agreement shall be the County of San Diego, State of California
15. INTERPRETATION
No inference, assumption or presumption shall be drawn from the fact that a party or its
attorney prepared and, or drafted this Agreement. It shall be conclusively presumed that
both parties participated equally in the preparation and, or drafting this Agreement.
Page 6 of 7
SIGNATURE PAGE TO THE AGREEMENT
BY AND BETWEEN
THE CITY OF CHULA VISTA
&
THE CITY OF SAN DIEGO
For the Interim use of the Otay Valley Trunk Sewer (OVTS) and the temporary diversion of 2.75
Million Gallons Per Day (MGD) of sewage by the City of Chula Vista.
1N WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day
and year first hereinabove set forth.
CITY OF SAN DIEGO CITY OF CHULA VISTA
Scott Tulloch Shirley Horton
Metropolitan Wastewater Director Mayor
Attest:
Susan Bigelow
City Clerk
Approved as to form: Approved as to form:
CASEY GW1NN, City Attorney JOHN M. KAHENY, City Attomey
By: By:
Deputy City Attorney Deputy City Attorney
JSEngineer\AGENDA\Salt Creek Interim Connection Agreement sh doc
Last printed 10/21/02 1:35 PM
Page 7 of 7
COUNCIL AGENDA STATEMENT
Item
Meeting Date 11/05/02
ITEM TITLE: Resolution Amending the FY03 Library Department
Budget by appropriating a) unanticipated donation and grant revenue
in the amount of $2,550 for the Literacy program, and b) unanticipated
revenue of $835 for the STRETCH program
SUBMITTED BY: Deputy City Manager Palme~
REVIEWED BY: City Manager ~ff. oJ (4/5tbs Vote: x . No )
The Chula Vista Literacy Team recently received two donations of $2,250 and a grant of $300
for the Literacy program. In addition, a number of the STRETCH and DASH staff took a a first
aid/CPR training class, paying $835 for the class. Therefore, the Department is requesting an
appropriation to pay for additional Literacy services and to offset the cost of the unfunded first
aid/CPR class.
RECOMMENDATION: That Council adopt the resolution amending the FY03 Library
Department Budget by appropriating a) unanticipated donation revenue in the amount of $2,550
for the Literacy program, and b) unanticipated revenue of $835 for the STRETCH program.
BOARDS/COMMISSION: Not applicable.
DISCUSSION:
The Chula Vista Literacy Team received a $1,750 donation from the South Bay Cruisers which
staff recommends appropriating to support the LEAP into Reading after school children's
literacy program, in addition, Altrusa International of Chula Vista, Inc. recently donated $500
for the purchase of supplies for the annual ABC Festival, which was held on October 19, 2002.
The Literacy Team also received a State Library grant of $300 to support the implementation of
thc Equipped for the Future (EFF) Content Framework and Standards, which have been
developed by the National Institute for Literacy to guide the teaching of adult leamers and assess
their progress. All literacy programs are required to follow these new performance standards,
beginning in FY2003-04, in order to continue to receive State Families for Literacy (FFL) funds
in the future.
Finally, a number of the DASH and STRETCH staff completed a first aid/CPR training class
taught by an outside vendor, Sav A Heart. It is staff's responsibility to get this training and many
are able to take this class for free from the Recreation Department. However, due to the large
number of staff needing to take this class prior to the beginning of the school year, many were
unable to be accommodated in the free classes. Therefore, the Educational Services Division
arranged for a vendor to teach the class on site. The cost of the class was not budgeted and the
$835 received in revenue from fees charged to the staff was also not anticipated, and therefore
needs to be appropriated.
FISCAL IMPACT: The one-time $2,550 in donations and grant funds will appropriated for the
Literacy program. The $835 will be appropriated to the STRETCH budget to cover the cost of
the first aid/CPR training class. ~
/
RESOLUTION NO.2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE FY03 LIBRARY
DEPARTMENT BUDGET BY APPROPRIATING
UNANTICIPATED DONATION AND GRANT REVENUE IN
THE AMOUNT OF $2,550 FOR THE LITERACY PROGRAM,
AND UNANTICIPATED REVENUE OF $835 FOR THE
STRETCH PROGRAM
WHEREAS, the Chula Vista Literacy Team recently received a $1,750 donation
from the South Bay Cruisers which staff recommends appropriating to support the LEAP into
Reading after school children's literacy program; and
WHEREAS, Altmsa International of Chula Vista, Inc. recently donated $500 for
the purchase of supplies for the annual ABC Festival, which was held on October 19, 2002; and;
and
WHEREAS, the Literacy Team also received a State Library grant of $300 to
support the implementation of the Equipped for the Future (EFF) Content Framework and
Standards, which have been developed by the National institute f>r Literacy to guide the
teaching of adult learners and assess their progress; and
WHEREAS, in addition, a number of the STRETCH and DASH staff completed a
first aid/CPR training class, paying $835 for the class; and
WHEREAS, the Library is requesting an appropriation to pay for additional
Literacy services and to partially offset the cost of the first aid/CPR cla~, s.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula
Vista does hereby amend the FY03 Library Department budget by appropriating unanticipated
donation and grant revenue in the amount of $2,550 for the Literacy l:rogram and unanticipated
revenue of $835 for the STRETCH program.
Presented by Approved as to form by
David Palmer John~Vl. Kaheny (~ O
Deputy City Manager City Attorney
J:\attorney\reso\donation.lib
PAGE 1, ITEM NO.: /~
MEETING DATE: 11/05/02
CITY COUNCIL AGENDA STATEMENT
ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING CLOSURE OF A PORTION OF CENTER STREET
BETWEEN THIRD AVENUE AND DEL MAR AVENUE FROM 3:00 P.M.
- 8:30 P.M. ON SATURDAY, DECEMBER 7, 2002 AND WAIVING
BUSINESS LICENSE FEES TO THE DOWNTOWN BUSINESS
ASSOCIATION AND VENDORS FOR THE PURPOSE OF HOLDING A
CRAFT FAIR DURING THE STARLIGHT YULE PARADE, WITH
CONDITIONS
REVIEWED BY: CITY MANAGER% ~
BACKGROUND
The Chula Vista Downtown Business Association (DBA) will host the 40,h annual Starlight YuJe Parade
on Third Avenue. This event is the community's primary holiday celebration and is hosted
immediately following the Mayor's annual holiday tree-lighting ceremony. In conjunction with this
year's Parade, the DBA is planning a craft fair on Center Street. In order to facilitate the Fair, the
City is being asked to authorize the street closure.
RECOMMENDATION
It is recommended the City Council adopt the resolution approving the closure of portions of
Center Street between Third Avenue and Del Mar Avenue on Saturday, December 7, 2002
between 3:00 p.m. - 8:30 p.m. and waiving business license fees for the Downtown Business
Association and vendors for the purpose of holding a craft fair during the Starlight Yule Parade,
with conditions.
BOARDS/COMMISSIONS RECOMMENDATION
Not applicable.
The craft fair will feature a variety of vendors located on Center Street in the same area as the
weekly Chula Vista Farmers' Market. The DBA has provided the City liability insurance and a
PAGE 2, ITEM NO.: /~)
MEETING DATE: 11/05/02
hold harmless agreement, which are on file for all of its 2002 events, and has received the
approval of the Chula Vista Police, Fire, Public Works and Recreation departments with the
conditions as listed in Exhibit A of the resolution.
FISCAL IMPACT
Loss of parking fees and business license fees will total less than $100 collectively. The license
fees involved would have been $5 for the DBA and $12.50 for each vendor not already holding
a Ci~7 of Chula Vista business license. The DBA will absorb all costs of the craft fair.
J:\COMMDEV~STAFF.REP\I 1-05~02\CC - Center St closure.doc
COUNCIL RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING CLOSURE OF A PORTION OF CENTER
STREET BETWEEN THIRD AVENUE AND DEL MAR AVENUE
FROM 3:00 P.M. - 8:30 P.M. ON SATURDAY, DECEMBER 7, 2002
AND WAIVING BUSINESS LICENSE FEES TO THE DOWNTOWN
BUSINESS ASSOCIATION AND VENDORS FOR THE PURPOSE
OF HOLDING A CRAFT FAIR DURING THE STARLIGHT YULE
PARADE, WITH CONDITIONS
WHEREAS, the City Council of the City of Chula Vista established a Business Improvement
Area on November 16, 1971, which created the Chula Vista Downtown Business Association
("DBA"); and
WHEREAS, the DBA has requested the temporary closure of portions of Center Street from
Third Avenue to Del Mar Avenue and the waiver of business license fees for the purpose of holding
a craft fair during the annual Starlight Yule Parade on December 7, 2002; and
WHEREAS, the Starlight Yule Parade has been a Downtown and City tradition for 39 years
and the City Council finds that the parade is a benefit to the Community;
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does
hereby approve the closure of portions of Center Street between Third Avenue and Del Mar Avenue
from 3:00 p.m. - 8:30 p.m. on Saturday, December 7, 2002, subject to conditions attached hereto as
Exhibit "A"; and
BE IT FURTHER RESOLVED that the City's Business License Fee for the Downtown
Business Association and vendors participating in the Starlight Yule Parade Craft Fair is hereby
waived.
Presented by Approved as to form by
Chris Salomone John M. Kaheny
Director of Community Development City Attorney
EXHIBIT A
CONDITIONS OF APPROVAL FOR
STARLIGHT YULE PARADE
CRAFT FAIR STREET CLOSURE
DECEMBER 7, 2002
1. At least 10 days before the street closure, the Downtown Business Association (DBA) shall
submit to the City evidence of general liability insurance in the amount of $1 million, in the form
of a certificate of insurance and policy endorsement which names the City as additional insured.
2. At least 10 days before the street closure, the DBA shall submit to the City a hold harmless
agreement in a form acceptable to the City.
3. The DBA shall distribute written notification to all residences and businesses, along the portion
of Center Street that will be closed to traffic, of the date(s) and duration of the event at least 10
days before street closure.
4. The DBA shall be responsible for the coordination and implementation of all activities and
regulations related to the street closure and the Craft Fair and the appropriate City of Chula Vista
departments and staff and any applicable County, State, or Federal requirements.
5. The DBA shall pay for, set-up and remove all signs, barricades, temporary traffic control devices
related to the Craft Fair and temporary street closure in a timely manner (set-up completely by
2:30 p.m. and removal completely by 9:00 p.m.). All traffic control devices, signs, and barricades
shall conform to the State of California traffic control requirements.
6. Prior to the street closure, the DBA shall provide and post "No Parking" signs (in a form
acceptable to the City Traffic Engineer) along the portion of Center Street that will be closed to
traffic. Posting must take place a minimum of forty-eight (48) hours in advance of the effective
time.
7. The DBA shall provide adequate litter control dudng and after the Craft Fair including street
sweeping.
8. The alley between Third Avenue and Church Street shall remain accessible to emergency
vehicles at all times.
9. The street closure shall terminate west of the Norman Park Center
COUNCIL AGENDA STATEMENT
Item No. ] ]
Meeting Date 11/05/02
Item Title: RESOLUTION APPROVING A MASTER LICENSE
AGREEMENT WITH CINGULAR WIRELESS PCS, INC. FOR
THE INSTALLATION AND OPERATION OF UP TO 25 PCS OR
SUBSTANTIALLY SIMILAR FACILITIES ON CITY-OWNED
PROPERTY, SUBJECT TO ALL NECESSARY APPROVALS, FOR
A PERIOD OF 5 YEARS WITH AN OPTION TO RENEW FOR UP
TO FIVE ADDITIONAL 5 YEAR TERMS
Submitted by: SPECIAL OPERATIONS MANAGER~
Reviewed By: CITY MANAGER (~J (4/5th~ Vote: Yes__ No X )
Background
The City Council approved Resolution 18601 on March 18, 1997 conceptually approving the
marketing of City properties for use by telecommunications companies. On September 16, 1999
the City Council approved Master License Agreements with AT&T and Sprint for installation
and operation of up to 50 cell sites on City property. Since this time, staffhas been working with
a number of companies to explore the possibilities o£1ocating additional cell sites on City owned
property.
Cingular is a mobile phone service provider that is expanding its coverage in the South Bay
region and is interested in locating facilities on City-owned properties. Staff is recommending
that the City enter into a Master License Agreement with Cingular. The Agreement will allow
Cingular to install and operate up to 25 wireless telephone facilities (PCS) each in the City of
Chula Vista for a period of 5 years with an option to renew up to five additional 5 year terms (see
Attachment 1).
RECOMMENDATION
Approve the Master License Agreements with Cingular for the installation and operation of up to
25 PCS or substantially similar facilities on City owned property for a period of five years with
an option to renew for up to five additional 5~year terms. Further authorize Staff to reduce the
rate charged to Cingular and other Licensee's by up to 40% to reduce land use and aesthetic
impacts by under grounding cabinets or other equipment.
BOARDS/COMMISSIONS RECOMMENDATION
Not applicable.
PAGE 2, ITEM fJ
MEETING DATE 11/05/02
DISCUSSION
MASTER LICENSE AGREEMENT: The Master License Agreement allows Cingular to install up to
25 PCS facilities each on City owned property and to operate within the scope of this Agreement
for a period of 5 .years. The Agreement allows for up to five additional five year terms each,
with the written request of Cingular and the subsequent written approval of the City Manager.
Prior to the renewal of each five-year term, the annual license fee is subject to renegotiation to
ensure that the City is receiving market value for its facilities. The City is able to terminate this
License upon 12 months notice, at any time after the initial five-year term.
Cingular will be paying an annual license fee of approximately $20,400 ($1,700 per month) for
the use of City property for the operation of each facility that includes up to 7 equipment
cabinets and 12 antennas. In some instances, Cingnlar will only have a requirement for antennas
or cabinets alone. The annual license fee for those facilities will be less. Staff is also requesting
authority to reduce these rates by up to 40% with Cingular and other contractors if they propose
projects that under ground the appurtenances or take other similar measures to reduce the
impacts to land use and aesthetics.
Cingular is required to comply with all applicable laws. The Schedule of Premises shall be
administratively approved fore each site and contain specific conditions that must be satisfied
and maintained in order to user the wireless facility. The Schedule of Premises will be submitted
to the Zoning Administrator and cimulated to all appropriate departments. Furthermore, property
owners near a proposed site will be notified prior to the Zoning Administrator's decision on
whether to approve a location. All of Cingular construction, installation, maintenance and
removal of the PCS facilities will be at their sole responsibility and cost. If Cingular causes any
damage to the public right of way or City property, they are required to promptly repair it at their
sole cost. Cingular will not be allowed to activate their site until the City signs off on final
construction. The Agreement provides for a number of risk mitigation measures for the City
including: indemnity; insurance requirements; limitation on remedies available to Cingular in the
event ora City breach; and reservation of the City's emergency and police powers.
The City collects Utility Users Tax from mobile phone service providers and the Agreement
provides for Cingular to collect the tax from the service users and remit the tax to the City.
IMPACTS ON CITY PROPERTY-' The installation will vary depending on the site Cingular needs.
As mentioned all installations will be required to receive all applicable permits and they will
work closely with the Special Operations Manager and a representative from the host department
to assure that they do not interfere with City operations or facility maintenance. The two
primary types of installations are building mounted and ground mounted. Building mounted
installations generally involve mounting antennas on the faqade or on the roof of the building, in
addition to accommodating equipment cabinets on the ground or on the roof. Ground monnted
applications involve construction of a "monopole" or more stealth applications where the
monopole is disguised within artificial palm or pine trees and flagpoles. In this case the cabinets
are generally mounted on a concrete slab adjacent to the antenna structure. The largest size
PAGE 3~ ITEM //
MEETING DATE 11/05/02
cabinet systems use an area of approximately 10 by 20 feet. Both applications will require some
trenching and cabling. The installations will require maintenance and administration on a
limited basis. All proposed facilities would be required to secure all necessary land use, building
and engineering permits. Staff will encourage Cingular to tmdergrotmd the cabinets and other
structures whenever possible.
FINANCIAL BENEFITS: Cingular will be paying an annual license fee to the City General Fund
for each system installed. Cingular's annual license fee for a typical application including both
antennas and cabinets is approximately $20,400. The Master License Agreement authorizes up to
25 PCS facilities, by Cingular. The annual fee increases by 3% a year, and will be renegotiated
prior to the renewal of each five-year term to ensure the City is receiving market rate rent.
FISCAL IMPACT
The Master License Agreement authorizes up to 25 PCS facilities at a yearly rate for each facility
of up to $20,400. Presently there are three City properties being considered representing an
annual income of up to $61,200. The three proposed sites are going or soon will be going
through the entitlement process, and should be operational mid-year 2003. There will be some
staff time associated with monitoring and ensuring compliance with the Agreement.
//-,5
RESOLUTION NO.2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A MASTER LICENSE
AGREEMENT WITH CINGULAR WIRELESS PCS, INC. FOR THE
INSTALLATION AND OPERATION OF UP TO 25 PCS OR
SUBSTANTIALLY SIMILAR FACILITIES ON CITY-OWNED
PROPERTY, SUBJECT TO ALL NECESSARY APPROVALS, FOR
A PERIOD OF 5 YEARS WITH AN OPTION TO RENEW FOR UP
TO FiVE ADDITIONAL 5-YEAR TERMS
WHEREAS, the City Council approved Resolution 18601 on March 18, 1997 conceptually
approving the marketing of City properties for use by telecommunications companies; and
WHEREAS, on November 16, 1999 (via Resolution 19652) the City Council approved
Master Communications Site License Agreements with Sprint and AT&T for installation and
operation of up to 50 ~vireless telecommunication sites on City property; and
WHEREAS, Cingular Wireless is a wireless telecommunication service provider that is
expanding its coverage in the South Bay region and is interested in locating facilities on City-owned
properties; and
WHEREAS, staffis recommending that the City enter into a Master License Agreement with
Cingular Wireless to install and operate up to 25 wireless telecommunication facilities on City-
owned property for a period of 5 years with an option to renew up to five additional 5-year terms.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does
hereby approve and authorize the Mayor to execute the Master Communications Site License
Agreement with Cingular for the installation and operation of up to 25 wireless telecommunication
facilities on City-owned property, on the terms and in the forms presented, with such minor
modifications as may be approved or required by the City Attorney, copies of which shall be kept on
file in the office of the City Clerk; and
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized and directed to execute said Agreement for and on behalf of the City of Chula Vista; and
BE IT FURTHER RESOLVED that all revenues derived from this Cingular License
Agreement shall be deposited in the City's General Fund.
Presented by Approved as to form by
Michael Meacham John M. Kaheny
Special Operations Manager City Attorney
J:\Attomey\RESO\Cingular Master License
//-5/'
MASTER COM3,IUNICATIONS SITE LICENSE AGREEMENT
THIS MASTER COM3AUNICATIONS SITE LICENSE AGREEMENT ("License") dated as of
, 2002 ("Effective Date"), is entered into between PACIFIC BELL WIRELESS, LLC, A
NEVADA LIMITED LIABILITY COMPANY, d/b/a CINGULAR WIRELESS ("Cingular"), and the CITY oF
CHULA VISTA, A MLrN~CIPAL CORPORATION ("City") with reference to the following facts.
A. Cingular wishes to attach, install, erect, operate, and maintain up to twenty-five (25) various unmanned .
wireless telecommunications facilities, or substantially similar facilities, on public property under the
ownership and/or control of the City for purposes of providing wireless communications services.
B. City is willing to allow Cingular to attach, install, erect, operate and maintain the Facilities subject to the
terms and conditions set forth herein and in the site specific Schedule of Premises.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, thc parties agree to the following covenants, terms, and conditions:
1. DEFINITIONS:
1.1. Licensed Premises or Premises: The City owns in fee, or .controls th_rough easement rights,
certain real property located in the City of Chula Vista, California. Portions of such property shall be
described in a Schedule (as defined below) approved by the City and attached hereto. The property
described in such Schedules shall constitute and be described and collectively referred to herein as the
"Licensed Premises" or "Premises." Licensed Premises shall include any appurtenant proper~ the City
owns, or controls on which Cingular installs utility and transmission lines with City's prior approval
pursuant to Section 2.4 below.
1.2. Schedule: Attached hereto and incorporated herein by reference shall be various Schedules of
Licensed Premises (hereinafter "Schedule"). Each Schedule shall be substantially in the form attached
hereto as Exhibit B and shall include thc description of the specific Cingular Improvements (described
below) or light standards allowed on thc License Premises, its configuration, and the site specific
conditions necessary for approval (hereinafter "Conditions of Approval"). Both parties agree that
Schedules may be added or deleted by administrative action by City from time to time subject to and in
accordance with the provisions of this License, including but not limited to Section 5.3 regarding
Governmental Approvals. No more than 25 Schedules may be in effect at any one time. Both parties also
agree that the City may add to, delete or modi~ the Conditions of Approval at any time during the term
of the this Agreement to advance a legitimate and reasonable governmental interest.
1.3. Pre-existing Communications: "Pre-existing Communications" shall be defined as those
communications configurations, equipment and frequencies which exist on City's property or are in use
by thc City within or around the City as of the Effective Date of this License or as of a Commencement
Date of an applicable Schedule.
1.4. Cingular Improvements or Cingular's Improvements: Cingular Improvements shall be
defined to be those unmanned wireless telecommunications facilities comprised of radio fi:equency
transmitting and receiving equipment, antennas, cables, conduits, wires, batteries, utility lines,
transmission lines, radio frequency transmitting and receiving antennas and supporting structures and
improvements, which are approved by the City and which are located or proposed to be located per this
License, on Licensed Premises. A typical example of the facilities comprising the Cingular
Improvements is set forth in Exhibit A, attached hereto. Cingular Improvements shall exclude light
standards or poles located in City rights-of-way, whether or not said light standards or poles are installed
Chula Vista / Cingular
Master Cornm. Site License //~ ~::~' Page I of 18
by City or Cingular. Such excluded improvements shall be owned by City.
1.5. Commencement Date: Upon execution hereof by all parties hereto the Commencement Date of
this License shall be the Effective Date. The Commencement Date of this License with respect to each
individual Licensed Premise shall be as specified in each related Schedule.
2. PREMISES AND LICENSED USES
2.1. Grant of License. Subject to the following terms and conditions and each Schedule's site
specific Conditions of Approval, City hereby grants to Cingular a non-exclusive license to the Premises
as depicted in the Schedules attached hereto and incorporated herein from time to time. Each Schedule
executed hereunder shall be substantially in the form of Exhibit B.
2.2. Use. The Premises may be used by Cingular solely for the transmission and reception of non-
franchised wireless telecommunication signals on various frequencies and the construction, maintenance
and operation of City-approved Cingular Improvements.
2.3~ Pre-Construction; Testing. Cingular shall have the right (but not the obligation) at any time
following the full execution of this License and prior to the Commencement Date under each Schedule to
enter the Premises for the purpose of making necessary inspections, engineering surveys (and soil tests
where applicable) and other reasonably necessary tests (collectively "Tests") to determine the suitability
of the Premises for Cingular Improvements and for the purpose of preparing for the construction of
Cingular Improvements at no expense to City. During any Tests or pre-construction work, Cingular shall
have the insurance coverage set forth in Section 4.4, Insurance. Cingular shall prov/de the City with
prior notice of any proposed Tests or pre-construction work and will coordinate the scheduling of same
with City. Cingular, at Cingular sole cost and expense, will restore the Premises to the same condition as
existed prior to any such tests or pre-construction work by Cingular.
2.4. Installation of Cingular Improvements.
2.4.1. In General. This License grants to Cingular the right to construct, maintain and operate
Cingular Improvements on the Licensed Premises subject to the terms and conditions set forth
herein and those Conditions of Approval found in each Schedule. All of Cingular construction
and installation work shall be performed at Cingular sole cost and expense and in a good and
workmanlike manner. Title to Cingular Improvements shall be held solely by Cingular, and all of
Cingular Improvements shall remain the personal property of Cingular and shall not be treated as
real property or become a part of any Premises even though affixed thereto. All street light
standards on property owned or controlled by the City, whether installed pursuant to this License
by City or Cingular, shall be owned by the City. Phor to installation and operation of each set of
Cingular Improvements, Cingular must obtain any and all required federal, state and local permits
required for such installation and operation. City permits required include, without limitation,
building permits and an approved Schedule. City shall exercise its best efforts to process
Improvements applications within forty-five (45) days after the submittal of a completed
application. In addition, all work shall be scheduled in advance and coordinated with parks
operations personnel, onsite recreational staff, Public Works, Engineering or other City staff as
appropriate prior to commencement of the work to minimize the potential for conflicts with
recreation and other City programs or activities occurring on the site. The applicant agrees that
the site will not be activated until the City has signed off on final construction, which sign off
shall not be unreasonably withheld or delayed. Absent such sign off, Cingular shall have recourse
to an appeal to the City Manager.
Chula Vista / Cingular
Master Comm. Site License ~ ~ Page 2 of 18
//
2.4.2. Location of Ciagular Improvements. The location of Cingular Improvements on
Licensed Premises shall be subject to the Zoning Administrator's prior approval. In deciding
whether to approve a location, the Zoning Administrator will take into consideration City's goal
to assure that wireless telecommunication networks are completed with the fewest possible
facilities, in the least visible fashion, and with the least disruptive impact on neighborhoods and
communities within the City of Chula Vista. For example, denying or conditionally approving a
location to preserve and enhance the aesthetic qualities of the City of Chula Vista shall not be
deemed unreasonable. City approval shall be deemed given once the Zoning Administrator has
approved the Schedule of Licensed Premises with associated Conditions of Approval.- Absent
such approval, Cingular shall have recourse to an appeal to the City Manager. It is understood
that both parties will work together to find the optimum location for Cingular's antennas on the
Licensed Premises that have the least impact to City and private property.
Even though approval of Cingular Improvements will generally be handled administratively, the
City Council shall have the authority, on its own motion and before construction of the Cingutar
Improvement begins, to approve, conditionally approve, or deny the location of a Cingular
Improvement on the Licensed Premises - regardless of whether the Cingular Improvement was
previously approved by the Zoning Administrator or City Manager.
Cingular agrees to reimburse City for the reasonable costs, including reasonable administrative
overhead, of processing the approval of each Schedule. The process for reimbursement shall be
conducted in the same or similar mariner as the City's processing of a non-administrative
conditional use permit.
2.4.3. Utilities. Cingular shall have the right to install utilities which are necessary for the
operation of Cingular Improvements, at Cingular expense, and to improve the present utilities on
or near the Premises (including, but not limited to the installation of emergency back-up power).
Such utilities shall be subject to City approval and removal in the same manner as other Cingular
Improvements as prov/ded in Section. 2.4.2, and 2.10, respectively. Cingular shall fully and
promptly pay for all utilities furnished to the Premises for the use, operation and maintenance of
Cingular Improvements. Payment of all costs for said utilities' deactivation and removal,
including any costs, which would survive the term of said License or Schedule, shall be the
exclusive obligation of Cingular. Cingular Improvements shall include separate utility meters.
2.4.4. Street Light Standards. In the case of installations on street light standards or mast
arms, Cingular shall comply with all applicable City regulations for the installation of streetlights.
If the installation is to be done via replacemedt~ of an existing standard and/or mast arm, said
replacement shall meet the same regulations as were applied to the existing standard and/or mast
arm and be completed to the satisfaction of the Zoning Administrator. Said regulations shall
include, but not be limited to, the form, size, strength and construction materials specified for
City street lights. Consistent with the City's lawful exercise of police powers, such regulations
may be amended at the City's sole and absolute discretion including, but not limited to, allowing
for additional space for internal wiring of City and/or Cingular or, altered foundation
requirements to accommodate joint City and Cingular uses, or other technical reasons; provided
that (i) City shall pay costs to modify street light standards or mast arms which it owns in
accordance with such amended regulations and (ii) Cingular shall pay all costs to modify
Cingular's Improvements as required by such amended regulations. In making any such
amendments, City shall use reasonable efforts to accommodate and not materially adversely
impact the functioning of existing Cingular Improvements. In the event the amended regulations
make existing Cingular Improvements unusable by Cingular, then City shall use reasonable
efforts to provide a suitable alternate location. Upon reasonable notice and written request by the
Chula Vista / Cingular
Master Comm. Site License Page 3 of 18
//-7
Zoning Administrator, Licensee shall provide a replacement pole that is pre-approved by the City
Engineer and shall deliver the existing pole to the City Corporation Yard or some other suitable
site within the City designated by the City Engineer. The. design of the pole, method of
attachment for Licensee's equipment and all other connections shall meet the specifications
reasonably required by the Zoning Administrator.
2.4.5. Compliance with Laws. Cingular's Installation and operations of Improvements must
comply with any and all applicable federal, state and local laws. Installation of improvements in
or near the public fight of way shall meet the requirements of the Americans with Disabilities Act
with regard to minimum clearance and public use of sidewalk areas.
2.4.6. Restoration. If any City sidewalk is disturbed in the course of installation, Cingular
shall replace said sidewalk from cold joint to cold joint from each direction from the disturbed
area and to the satisfaction of the City Engineer. If any existing landscaping, irrigation systems,
utilities or other City facilities are disturbed in the course of installation, Cingular shall replace
and restore said property to its pre-installation condition.
2.4.7. Maintenance. Maintenance of the Cingular Improvements shall be the sole
responsibility of Cingular during the entire term of this License, and Cingular agrees to keep all
Cingular Improvements in good condition and repair.
2.5. Access.
2.5.1. Cingular and Cingular employees, agents, contractors and subcontractors shall have
access to the Premises twenty-four, (24) hours per day, seven (7) days per week, at no charge to
Cingular, subject to the conditions set forth in each Schedule. City hereby licenses to Cingular all
rights of ingress and egress held by City to the extent required to construct, maintain, install and
operate Cingular Improvements on the Premises. Cingular's exercise of such rights shall not
cause undue inconvenience to City.
2.5.2. In connection with installations on light standards, mast arms or poles, Cingular shall
provide at least seven (7) days written notice to the City Engineer of installation date and time.
Cingular shall pay any and all costs associated with City shut off and reconnect of power to
Premises, installation oversight and/or inspections if City reasonably deems necessary.
2.5.3. In connection with Cingular's maintenance of Cingular Improvements on street light
standards, mast arms or poles, Cingular shall provide at least twenty four, (24) hours notice to the
City Engineer and pay City any and all costs associated with City shut off and reconnect of power
to Premises, maintenance oversight and/or inspections if City deems reasonably necessary. In
case of need for emergency maintenance of Cingular Improvements, Cingular shall use its best
efforts to give prior notice to City Engineer but shall notify City of such work as promptly as
reasonably possible after the work is commenced.
2.5.4. In connection with City's maintenance to street lights which share a standard or mast arm
with such installations, City shall use its best efforts to provide Cingular at least twenty four (24)
hours notice of said maintenance. If City desires to have a technician of Cingular on site during
said maintenance, Cingular shall provide said technician upon at least twenty four, (24) hours
notice. In case of need for emergency maintenance of City's street lights which share a standard
or mast arm with such installations, City need not give prior notice to Cingular but shall notify
Cingular of such work as promptly as reasonably possible after the work is commenced.
Chula Vista / Cmgular
Master Comm. Site License //~ Page4 of 18
2.6. Interference with Communications.
2.6.1. Cingular Improvements at any given Premises shall not interfere with Pre-existing
Communications (determined with respect to such Premises at the date the Schedule for such
Premises is executed). Cingular Improvements shall also comply with all noninterference rules
of the Federal Communications Commission ("FCC").
2.6.2. Any radio equipment installed by Cingular on the Premises shall be frequency compatible
with all radio transmitting and receiving equipment existing and in use on the Premises at the
time initial installation of such equipment is made. In the event Cingular installation
electronically or physically interferes with City's installation already existing on the Premises,
Cingular shall take all necessary steps, at its own cost and expense, to eliminate such interference,
whether so reqtftred by the FCC or not.
2.6.3. Except to the extent necessary to install, operate or maintain public improvements, or in
the event of an emergency, the City shall not knowingly interfere with the location, configuration,
frequency or operation of Cingular Improvements except in the case of Pre-Existing
Communications that do not materially change their power level, frequency or location. In the
event any equipment installation by City made subsequent to Cingular's installation causes
interference with the location, configuration, frequency or operation of Cingular Improvements,
City shall exercise reasonabIe best efforts to eliminate such interference after learning of such
interference, whether required by the FCC or not.
2.6.4. Notwithstanding any other provision in this License to the contrary, in the event of an
emergency, City shall have the right, in its sole discretion, to take such action it determines in its
sole discretion is necessary under the circumstances to address the emergency, even though such
actions may cause interference with Cingular Improvements or the operation thereof. If City
must take action which causes or may cause interference, City shall endeavor to (a) give Cingular
oral notice of such action as quickly as practicable and (b) to the extent practicable under the
circumstances, upon notice by Cingular of the existence of interference, minimize the duration
and extent of such interference.
2.6.5. City shall have the responsibility to cooperate with Cingular to identify and remedy to the
extent reasonably necessary, any interference with the communications operations of Cingular
described in Sections 2.6.3 and 2.6.4, above.
2.6.6. Subsequent to the installation of Cingular Improvements, City shall not permit its
licensees or future licensees to install new equipment on the Licensed Premises or property
contiguous thereto owned or controlled by City, if such equipment is likely to cause interference
with Cingular's operations. Cingular shall cooperate in good faith with City to determine
whether such interference is likely 'to be caused by the prospective future licensee. For purposes
of this Section 2.6, the existence of electronic and physical interference shall be reasonably
determined by City and Cingular. In the event Cingular reasonably determines the likelihood of
interference by newly installed facilities, City shall direct the party installing such facilities to
meet and confer with Cingular in order to develop an approach or design that eliminates or
materially reduces the potential for interference. Notwithstanding the foregoing, Pre-existing
Communications operating on the Commencement Date that do not measurably change from this
power level, frequency or location on the Commencement Date shall not he deemed to be
interfering at any time.
2.6.7. Cingular agrees to notify immediately the Director of Public Works of the City of any
Chula Vista / Cingular
Master Comm. Site License .~ ~ Page 5 of 18
//
7
changes in Cingular frequencies to be used at the Premises.
2.7. Liens. Cingular shall keep the Premises flee and clear of any and all liens or claims of liens and
charges on account of labor and materials used in or contributing to any work performed by or related to
this License, failing which City shall have the right, but not the obligation, to discharge any or all such
liens or claims, and Cingular shall, upon demand therefor, reimburse City for all costs and expenses
incurred by City.
2.8. Removal of Cingular Improvemenis; Damage or Destruction.
2.8.1. Upon expiration, cancellation or termination of this License or any Schedule hereunder,
Cingular shall be responsible for: (a) removing from the Premises subject to such expiration,
cancellation, or termination, at its sole cost, all Cingular Improvements except those which the
parties agree shall not be removed or shall be transferred to City, (b) repairing, at its sole cost, all
damage caused by such removal, and (c) surrendering the Premises to City in the Premises'
original condition, ordinary wear and tear and damages caused by third parties excepted. Said
return of Premises in their original condition shall include Cingular's remediation of any
hazardous or toxic material discharge at the Licensed Premises caused by Cingular or its agents
and shall be to the reasonable satisfaction of the City.
2.8.2. Within 30 days after the date this License or an applicable Schedule expires or otherwise
terminates, Cingular at its expense shall remove all Cingular Improvements from the affected
Premises; provided that if five or more Schedules expire or terminate contemporaneously, then
Cingular shall have a reasonable amount of additional time to remove the affected Cingalar
Improvements so long as Cingular is diligently proceeding with removal. Any Cingular
Improvements remaining on affected Premises beyond the time period available for removaI as
set forth above shall, at the sole discretion of the City, either (a) in whole or in part become City
property (b) in whole or in part be removed and disposed of by City, with the reasonable costs of
said removal and disposal, including reasonable administrative overhead, to be reimbursed to City
by Cingular within ten days after Cingular receives City's request for reimbursement together
with reasonable evidence of the cost.
2.8.3. If the Premises consist of a light standard, mast arm or pole and the same is damaged,
knocked down or destroyed from any cause, the following provisions shall apply:
a. If the damage or destruction renders Cingular unable to conduct normal
operations and a temporary site is not available per subsection f. below, the fee
for such Premises shall abate in full from the date such damage or destruction
occurs until Cingular is able to commence normal operations; provided that
Cingular shall have no right to abatement if the damage or destruction is caused
by Cingular or its agents negligence or willful misconduct.
b. Non-replacement in case of damage. If Cingular chooses to terminate the use of
any Licensed Premises suffering such damage, Cingular shall notify the City
Engineer of such decision within ten (10) days after notice of such damage.
Cingular shall comply with all terms of this agreement concerning removal of
Cingular improvements. Cingular shall be responsible for any removal or
replacement of wiring, foundation or other associated facilities that may be
required to accommodate the replacement facilities. If this option is chosen by
Cingular, Cingular shall not be obligated to replace or pay to replace the
damaged light standard, mast arm or pole.
Chula Vista / Cingular
Master Comm. Site License Page 6 of 18
//-/0
c. Immediately following the damage or destruction, City shall exercise its best
efforts to notify Cingular in writing thereof and shall commence and thereafter
continue diligent efforts to repair or replace the light standard, mast ann or pole;
provided that City shall have no obligation to repair or replace the light standard,
mast arm or pole if (i) the City, determines, in good faith, that the facility is no
longer required or desirable to serve the public health, safety and welfare and that
the City has no existing or foreseeable intention of replacing or repairing the
facility, or (ii) the damage or destruction occurs during the last 12 months of the
Term or any Renewal Term, and Cingular does not, within 10 days after
receiving City notice of such destruction fails to exercise any option to extend or
renew which may then be available regarding the subject Premises hereunder.
d. If within ten days after written notice from Cingular of damage City has not
commenced to repair or replace, then Cingular shall have the fight, but not the
obligation, to repair or replace the pole or light standard to the conditions existing
immediately prior to the damage or destruction (or to any better condition
consistent with the City's then-existing standards and regulations for design and
construction of similar facilities); provided that Cingular shall have no obligation
to restore any City operations served by the .light standard, mast arm or pole
unless the damage or destruction is caused by Cingular or its agent's negligence
or willful misconduct. Cingular shall perform such work using only contractors
approved by the City. Cingular shall complete such work as expeditiously as
reasonably possible, subject to complying with the provision of Section 2.4,
above.
e. If Cingular repairs and replaces pursuant to subsection d. above, then the City
shall reimburse Cingular for all its reasonable costs of repair and replacement,
provided that (i) City shall have no obligation to reimburse if the City timely
decides in good faith not to repair or replace pursuant to subsection c. above or if
the damage or destruction is caused by the Cingular or its agent's negligence or
willful misconduct, and (ii) City shall not be required to pay more than the cost
of repair and replacement the City would have incurred had the City contracted
for the work using its customary method of procurement and customary time
frame for the type of work in question. Reimbursement shall be due and payable
within 30 days after receiving Cingular's request for reimbursement together
with reasonable evidence of the costs. Cingular shall have the fight to offset
license fees under all Schedules by the amount of any reimbursement owing but
not timely paid. If the City timely decides in good faith not to repair or replace
pursuant to subsection c. above, then all such work by Cingular shall be at its
sole expense, but Cingular shall have the option to remove or leave in place any
new or replacement light standard, mast arm or pole upon expiration or
termination of the applicable Schedule.
f. If Cingular is rendered unable to conduct normal operations due to damage, or
destruction, City shall use reasonable efforts to identify and make available to
Cingular, within ten days following the damage or destruction, a temporary site
owned or con~:olled by City which in Cingular's judgment is equally suitable for
Cingular's intended uses (subject to public safety issues). Cingular may
construct and operate substitute Cingular's Improvements thereon until the
Premises are fully repaired and available to Cingular.
Chula Vista / Cingular
Master Comm. Site License Page 7 of 18
2.9. Termination.
2.9.1. Neither this License nor any Schedule shall be revoked or terminated during the Term or
any Renewal Term except as expressly stated in this Licansc.
2.9.2. This License may be terminated by either party for any or no reason by delivering to the
other party, at any time after the initial five (5) year term of this License, written notice of
exercise of this right to terminate (the "Exercise Notice"). If this right to terminate is exercised,
termination of this License shall be effective 12 months after the Exercise Notice is delivered to
the other party From and after the date the Exercise Notice is delivered to thc other party until the
effective date of termination, Cingular shall have no right to receive any further Schedule
attachments to add Licensed Premises that were not executed prior to delivery of the Exercise
Notice. Notwithstanding the foregoing, City retains the right to disapprove extensions of this
License beyond the first five-year term as provided in Section 3.1 hereof.
2.9.3. Cingular shall have the right to terminate a Schedule on 30 days prior written notice to
City (or any shorter notice expressly set forth below), if:
a. Cingular delivers to City such 30-day written notice at any time prior to the
Commencement Date under such Schedule for any reason or no reason;
b. Cingular determines at any time after the Commencement Date under such
Schedule that any governmental or non-governmental license, permit, consent,
approval, easement or restriction waiver that is necessary to enable Cingular to
install and operate Cingular Improvements cannot be obtained at acceptable
expense or in an acceptable time period;
c. Cingular determines at any time after the Commencement Date under such
Schedule that the Premises are not appropriate or suitable for Cingular operations
for economic, environmental or technological reasons, including without
limitation, any ruling or directive of the FCC or other governmental or regulatory
agency, or problems with signal strength or interference not encompassed by
Section 2.9.3.d. below; provided that if Cingular exercises the right to terminate
under this subsection, Cingular shall pay City (or City may deduct from any
rebate due Cingular) as a termination fee 25% of the then Annual Fee for the
subject Premises;
d. Any Pre-existing Communications, or any communications facilities or other
structures of any kind now or hereafter located on or in the vicinity of the subject
Premises, interfere with the location, configuration, frequency or operation of
Cingular Improvements and Cingular is unable to correct such interference
through reasonably feasible means;
e. City commits a default under this License with respect to such Schedule and fails
to cure such default within the 30-day notice period, provided that if the period to
diligently cure takes longer than 30 days and City commences to cure the default
within the 30-day notice period, then City shall have such additional time as shall
be reasonably necessary to diligently effect a complete cure.
f. The Premises under such Schedule are totally or partially damaged, knocked
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Master Comm. Site License Page 8 of 18
I1 1)
down or destroyed fi.om any cause (other than due to Cingular or its agent's
negligence or willful misconduct) so as, in Cingular judgment, to hinder Cingular
normal operations and City does not provide to'Cingular within 10 days after the
casualty occurs a suitable temporary location site for Cingular Improvements
pending repair and restoration of the subject Premises.
2.9.4. City shall have the right to terminate a Schedule if:
a. Cingular commits a default under this License Agreement with respect to such
Schedule and fails to cure such default within (i) ten business days after Cingular
receives written notice of the default where the default is a failure to pay the
annual fee for the subject Premises when due, or (ii) 30 days after Cingular
receives written notice of any other default and fails to cure such default,
provided that if the period to cure takes longer than 30 days and Cingular
commences to cure the default within the 30-day notice period, then Cingular
shall have such additional time as shall be reasonably necessary to diligently
effect a complete cure. A violation of the Schedule's Conditions of Approval
shall be deemed a default for purposes of this subsection;
b. The Premises are wholly or partially damaged or destroyed so as to interfere with
Cingular's normal operations, City has no obligation to repair under 2.8.3. above
and neither party elects to repair pursuant to Section 2.8.3. above; or
c. The City Manager determines in good faith that there exists an immediate and
substantial threat to public health and safety due to particular circumstances
affecting the Premises which cannot be rectified through means less onerous than
termination (such as temporary emergency cessation of use by Cingular pending
corrective work), in which case termination shall take effect 48 hours after the
Cingular receives written notice of termination setting forth the City Manager's
determination and the reasons therefor.
2.9.5. A Schedule shall automatically terminate as of the date ~vhen possession is delivered to
any governmental authority pursuant to the exercise of its power of eminent domain over the
subject Premises of such portion thereof as is sufficient, in Cingular's good faith opinion, to
render the Premises unsuitable for Cingular's normal operations, or pursuant to a transfer of the
subject Premises or such portion thereof under threat or in lieu of exercise of such power.
2.9.6. Upon termination of this License, neither party shall have any further rights, obligations
or liabilities to the other except: (a) with respect to provisions of the License which by their sense
and context survive termination; and (b) with respect to the rights and remedies of the parties
relating to the period prior to termination. Upon termination of any Schedule, neither party shall
have any further rights, obligations or liabilities to the other respecting such Schedule or the
Premises thereunder except: (i) with respect to provisions of this License applicable to such
Schedule which by their sense and context survive termination; (ii) where termination is by
reason of breach or default of the other party; and (iii) with respect to the rights and remedies of
the parties relating to the period prior to termination.
3. TERM
3.1. Term.
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Master Comm. Site License Page 9 of 18
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3.1.1. The initial term of this License shall begin on the Effective Date and shall expire on the
date which completes five (5) years after the Effective Date, unless it is earlier terminated by
either party in accordance with the provisions herein. The term of this License may be extended
for up to ftve (5) additional successive terms of five (5) years (each a "Renewal Term") on the
same terms and conditions as set forth herein, except as the Annual Fee may be adjusted as
provided in Section 4.1, below. Subject to the term'mation rights set forth in Section 2.9, above,
this License shall automatically be extended for each successive Renewal Term unless Cingular
notifies City of its intention not to renew prior to commencement of the succeeding Renewal
Term.
3.1.2. Subject to the maximum overall License term of 30 years set forth above, the term of any
Schedule shall be as follows: A Schedule shall continue in effect for five years fi:om said
Schedule's Commencement Date; provided that Cingular shall have the right to extend the Term
of such Schedule for five (5) additional periods of five (5) years (the "Renewal Term"). The
Renewal Terms shall be on the same terms and conditions as the first Term except that the
Annual Fee may be adjusted as provided in Section 4.1, below. Each Schedule shall be
automatically extended for each successive Renewal Term unless Cingular notifies the City in
writing of Cingular's intention not to extend such Schedule at least 90 days Prior to expiration of
such Schedule's Term.
4. COMPENSATION AND LIABILITY
4.1. Payment.
4.1.1. In consideration for the use of each Licensed Premises, Cingular agrees to pay City (to be
deposited in the City's general fund) an annual fee ("Annual Fee") per Licensed Premises during
the initial term of this License as follows:
a. Cingular facilities that include up to seven (7) equipment cabinets and up to
twelve (12) Antennas approximately 52 inches in height, in addition to necessary
cables, electrical power, telephone service, and other necessary fixtures for the
period fi:om the Commencement Date of this License through December 3I,
2003, in the amount of $19,800 ($1,650 per month); and/or
b. Cingular facilities that include only up to seven (7) equipment cabinets, in
addition to necessary transmission cables, electrical power, telephone service and
other necessary fixtures for the period from the Commencement Date of this
License through December 31, 2003, in the amount of $11,400 ($950 per month);
and/or
c. Cingular facilities that include only up to twelve antennas approximately 52
inches in height, in addition to necessary transmission cables, electrical power,
telephone service, and other necessary fixtures for the period from
Commencement Date of this License through December 31, 2003, in the amount
of $8,400 ($700 per month); and/or
d. Cingular facilities that include only up to two antennas approximately 52 inches
in height, in addition to necessary transmission cables, electhcal power,
telephone service, and other necessary fixtures and limited to one above ground
cabinet/pedestal of not more than 9 cubic feet, for the period from
commencement Date of this License through December 31, 2003, in the amount
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Master Comm. Site License Page 10 of 18
of $3,000 ($250 per month).
e. The City may at its sole discretion decrease any of the fees listed above by up to
40% for under grounding cabinets or pedestals in a manner that by the City's sole
judgment reduces the impact to land use and/or aesthetics.
f. For each calendar year thereafter throughout the initial term, an amount equal to
103% of the Annual Fee for the immediately preceding calendar year.
4.1.2. Upon written request of City or Cingular, the Annual Fee for any Renewal Term shall
equal the then fair market rental rate (the "FMRR") that a willing licensee would pay and a
willing licensor would accept for the use of similar installation locations for similar
telecommunications equipment for the same five-year period. The FMRR shall be in the same
amount for each of the Licensed Premises. If the City and Cingular are unable to agree on the
FMRR within 180 days prior to expiration of the term preceding a Renewal Term of this License,
then at the request of either party, both parties shall attempt in good faith to appoint a real estate
appraiser with at least five years' experience in the area in which the Licensed Premises are
located to appraise and set the FMRR. If the parties are unable to agree upon such an appraiser
within 15 days after either party requests appointment, then the parties hereto agree that an
appraiser shall be promptly determined in accordar~ce with the.rules o? the American Arbitration
Association. Within 30 days after the appraiser is selected, he or she shall investigate and report
to the parties in writing his or her determination of the FMRR. The appraiser may in his or her
sole discretion choose to meet with the parties and take testimony, and may extend the time for
determining the FMRR by not more than 15 days. The appraiser's determination shall be final
and non-appealable, absent fraud. If Cingular is dissatisfied with the determination of FMRR,
then Cingular shall have, as its sole and exclusive remedy, the right to rescind its exercise of the
option to renew and allow this License and the then-existing Schedules to expire at the later of the
end of the initial term of this License or 90 days after the appraiser issues his or her report on
determination of the FMRR (the "Delayed Expiration Date"). The Annual Fee during the period,
if any, from and after expiration of the initial term of this License to the Delayed Expiration Date
shall be the FMRR, prorated for such time period. If the FMRR is not yet determined by
expiration of the initial term of this License, then Cingular shall pay the Annual Fee at the at the
immediately preceding year's rate pending such determination; and promptly after such
determination the parties shall adjust such payment as necessary to the Annual Fee rate as
determined by the appraiser, or, if Cingular elects to rescind its exercise of its right to renew, City
shall make a rebate as provided in Section 4.1.6 below. The parties shall share equally the costs
and fees of the appraiser. Notwithstanding the foregoing, in no event shall the Annual Fee for
Licensed Premises adjusted hereunder for any Renewal Term be less than 103% of the Annual
Fee for the Licensed Premises in the last year of the preceding term.
4.1.3. The Annual Fee for each Licensed Premises shall be set at the rate in effect for the
calendar year in which the Commencement Date for such Schedule occurs, and shall be adjusted
on January 1 of each year thereafter during the term of the Schedule, beginning January 1, 2003,
according to the adjustment provisions of Sections 4.1.1 and 4.1.2 above.
4.1.4. The Annual Fee shall be payable in advance on each January 1, except that any partial
Annual Fee for the first partial calendar year during the Term of any Schedule shall be payable in
advance on the Commencement Date of the subject Schedule. If the Commencement Date occurs
other than January l, and/or if the Term or final Renewal Term ends on a date other than
December 31, the Annual Fee shall be prorated for the first and last partial calendar years during
the Term or final Renewal Term, based on a 360 day year and 12 months of 30 days each.
Chula Vista / Cingular
Master Comm. Site License Page 11 of 18
4.1.5. If payment is not received by January 1, or the respective Commencement Date, a late fee
of 5% of the balance due will be assessed. In addition, interest will accrue at a rate of 6% per
annum until paid.
4.1.6. If a Schedule is terminated prior to December 31 of any year for any reason other than
Cingular's default, City shall rebate to Cingular the unearned portion of the Annual Fee for the
calendar year in which termination occurs, provided that City may reduce any such rebate by (a)
any termination fee owing to City under Section 2.9.3.c above and (b) those sums, if any, due
fi.om Cingular under Section 2.8 above. City shall pay such rebate within 60 days after the
effective date of termination. Whenever Cingular is entitled to abatement of an Annual Fee under
this License or any Schedule, City shall credit the amount of such abatement against the next
Annual Fees due from Cingular; provided that if the amount of the abatement exceeds the total
next Annual Fee (if any) due for the Premises respecting which the abatement has arisen, City
instead shall rebate to Cingular the full abatement amount within 30 days after Cingular delivers
to City written request for such rebate.
4.1.7. Payments shall be made to The City of Chula Vista, Finance Department, 276 Fourth
Avenue, Chula Vista, CA 91910, or to such other place as City may from time to time designate
by written notice to Cingular. Payments shall be accompanied by a description of payment, which
identifies the sites for which payment is being made.
4.2. Surety Bond. City shall have the right to require Cingular to furnish a bond, or alternative
acceptable to City, to cover the faithful performance by Cingular of its obligations under this License. If
such a bond is required by City, it shall be issued by a commercial bonding company which is authorized
to transact surety insurance business in the State of California and satisfactory to City; shall not be subject
to termination or cancellation except upon ninety (90) days' prior written notice by certified mail to City;
shall be in such form and in such amount, not to exceed $25,000, as City shall specify from time to time;
and, subject to termination or cancellation as foresaid, shrill be maintained in full force and effect
throughout the life of this License and until City, in its sole discretion, determines that Cingular has
fulfilled all of its obligations under this License.
4.3. Hold Harmless.
4.3.1. Cingular shall defend, indemnify, protect and hold harmless the City, its elected and
appointed officers and employees (each a 'City Party'), from and against all claims for damages,
liability, cost and expense (including without limitation attorneys' fees) arising out of the
operation of the Cingular Improvements or conduct of the Cingular, or any agent or employee,
subcontractors, or others acting under the direction or control of Cingular or the violation thereby
of any hazardous materials laws or thc release thereby of hazardous materials in connection with
this License, except only to the extent of those claims arising from the sole negligence or sole
willful misconduct of a City Party. Cingular's indemnification shall include any and all costs,
expenses, reasonable attorneys' fees and liability incurred by the City, its officers, agents, or
employees in defending against such claims, whether the same proceed to judgment or not.
Further, Cingular at its own expense shall, upon written request by the City, defend any such
claims arising from Cingular's operations or conduct that are brought against the City, its officers,
agents, or employees.
Cingular also shall and does hereby agree to indemnify, protect, defend and hold harmless the
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Master Comm. Site License Page 12 of 18
City, its elected and appointed officers and employees (each a 'City Party'), from and against all
claims for damages, liability, cost and expense (including without limitation attorneys' fees)
incurred by the City arising, directly or inchrectly, from (a) City's approval and issuance of
Schedule and (b) City's approval or issuance of any other permit or action, whether discretionary
or non-discretionary, in connection with the use contemplated herein.
4.3.2. It is agreed between the parties that the City assumes no responsibility or liability for
loss, damage, expenses or claims, direct or consequential, fi.om (a) the Cingular's inability to use
the Licensed Premises for its intended purpose, contributed to or caused by the failure of existing
facilities on which Cingular Improvements may be placed, inability to use the site, or otherwise,
(b) the Cingular use of any related access roads, (c) Cingular's operation of the Cingular
Improvements, or (d) the termination of the License by either party.
4.3.3. Notwithstand'mg any conlrary provision of this License, each party hereby waives any
right to recover from the other party or other party's parmers, affiliates, agents and employees any
loss or damage resulting from any cause or hazard to the extent the loss or damage is covered by
property insurance carried by the party suffering loss or damage, including any loss or damage
resulting from loss of the use of any property and provided that at the time of loss the property
insurers for both parties have waived rights of subrogation. These waivers shall apply between
the parties and to any property insurer claiming under or through either party as a result of any
asserted right of subrogation, unless any property insurer has not waived its right of subrogation
(in which case these waivers shall have no effect).
4.4. Insurance. Cingular, at its sole cost and expense, shall maintain in full force and effect at all
times during the term of this License (including the period between the expiration hereof and Cingular's
removal of the Cingular Improvements or other equipment from the Premises or appurtenant property),
Comprehensive General Liability or Commercial General Liability insurance covering bodily injury
(including death), personal injury and property damage. Limits shall be in an amount of not less than one
million dollars ($1,000,000) per occurrence, and two million dollars ($2,000,000) aggregate if applicable.
Such insurance shall name the City, its officers, agents and employees, individually and collectively, as
additional insureds with respect to any covered liability arising out of Cingular's performance of work
under this License. Throughout the term of this License, Cingular, at its sole cost and expense, shall also
maintain in full fome and effect, insurance coverage for bodily injury (including death), and property
damage which provides total limits of not less than one million dollars ($1,000,000) combined single
limit per occurrence applicable to all owned, non-owned and hired vehicles/aircraft/watercraft.
Additionally, Cingular shall maintain not less than fifty thousand dollars ($50,000) Fire Legal Liability on
all real property being licensed, including improvements and betterments owned by City. Cingular shall
also provide fire insurance on all personal property contained within or on the Licensed Premises. The
policy shall be written on a standard "all risk" contract, excluding earthquake and flood. The contract
shall insure for not less than (90) percent of the actual cash value of the personal property, and shall name
the City as an additional insured. Coverage shall be provided in accordance with the limits specified and
the Provisions indicated herein. Claims-made policies are not acceptable. When an umbrella or excess
coverage is in effect, coverage shall be provided in following form. Such insurance shall not be canceled
or materially altered to reduce coverage until the City has received at least thirty (30) days' advance
written notice of such cancellation or change. Cingular shall be responsible for notifying the City of such
change or cancellation.
4.4.1. Filing of Certificates and Endorsements. Prior to the commencement of any work
pursuant to this License, Cingular shall file with the City the required original certificate(s) of
insurance with endorsements, subject to the City's prior approval, which shall clearly state all of
the following:
Chula Vista / Cingular
Master Comm. Site License Page 13 of 18
1/-/7
a. Provide on a form approved by the City's Risk Manager, an original plus one (1)
copy of a Certificate of Insurance certifying that coverage as required has been
obtained and remains in force for the period required by the License.
b. All policies shall contain a special provision for thirty (30) days prior written
notice of any cancellation, or change to no longer meet the herein specified
insurance requirements, to be sent to the City's Risk Manager, 276 Fourth
Avenue, Chula Vista, Ca 91910, or to the address shown on the Certificate of
Insurance.; and
c. That Cingular's insurance is primary as respects any other valid or collectible
insurance that the City may possess, including any self-insured retentions the
City may have; and any other insurance ~he City does possess shall be considered
excess insurance only and shall not be required to contribute with this insurance.
d. City is an additional insured. The certificate(s) of insurance with
endorsements and notices shall be mailed to the City as the address specified in
4.4.1.b.above.
4.4.2. Workers' Compensation Insurance. Throughout the term of this License, Cingular, at its
sole cost and expense, shall maintain in full force and effect, insurance coverage for:
a. Statutory California Workers' Compensation coverage including a broad form
ail-states endorsement.
b. Employer's Liability coverage for not less than one million dollars ($1,000,000)
per occurrence for all employees engaged in services or operations under this
License.
Policy is to include a wavier of subrogation.
4.4.3. Insurer Criteria. Any bond or insurance provider of Cingular shall be admitted and
authorized to do business in Califomia and shall be rated at least AV in A.M. Best & Company's
Insurance Guide. Insurance policies and certificates issued by non-admitted insurance companies
are not acceptable.
4.4.4. Severability of Interest. Prior to the execution of this License, "Additional insured",
"Cross liability," "severability of interest," or "separation of insured" endorsements/clauses shall
be made a part of the commercial general liability and commercial automobile liability policies.
4.4.5. Contractors' and Subcontractors' Insurance. Cingular shall require that ali contractors
and subcontractors obtain insurance meeting the criteria set forth herein and shall furnish to the
City copies of all certificates evidencing such policies of insurance.
4.4.6 Insurance and Indemnification Obligation. Cingular's compliance with the insurance
requirements herein shall not excuse, replace, or otherwise affect Cingul~'s duty to indemnify
and defend the City pursuant to 4.4 of this License.
4.4.7 Except as may be specifically provided for elsewhere in this License, City and Cingular
hereby each mutually waive and all rights of recovery from the other in even of damage to the
Chula Vista / Cingular
Master Comm. Site License Page 14 of 18
premises or property of either caused by acts of God, perils of fire, lighming, and extended
coverage perils as defined in insurance policies and forms approved for use in the State of
California. Each party shall obta'm any special endorsements, if reqtfn:ed by their insmer, to
evidence compliance with the aforementioned wavier.
4.5. Nuisance. Cingutar shall not use the licensed Premises in any manner, which, in the reasonable
opinion of the City, creates a nuisance or disturbs the qmet enjoyment of the surrounding area by persons
in said area. City reserves its fights to exercise its police powers and authority as they may apply to
nuisance response and abatement, as provided by City ordinance exclusive of any contract provisions.
5. MISCELLANEOUS
5.1. Possessory Interest. Cingular shall pay personal property taxes and possessory interest taxes, if
any, assessed against the Cingular Improvements or the Premises arising from the installation of the
Cingular Improvements. Cingular recognizes and understands that this license may create a possessory
interest subject to property taxation and that Cingular may be subject to the payment of property taxes
levied on such interest. Cingular further agrees that such tax payment shall not reduce any fee paid to
City hereunder and that such tax shall be paid by Cingular before becoming delinquent. City has no
responsibility or liability for any such tax.
5.2. Utility Users' Tax. Cingular acknowledges and agrees that the wireless communication services
utilizing the Cingular Improvements licensed hereunder are subject to the City's utility users' tax ("Utility
Tax") pursuant to City's Municipal Code. Cingular agrees to collect the tax from service users and remit
such tax to the City in accordance with the City's Municipal Code.
5.3. Governmental Approvals. Each Schedule under tins License is conditioned upon Cingular, or
Cingular's assigns, obtaining all governmental permits and approvals enabling Cingular, or its assigns, to
construct and operate mobile/wireless communications facilities on the Cingular Improvements for that
Schedule. Cingular shall at its sole cost and expense comply with all the requirements of all municipal,
state, and federal authorities now in effect or which may hereafter be in effect, which pertain to the
Cingular's Improvements and use thereof. City shall have no responsibility or liability for any such
requirements. Cingular shall be responsible for obtaining any permits and approvals from any agency
having jurisdiction over Cingular's activities.
5.4. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with
the laws of the State of California. Any action arising under or relating to this Agreement shall be
brought only in the federal or state courts located in San Diego County, State of California, and if
applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
5.5. Signs. No signs shall be displayed on the Premises without the prior written consent of the City
in its sole discretion.
5.6. License Administrators. For administrative purposes, any activity covered by this License,
which requires permission or consent of City shall be referred to the City Manager or Manager's duly
designated representative at the following address:
City Manager, City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Phone: (619) 691-5031
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Master Comm. Site License Page 15 of 18
Fax: (619) 585-5884
The designated person, address, and phone number for serving official notice on Cingular shall be:
Atto: Property Manager
6170 Cornerstone Court, Suite 180
San Diego, California 92121
Phone: (858) 642-9403
Fax: (858) 642-9466
5.7. Successors and Assigns.
5.7.1. Except as provided in subsection 2 below, Cingular shall not assign any rights granted by
this License nor any interest therein without the prior written approval of the City. Approval of
any such proposed assignment may be withheld in the sole and absolute discretion of the City.
Any assignment by operation of law shall automatically terminate this License. The terms and
provisions of this License shall extend to and be binding upon and inure to the benefit of any
successors and assigns of the respective parties hereto.
5.7.2. Notwithstanding Section 1 above, Cingular may, without City's approval and in Cingular's
sole discretion, from time to time, do any of the following:
a. Grant to any person or entity .a security interest in some or all of Cingular's
Improvements and/or other property used or to be used in connection with this License;
b. Assign or pledge Cingular's interest in this License or any Schedule to any person or
entity to finance Cingutar's equipment or operate Cingular's business; and
c. Assign (i) to any entity which has, directly or indirectly, a 30% or greater interest in
Cingular (a "parent") or in which Cingular or a Parent has a 30% or greater interest (an
"Affiliate"); (ii) to any entity with which Cingular and/or any Affiliate may merge or
consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or
assets of Cingular or any Affiliate; or (iv) to the holder or transferee of the Federal
Communications ("FCC") license under which Cingalar's Improvements are operated,
upon FCC approval of any such transfer. Any such assignment shall not be effective
until the assignee signs and delivers to City a document in which the assignee assumes
responsibility for all Cingular's obligatioffs under this License arising from and after the
effective date of assignment.
5.8. Non-Waiver of Breaches. The City's or Cingular's failure to insist, respectively, in any one or
more instances, upon strict performance of any of the covenants or conditions of this License shall not be
considered as a waiver or relinquishment for the future of said covenants, terms or conditions, but the
same shall continue and remain in full force and effect.
5.9. Entire Agreement. This instrument contains the entire agreement between the parties relating to
the rights herein granted and the obligations herein assumed. No alteration or variation of this License
shall be valid or binding unless made in writing and signed by the parties hereto.
5.10. Time is of the Essence. Time is of the essence in performing each and all of the terms and
provisions of this License.
Chula Vista / Cingular
Master Comm. Site License Page 16 of 18
5.11. Waiver of Property, Relocation and Condemnation Rights. Cingular acknowledges and
agrees that this License does not .confer any of the following: a property right or interest or, a right to
relocation or relocation assistance.
5.12. Hazardous Materials. Cingular shall not bring any Hazardous Materials onto the Licensed
Premises except for those contained in Cingular's back-up power batteries (e.g. lead-acid batteries) and
properly stored, reasonable quantities of common materials used in telecommunications operation (e.g.
cleaning solvents). Cingular shall handle, store and dispose of all Hazardous Materials it brings onto the
Licensed Premises in accordance with all federal, state and local laws and regulations. "Hazardous
Materials'~ means any substance, chemical, pollutant or waste that is presently identified as hazardous,
toxic or dangerous under any applicable federal, state or local law or regulation and specifically includes
but is not limited to asbestos and asbestos containing materials, polychlorinated biphenyl's (PCBs) and
petroleum or other fuels (including crude oil or any fraction or derivative thereof). City makes no
representation or warranty regarding the existence of hazardous materials on some or all of the Licensed
Premises, which are being licensed to Cingular in an AS IS condition. Cingular is solely responsible for
investigation of any and all Licensed Premises as it sees fit to determine the suitability of the Premises for
its intended use.
5.13. City Police Powers. Notwithstanding any provision in this License to thc contrary, Cingular
acknowledges and agrees that City retains any and all police powers authority available at Law or in
equity to regulate the conduct of Cingular within the City or to otherwise act in accordance with the
public health, safety and welfare of the City and that nothing in this License is intended to or shall the
affect of condemning or limiting such authority in any way.
5.14. Limitation on City Liability. Notwithstanding any provision in this License to the contra~
Cingular's sole remedies for the City's breach of thc License shall bc (1) termination of the License or
one or more Schedules, as appropriate; (2) specific performance or injunction; or (3) the right to withhold
amounts otherwise due and payable to City hereunder with respect to one or more Licensed Premises;
provided that; the foregoing limitation on liability does not apply to City's rebate obligation under Section
4.1.6 above. Except as expressly provided in the preceding sentence, in no event shall Cingular be
entitled to monetary damages against thc City for breach of contract hereunder.
5.15. Condemnation. If a condemning authority takes all of City's Property, or a portion, which in
both parties' opinion is sufficient to render a Premise unsuitable for Cingular's use, then the applicable
Schedule shall terminate as of thc date when possession is delivered to the condemning authority. In any
condemnation proceeding each party shall be entitled to make a claim against the condemning authority
for just compensation. Sale of all or part of the Premises to a purchaser with the power of eminent
domain, shall be treated as a taking by a condemning authority.
[The Next Page is the Signature Page]
Chula Vista / Cingular
Master Comm. Site License Page 17 of 18
SIGNATURE PAGE TO MASTER COMMUNICATIONS SITE LICENSE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this License as of the date first written above.
City_ Cingular
City of Chuta Vista, Pacific Bell Wireless LLC,
Chula Vista, CA 9 ! 910 a Nevada limited liability company,
276 Fourth Avenue d/b/a Cingular Wireless
By: By: ~'~--~-~'
Name: Name: Mark A. Appel
/
Title: TitLe: Director of Network
/
MTM:Cingular\Revised License Agreement
Chula Vista / Cingular ~
Master Comm. Site License ~ Page 18 of 18
EXHIBIT B
Attachment I
Schedule of Premises
Each Licensed Premises Should he described in a Schedule in the format outlined below and made part of this
Attachment I.
Schedule:
Cingular Site No:
Commencement Date:
Location:
APN:
Description of Installation (Attach Site Plan):
Building Permit No:
Conditions of Approval:
Note: Violations of these conditions may result in the termination of the right to use this site for wireless
communications (see Section 2.9.4a of the Master Communications Site License Agreement). Also,
pursuant to Section 1.2 of the Agreement the City may add to, delete or modify this Schedule's
Conditions of Approval at any time during the term of the Agreement to advance a legitimate
governmental interest.
Other:
In addition, all work shall be scheduled in advance and coordinated with parks operations personnel, onsite
recreational staff, City Engineer and Public Works Staff or other City staff as appropriate prior to commencement
of the work to minimize the potential for conflicts with recreation and other City programs occurring on the site.
The applicant agrees that the site will not be activated until the City has signed off on final construction.
City of Chula Vista Applicant's Authorized City Representatives
COUNCIL AGENDA STATEMENT
Item: fO;~
Meeting Date: 11/05/02
ITEM TITLE: Resolution approving the Purchase Agreement with Otay
Project, LP for the real property needed for Fire Station No. 7, located at
the southeast comer of La Media Road and Street A in Village 2 of Otay
Ranch in eastern Chula Vista, and authorizing the Mayor to execute said
agreement
SUBMITTED BY: Andy Campbell, Director of Building and Park Construction ~
REVIEWED BY: City Manager~~) (4/Sths Vote: Yes No X )
The City Council previously approved C1P project #PS-150 which involves the construction of a
completed and fully functional 12,000 square foot 4-bay fire station including the facilities and
site-work required to provide fire service to the eastern territories of the City. The design phase
of the project has already commenced. The resolution before council this evening will authorize
the purchase of the real property for Fire Station No. 7.
RECOMMENDATION: That the City Council approve the Purchase Agreement with Otay
Project, LP for the real property needed for Fire Station No. 7 and authorize the Mayor to
execute said agreement.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
BACKGROUND:
The City Council previously approved CIP project #PS-150 which involves the construction of a
completed and fully functional 12,000 square foot 4-bay fire station to serve the eastern part of
the City. On October 22, 2002, City Council approved the Design-Build Agreement with
Rudolph and Sletten, Inc. to design and construct this new facility by September 11, 2003.
PROJECT SCOPE AND CONTRACTUAL REQUIREMENTS
As proposed, the Purchase Agreement with Otay Project, LP. will provide the City a net 1.5 acre
pad for Fire Station No. 7. Otay Project, LP will provide all utilities, rough grading and
construct the frontage road, which will provide access to the site. The purchase price that the
City agrees to pay for the property is $525,000 and $I 16,000 for the rough grading.
Page 2, Item: I ~-~
Meeting Date: 11/05/02
CLOSE OF ESCROW
The Close of Escrow shall occur on or before December 30, 2002. The Close of escrow may be
extended beyond the closing date only by mutual agreement of both parties.
ENVIRONMENTAL STATUS
The Environmental Review Coordinator has reviewed the proposed project for compliance with
the California Environmental Quality Act and has determined that the proposed project was
adequately covered in the previously adopted Fire Station #7 Initial Study (IS-02-033). Thus, no
further environmental review or documentation is necessary.
FISCAL IMPACT:
The City shall purchase the 1.5 net acres of real property for $525,000. The pumhase price shall
be payable as follows: $310,500 cash (from existing PS-150 appropriation) and $214,500 in the
form of credit to the Public Facilities Development Impact Fee. Additionally, grading costs of
$116,000, paid in cash from existing PS-150 appropriation are included in the sales agreement.
The total costs to purchase and grade the real property is; $525,000 + $116,000 = $641,000.
Attachments: Attachment 1 Purchase Agreement
J:\BPC~BPC Adrninis ra on'Agenda\Fire Station #7 Purchase A1 13.doc
RESOLUTION NO. 2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE PURCHASE AGREEMENT
WITH OTAY PROJECT, LP FOR THE REAL PROPERTY
NEEDED FOR FIRE STATION NO. 7, LOCATED AT THE
SOUTHEAST CORNER OF LA MEDIA ROAD AND STREET
A IN VILLAGE 2 OF OTAY RANCH IN EASTERN CHULA
VISTA, AND AUTHORIZING THE MAYOR TO EXECUTE
SAID AGREEMENT
WHEREAS, City Council previously approved CIP project #PS-150 which
involves the construction of a completed and fully functional 12,000 square foot 4-bay fire
station including the facilities and site-work required to provide fire service to the eastern
territories of the City; and
WHEREAS, the property is currently owned by Otay Project, LP and is located at
the southeast comer of La Media Road and Street A in Village 2 of Otay Ranch in eastern Chula
Vista; and
WHEREAS, as proposed, the Purchase Agreement with Otay Project, LP will
provide the City a net 1.5 acre pad for Fire Station No. 7; and
WHEREAS, Otay Project, LP will provide all utilities, rough grading and access
to the site; and
WHEREAS, the purchase price that the City agrees to pay for the property is
$525,000 and $116,000 for the rough grading; and
WHEREAS, the purchase and construction of Fire Station No. 7 was previously
analyzed in IS-02-033 and no further environmental review is required; and
WHEREAS, staff recommends that the City Council approve a Purchase
Agreement with Otay Project, LP for the real property needed for Fire Station No. 7.
NOW, THEREFORE, BE IT RESOLVED that' the City Council approves a
Purchase Agreement with Otay Project, LP for the real property needed for Fire Station No. 7, a
copy of which shall be kept on file in the office of the City Clerk.
BE iT FURTHER RESOLVED that the Mayor of the City of Chula Vista is
hereby authorized to execute said Agreement on behalf of the City of Chula Vista.
Presented by Approved as to form by
Andy Campbell ~ty ~ttioKmaeh;ny
Director of Building and Park
Construction
JSAttorney\RESOXFire Station #7 a.doc
/2.-,3
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
City Attorney
Dated: October 31, 2002
Purchase Agreement and Escrow Instructions by and between
Otay Project, LP (Seller) and City of Chula Vista (Buyer)
dated November 5, 2002
PURCHASE AGREEMENT AND ESCROW iNSTRUCTIONS
OTAY PROJECT, LP
("Seller")
and
CITY OF CHULA VISTA
("Buyer")
Dated: November 5, 2002
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
This PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of November 5, 2002 ("Effective Date"), by
and between OTAY PROJECT, L.P., a California limited partnership ("Seller"), and the
CITY OF CHULA VISTA, a municipal corporation ("Buyer"), with reference to the facts
set forth below.
RECITAL
A. Seller is the owner of approximately 1.62 acres of that certain real
property situated in the City of Chula Vista, County of San Diego, State of California, as
described as the southwest comer of La Media Road and Street "A" more particularly
described in Exhibit "A," attached hereto and incorporated herein (the "Property").
B. Seller's execution of this Agreement constitutes an irrevocable offer to sell
the Property on the terms and conditions stated herein.
C. This Agreement is intended to set forth (i) a contract of purchase and sale
between Buyer and Seller, and (ii) joint escrow instructions from Seller and Buyer to
CHICAGO TITLE INSURANCE COMPANY ("Escrow Holder"), the consent of which
appears at the end of this Agreement.
NOW THEREFORE, in consideration of the mutual agreements set forth herein
and for other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Buyer agrees to purchase and Seller agrees to sell the Property on the
terms and conditions set forth below.
1. Agreement Of Purchase And Sale. Buyer agrees to purchase and Seller
agrees to sell the Property on the terms and conditions set forth herein.
2. Purchase Price. The purchase price ("Purchase Price") that Buyer agrees
to pay for the Property and Seller agrees to accept for the Property is Five Hundred
Twenty-five Thousand Dollars and No Cents ($525,000.00).
2.1 Purchase Price. The Purchase Price shall be payable through
Escrow as follows:
a. $310,500 shall be delivered to Escrow agent in cash,
in the form of a cashier's or certified check or wired
funds prior to the close of Escrow.
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b. $214,500 shall be in the form of credit to the Public
Facilities Development Impact Fee.
2.2 Grading Cost. Buyer agrees to pay an additional $116,000 as full
compensation for all grading to be completed by Seller on the Property and Street A prior
to Close of Escrow consistent with Exhibit B.
3. Escrow. The transaction contemplated by this Agreement shall be
processed through an escrow ("Escrow") established with Escrow Holder. Escrow shall
be deemed opened ("Opening of Escrow") upon Seller's delivery to Escrow Holder of a
signed counterpart of this Agreement. The term "Close of Escrow" and similar
references shall mean the date that Seller's Grant Deed (defined below) is filed for record
in the Office of the County Recorder of San Diego County. The Close of Escrow shall
occur on or before December 30, 2002. The Close of Escrow may be extended beyond
the Closing Date only by mutual agreement of the parties, as evidenced by delivery to
Escrow Holder of written instructions, signed by Seller and Buyer, stating the
agreed-upon date for the Close of Escrow.
4. Title. Seller shall convey the Property to Buyer subject only to those
exceptions to title identified in the preliminary title report for the Property attached hereto
and incorporated herein as Exhibit "C".
5. Deliveries By Buyer. The Purchase Price and any additional funds
necessary to pay Buyers closing costs and prorations shall be paid as provided for in
Section 2 on or before the Close of Escrow.
6. Deliveries By Seller. On or before the Close of Escrow, Seller shall sign,
acknowledge and deposit into Escrow a grant deed (the "Grant Deed") conveying the
Property to Buyer. Provided that all terms and conditions of this Agreement have been
satisfied, Escrow Agent shall record the Grant Deed at the Close of Escrow.
7. Close of Escrow. Escrow Holder shall close this Escrow on the Closing
Date by (i) filing for record Seller's Grant Deed and such other documents as may be
necessary to procure the Title Policy (defined below), and (ii) delivering funds and
documents to the parties (as set forth herein) when and only when each of the following
conditions has been satisfied:
7.1 Deliveries. All funds and documents described in Sections 5 and 6
have been delivered to Escrow Holder.
7.2 The Title Policy. Chicago Title Insurance Company is irrevocably
committed to issue a CLTA owner's policy of title insurance ('Title Policy"), with
liability in the amount of the Purchase Price, insuring that the fee title to the Property
2
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vests in Buyer subject only to: (i) the exclusions listed in the standard "Schedule of
Exclusions from Coverage' of the Title Policy; (ii) real estate taxes and assessments
which are, as of the Close of Escrow, not delinquent; (iii) the exceptions to title permitted
pursuant to Section 4 above; and (iv) any liens or encumbrances voluntarily imposed by
Buyer.
7.3 Seller has certified in writing that the Property and adjacent streets
have been rough graded and the utilities have been provided to the site as depicted on
Exhibit B.
8. Prorations Expenses and Distributions.
8.1 Prorations. All real property taxes and assessments against the
Property shall be prorated between Bayer and Seller as of the Close of Escrow such that
Seller is responsible for paying all property taxes and assessments that accrue prior to the
Close of Escrow. Escrow Holder shall have no obligation in connection with this section.
8.2 Expenses of Escrow. The expenses of the Escrow shall be paid in
the following manner:
a. Seller shall pay: (i) one-half (l/2) of the Escrow fees and
costs; (ii) all documentary transfer taxes; and (iii) the premium for the CLTA Title
Policy.
b. Buyer shall pay: (i) one-half (1/2) of the Escrow fees and
costs; (ii) the cost of recording Seller's Grant Deed or other instruments executed by
Seller conveying title to the Property to Buyer; and (iii) the cost of any endorsements to
the Title Policy.
8.3 Deliveries By Escrow Holder At Close Of Escrow. Promp. tly upon
the Close of Escrow, Escrow Holder is instructed to deliver funds and documents to the
parties respectively entitled to receive them. Escrow Holder shall instruct the recorder to
mail Seller's Grant Deed to Buyer. Unless otherwise expressly stated in this Agreement,
all disbursements shall be made by Escrow Holder's checks or immediately available
funds.
8.4 Escrow Holder's General Provisions. The General Provisions of
Escrow Holder are attached hereto as Exhibit "D" and incorporated herein by reference.
In the event of a conflict between the provisions of this Agreement and the General
Provisions, the provisions of the Agreement shall control.
9. Assignment. Except for assignments to affiliate entities, neither Buyer nor
Seller may assign its rights under this Agreement without the written consent of the other
3
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party. An assignment shall not release the assignor from its obligations under this
Agreement.
10. Seller's Representations and Warranties. Seller represents and warrants
that (i) Seller has no current actual knowledge, except as set forth below, that there has
been released on or beneath the Property any Hazardous Materials, and (ii) Seller has no
current actual knowledge of any environmental condition on the Property which would be
violation of any applicable federal, state or local law, ordinance or regulation relating to
Hazardous Materials other than those petroleum products, pesticides and other
agricultural and commercial chemicals customarily used in agricultural and commercial
operations of the type currently conducted by Seller on Seller's overall real property
holdings in the vicinity of the Property all of which have been (subject to the following
disclosure) and will be used in accordance with ali applicable laws and regulations.
For purposes of this section of the agreement, the tern~ "Hazardous Materials"
means and refers to any substance, material or waste which is or becomes (i) regulated by
any local or regional governmental authority the State of California or the United States
Govermnent as a hazardous waste; (ii) is defined as a "solid waste", "sludge", "hazardous
waste," "extremely hazardous waste," "restricted hazardous waste," "Non-RCRA
hazardous waste," "recyclable material," under any federal state or local statute,
regulation, or ordinance, including, without limitation, Sections 25115, 25117, 25117.9,
25120.2, 25120.5 or 25122.7, 25140, 25141 of the California Health and Safety Code;
(iii) defined as a "Hazardous Substance" under Section 25316 of the California Health
and Safety Code; (iv) defined as a "Hazardous Material," "Hazardous Substance" or
"Hazardous Waste" under Section 25501 of the California Health and Safety Code; (v)
defined as a "Hazardous Substance" under Section 25281 of the California Health and
Safety Code; (vi) asbestos; (vii) petroleum products, including, without limitation,
petroleum, gasoline, used oil, crude oil, waste oil and any fraction thereof, natural gas,
natural gas liquefied, natural gas, or synthetic fuels, (viii) materials defined as hazardous
or extremely hazardous pursuant to the California Code of Regulations; (ix)
polychlorinated biphenyls, (x) defined as a "Hazardous Substance" pursuant to Section
311 of the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et ~.); (xi)
defined as a "Hazardous Waste" pursuant to Section 1004 of the Federal Resoume
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (xii) defined as a
"Hazardous Substance" or "Mixed Waste" pursuant to Section 101 of the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9601 et
~., and regulations promulgated thereunder; (xiii) defined as a "Hazardous Substance"
pursuant to Section 401.15 of the Clean Water Act, 40 C.F.R. 116; or (xiv) defined as a
"Extremely Hazardous Substance" pursuant to Section 302 of the Superfund
Amendments and Reauthorizations Act of 1986, 42 U.S.C. Section 11002 et seq.
4
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11. Agreements Not Involving Escrow Holder. The following provisions
are agreements between Buyer and Seller, and Escrow Holder shall have no obligation or
liability in connection therewith:
11.1 Condition of Real Property. Buyer represents that it has fully
investigated and inspected all aspects of the Property and agrees that, subject to the
representations, warranties and covenants of Seller expressly set forth herein, Buyer shall
accept the Property in its "as is" condition or status as of the Closing Date. Buyer
acknowledges and agrees that except to the extent expressly set forth herein, Seller has
not made and is not making any express or implied warranties or representations of any
kind or character with respect to the Property, and Buyer warrants and represents that it
has not relied upon and will not rely upon, either directly or indirectly, any warranty or
representation of Seller not expressly set forth herein.
11.2 Specific Performance. The parties expressly agree that damages
will not adequately compensate Seller for any breach by Buyer of its obligations
hereunder, and further agree that Seller shall be entitled to specific performance of this
Agreement.
11.3 Seller Not a Foreign Person. Seller warrants that no individual or
entity which, under the terms of this Agreement, will transfer United States Real Property
Interests, as defined in § 897(c) of the Internal Revenue Code, is a "foreign person"
within the meaning of § 1445(f) of the Internal Revenue Code. Seller also warrants that
Buyer as transferee will not be required to withhold tax pursuant to § 26131 of the
California Revenue and Taxation Code. Seller agrees to execute and deliver through
Escrow prior to closing an affidavit similar in form and substance to the affidavit attached
hereto and incorporated herein as Exhibit "E~'.
11.4 Property Access. Between the date of Opening of Escrow and the
close or earlier termination of Escrow, Seller shall allow Buyer and its agents free,
reasonable access to the Property, upon reasonable notice to Seller.
I 1.5 Governmental Permits and Processing. During the Escrow period,
Buyer shall have the right to file applications for and to process, at Buyer's expense,
applications for governmental permits and approvals for zoning, land use, subdivision,
improvement, development and construction relating to the Property and Buyer's
intended use. Seller shall execute any applications or other documents referenced by
applicable governmental authorities to authorize Buyer to process such permits and
approvals, and shall cooperate reasonably with Buyer in connection therewith.
11.6 Condemnation or Damage. If, prior to Close of Escrow, an action
is commenced for the condemnation of the Property or any materially damaged by fire,
earthquake or other cause, so as, in either event, to render the Property unsuitable for
5
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Buyer's use, then Buyer shall have the right to terminate this Agreement by delivering
written notice to Seller (with a copy to Escrow Agent) within ten (10) days after Buyer
receives notice of the condemnation or damage. If Buyer terminates this Agreement
within such 10-day period, then the Escrow shall be cancelled, neither Buyer nor Seller
shall have any further obligation under this Agreement. If Buyer fails to deliver written
notice of termination within said 10-day period, Buyer shall be deemed to have waived
and Buyer shall proceed to consummate the purchase pursuant to this Agreement. Buyer
shall have no other remedies against Seller as a result of such condemnation or
destruction of the Property except as set forth in this Section.
11.7 Possession. Possession of the Property shall be delivered by Seller
to Buyer on the Closing Date after recordation of the Grant Deed. Except as expressly
provided herein, all risk of loss and damage to the Property from whatever source shall be
the sole responsibility of Buyer after Close of Escrow.
12. Other Provisions.
12.1 Brokers and Brokers' Commissions. Seller and Buyer each warrant
and represent that it has not contracted or otherwise obligated itself or the other party to
pay any sums as either commissions, finders fees or other claims of a similar nature
arising out of this Agreement, and each agrees to hold the other harmless with respect to
any breach on its part of this warranty and representation. If Seller or Buyer engages the
service of any broker or similar party for any matter related to this Agreement, that party
shall be responsible for all fees, payments and commissions payable and shall indemnify
and hold the other party harmless in connection therewith.
12.2 Advice from Independent Counsel. Each party hereto understands
that this Agreement is legally binding and may affect such party's rights. Each represents
to the others that it has received legal, advice from counsel of its choice regarding the
meaning and legal significance of this Agreement and that it is satisfied with its legal
counsel and the advice received from that counsel.
12.3 Attorney's Fees. In the event any action shall be instituted between
Buyer and Seller in connection with this Agreement, the party prevailing in such action
shall be entitled, in addition to damages, injunctive relief or other relief, to recover from
the other party all of its costs of action, including, without limitation, attorneys' fees and
costs as fixed by the court therein.
12.4 Amendments. This Agreement may be amended, supplemented or
modified only by a written amendment executed by Seller and Buyer. No modification,
waiver, amendment, discharge or change of this Agreement shall be valid unless the same
is in writing and signed by the part), against which the enforcement of such modification,
waiver, amendment, discharge or change is or may he sought.
6
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12.5 Notices. Unless otherwise specifically provided herein, all notices,
demands or other communications given hereunder shall be in writing and shall be
deemed to have been duly delivered upon personal delivery, or by Federal Express (or
similar reputable express delivery service), or by telecopier transmission with back-up
copy mailed the same day, or as of the second business day after by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to Seller, to:
Otay Project, LP
350 W. Ash Street, Suite 730
San Diego, California 92101
Telephone: (619) 234-4050
Telecopier: (619) 234-4088
Attention: Robert Cameron
If to Buyer, to:
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
Telephone: (619) 691-5031
Telecopier: (619) 409-5864
Attention: City Manager
If to Escrow Holder, to:
Chicago Title Company
925 B Street
San Diego, California 92101
Telephone: (619) 544-6250
Telecopier: (619) 544-6229
Attention: Renee Marshall
12.6. Construction of Agreement. The agreements contained herein
shall not be construed in favor of or against either party, but shall be construed as if both
parties prepared this Agreement.
12.7. Counterparts and Authority. This Agreement may be executed in
multiple counterparts, each of which shall constitute an original hereof, and all of which
taken together shall constitute one and the same binding Agreement. Each party
7
J:\Attorncy\EHull\Otay ProjectXPurchase Agmt and Escrow Instructions,doc
executing this Agreement represents that such party has the full authority and legal power
to do so.
12.8. Governing Law and Forum Selection. This Agreement shall be
construed under and enforced in accordance with the laws of the State of California
except to the extent Federal laws preempt the laws of the State of California. in any
action brought under or arising out of this Agreement, each party hereby consents to the
jurisdiction of a competent court within the State of California, agrees that the forum for
such action or actions shall be a court of competent jurisdiction within the County of San
Diego, State of California, and consents to service of process by any means authorized by
California law.
12.9. No Waiver. A waiver by either party of a breach of any of the
covenants, conditions or agreements under this Agreement to be per~'ormed by the other
party must be in writing and shall not be construed as a waiver of any succeeding or
preceding breach of the same or other covenants, agreements, restrictions or conditions
herein contained. No waiver of any default by Buyer or Seller hereunder shall be implied
from any omission by the other party to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect a default other than as
specified in such waiver. The consent or approval by Buyer or Seller to or of any act by
the other party requiring the consent or approval of the first party shall not be deemed to
waive or render unnecessary such party's consent or approval to or of any subsequent
similar acts by the other party.
12.10. No Warranties. Except as otherwise specifically provided herein,
neither Buyer nor Seller has made any representations, warranties or agreements by or on
behalf of either party to the other party as to any matters concerning the Property. Each
party expressly waives any rights of rescission and all claims for damages by reason of
any statement, representation, warranty, promise or Agreement, if any, not contained in
this Agreement.
12.11. Possession. Possession of the Property shall be delivered to Buyer
upon the Close of Escrow.
12.12. Severability. In the event that any phrase, clause, sentence,
section, paragraph, portion of this Agreement shall become illegal, null or void or against
public policy, for any reason, or shall be held by any court of competent jurisdiction to be
illegal, null or. void or against public policy, the remaining portions of this Agreement
shall not be affected thereby and shall remain in force and effect to the fullest extent
permissible by law.
8
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12.13. Survival of Warranties. Unless expressly stated herein to the
contrary, all representations and warranties shall survive the Close of Escrow of this
Agreement and any earlier termination of this Agreement.
12.14. Successors and .Assigns. Subject to the restrictions and
prohibitions on assignment set forth in this Agreement, each and all of the covenants and
conditions of this Agreement shall inure to the benefit of and shall be binding upon the
successors-in-interest, assigns, and legal representatives of the parties hereto.
12.15. Captions. The caption headings for the sections of this Agreement
are for convenience only and shall not be considered to limit, amplify or define the terms
or provisions hereof.
12.16. Time of Essence. Time is of the essence of each and every
provision of this Agreement.
12.17. Cooperation and Further Documentation. Seller and Buyer agree
to cooperate to consummate the transactions set forth herein, and each agrees to take such
action as is reasonably required of it.
12.18. No Third Party Beneficiary. This Agreement is intended solely for
the benefit of Seller and Buyer.
12.19. Entire Agreement. This Agreement, including its exhibits,
constitutes the entire Agreement between the parties pertaining to the subject matter
hereofi
IN W1TNESS WHEREOF, the parties, individually or through their authorized
representatives, have executed this Agreement as of the date of this Agreement. Each
individual executing this Agreement warrants and represents that he or she has the power
and authority to execute this Agreement on behalf of the party for whom the execution is
made.
[The next page is the signature page.]
9
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SIGNATURE PAGE
PURCHASE AGREEMENT AND ESCROW iNSTRUCTIONS
SELLER: BUYER:
OTAY PROJECT, L.P., CITY OF CHULA VISTA,
a California limited partnership a municipal corporation
By: OTAY PROJECT, LLC,
a California limited liability company By:
Its General Partner Shirley Horton
Mayor
By: Otay Ranch Development, LLC
a Delaware limited liabililty company
Its Authorized Member Approved as to form and legality:
By: By:
Name: Robert B. Cameron John M. Kaheny
Title: Vice President City Attorney
ATTEST:
By:.
Susan Bigelow
City Clerk
[The above signatures must be notarized]
10
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SIGNATURE PAGE
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
SELLER: BUYER:
OTAY PROJECT, LP, CITY OF CHULA VISTA,
a California corporation a municipal corporation
By~ By:.
Name: ~c:~E~-T ~,. ~ Shirley Horton
Title: 'q~(.e ~'~IOE~oI' Mayor
Approved as to form and legality:
By:.
Name:
Title: By',
John M. Kaheny
City Attorney
ATTEST:
By:
Susan Bigelow
City Clerk
[The above signatures must be notarized.]
10
C:\Documents and SettingskrcameronkLocal Scttings\Tcmporary Ir~ternct File$\OLK2\Purchase Agmt and Escrow
Instructions.doc
,,, lc 2~!,z 9:49AM THE OTAY RANCH CO N0,2803 P.}
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of Califor.,~ia /~ '~
personally appeared g~'~ ~, E~~l.o~,)
~personally knOWn to me
~ proved to me on the basis of satisfacto~
evidence
~o be the pemon~) whose name~
subscribed to thb within instrument and
acknowledged to me. at he/she/they executed
the same in (hid~r/~ir~thori~ed
capacity(i~), an~t~at 'by ~r/t~r
~ ~~~ signatur~on the instrument the person~), or
the entitOupon behalf of which the person¢)
_ OPTIONAL
Though the informatien be/ow is not ~quired by law, it may pore valuable fo ~olt~ mlying on fhe document
and ceuld p~vent fraudulent ~mavel and reaflachmenf of this form to another document,
Description of A~ached Document
Title ar Type of Document:
Document Date: .... Number ¢ Pages:
Signer(s) Other Than Named Above:
Capacity{les) Claimed by Signer
Signer's Name: ~ ~
~ Individual Top of Ihumb h~to
Fi Corporate ~icer -- Title(s): __
~ Padner--~ Limited I-~ General
~ Attorney in Fact
FI Trustee
~ Guardian or Conservator
~ Other:
Signer Is Representing:
CONSENT OF ESCROW HOLDER
The undersigned Escrow Holder hereby agrees to: (i) accept the foregoing
Agreement, (ii) be Escrow Holder under the Agreement, and (iii) be bound by the
Agreement in the performance of its duties as Escrow Holder, provided, however, the
undersigned shall have no obligations, liability or responsibility under (a) this Consent or
otherwise, unless and until the Agreement, fully signed by the parties, has been delivered
to the undersigned, or (b) any amendment to said Agreement unless and until the same is
accepted by the undersigned in writing.
Dated: ,2002
CHICAGO TITLE COMPANY
('"Escrow Agent")
By:
Its:
11
J:\Attorney\EHull\Otay Project\Purchase Agmt and Escrow Instructions,doc
LIST OF EXHIBITS
Exhibit A: Legal Description of Property
Exhibit B: Grading and Utility Requirements
Exhibit C: Preliminary Title Report
Exhibit D: General Provisions of Escrow Holder
Exhibit E: Form of Affidavit
12
J:\Attorney\EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc
~.e~o: 1UU22599
LEGAL ~ES~RYPT[O~
All that certain real property situated in the County of San Diego, State of
California, described as follows:
That portion of Parcel 4 of Parcel Map No. 18789, in the City of Chula Vista,
County of San Diego, State of California, filed in the Office of the County
Recorder of San Diego County on September 7, 2001, being more particularly
described as follows:
Commencing at an angle point on the Easterly boundary of said Parcel 4 being
the Westerly terminus of that course on the boundary of Parcel i of said Parcel
Map No. 18789 depicted on Sheet 3 of said Parcel Map No. 18789 as North
71057'24'' East, 1091.24', said point being the Northerly terminus of the Westerly
right of way of La Media Road as dedicated on Chula Vista Tract No. 02-055 Otay
Ranch Village 6 Unit 2 "A" Map No. 1 according to Map thereof No. 14447 filed in
the said Office of the County Recorder on September 18, 2002, said p~)int also
being a point on a 4336.00 foot radius curve, concave Westerly, a radial line of
said curve bears North 77°19'04'' East (Record North 77°18'51'' East per said
Parcel Map No. 18789) to said point; thence along said Westerly right of way
Southerly along the arc of said 4336.00 foot radius curve through a central angle
of 00o39'06', 49.32 feet to the True Point of Beginning; thence continuing along
said Westerly right of way Southerly along the arc of said 4336.00 foot radius
curve through a central angle of 03o24'43'', 258.21 feet; thence leaving said
Westerly right of way non-tangent to said curve South 76040'26'' West, 266.27
feet; thence North 12045'05'' West, 271.84 feet to a point on the proposed
Southerly right of way ("Street A" within Otay Ranch Village 2; thence along said
proposed Southerly right of way North 77°14'55'' East, 259.19 feet; thence
continuing along said proposed Southerly right of way South 70°47'53'' East,
20.21 feet to the True Point of Beginning.
Assessor's Parcel Number: 644-0:30-11
CLTA Preliminary Report Form (Rev 1/1/95)
Page 3
1455 Frazee Road
Suite 600
San Diegof CA 92108 ~.~I~I~IT C
Phone: (619) 686-6000
Commonwealth
Chicago Title Company Our File No: 1002:2599 - 674-7
925 "B" Street Title Officers: Alan Schaffner and Linda
San Diego, CA 92101 Slavik
(aschaffner@landam.com)
(Islavik@landam.com)
Attn; Renee Marshall Phone: (619) 686-6000
Fax: (619) 299-1718
Your Reference No: 23060151
Property Address: Vacant Land
PRELTMTNARY REPORT
Dated as of October 7, 2002 at 7:30 a.m.
Tn response to the above referenced application for a policy of title insurance, Commonwealth Land
Title Company hereby reports that it is prepared to issue, or cause to be issued, as of the date
hereof, a Policy or Policies of Title Tnsurance describing the land and the estate or interest therein
hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or
encumbrance not shown or referred to as an Exception below or not excluded from coverage
pursuant to the printed Schedules, Conditions and Stipulations of said policy forms.
The printed Exceptions and Exclusion from the coverage of said Policy or Policies are set forth in
Exhibit B attached. Copies of the Policy forms should be read. They are available from the office
which issued this report.
This report (and any supplements or amendments hereto) is issued solely for the purpose of
facilitating the issuance of a policy of title insurance and no liability is assumed hereby. If it is
desired that liability be assumed prior to the issuance of a policy of title insurance, a Binder or
Commitment should be requested.
Please read the exceptions shown or referred to below and the exceptions and
exclusions set forth in Exhibit B of this report carefully. The exceptions and exclusions
are meant to provide you with notice of matters which are not covered under the terms
of the title insurance policy and should be carefully considered.
Zt is important to note that this preliminary report is not a written representation as to
the condition of title and may not list all liens, defects~ and encumbrances affecting title
to the land.
CLTA Preliminary Report Form (Rev 1/1/95)
Page 1
File No: 10022599
SCHEDULE A
The form of policy of title insurance contemplated by this report is:
CLTA Standard Owners
The estate or interest in the land hereinafter described or referred to covered by this report is:
A FEE
Title to said estate or interest at the date hereof is vested in:
Otay Project, L.P., a California Limited Partnership
The land referred to herein is situated in the County of San Diego, State of California, and is
described as follows:
SEE EXH:I[BTT "A" ATTACHED HERETO AND I4ADE A PART HEREOF
CLTA Preliminary Report Form (Rev 1/1/95)
Page 2
/
File No: 10022599
Exhibit "A"
All that certain real property situated in the County of San Diego, State of
Califor.nia, described as follows:
That portion of Parcel 4 of Parcel Map No. 18789, in the City of Chula Vista,
County of San Diego, State of California, filed in the Office of the County
Recorder of San Diego County on September 7, 2001, being more particularly
described as follows:
Commencing at an angle point on the Easterly boundary of said Parcel 4 being
the Westerly terminus of that course on the boundary of Parcel 1 of said Parcel
Map No. 18789 depicted on Sheet 3 of said Parcel Map No. 18789 as North
71°57'24'' East, 1091.24', said point being the Northerly terminus of the Westerly
right of way of La Media Road as dedicated on Chula Vista Tract No. 02-055 Otay
Ranch Village 6 Unit 2 "A" Map No. 1 according to Map thereof No. 14447 filed in
the said Office of the County Recorder on September 18, 2002, said point also
being a point on a 4336.00 foot radius curve, concave Westerly, a radial line of
said curve bears North 77°19'04'' East (Record North 77°18'51" East per said
Parcel Map No. 18789) to said point; thence along said Westerly right of way
Southerly along the arc of said 4336.00 foot radius curve through a central angle
of 00°39'06'', 49.32 feet to the True Point of Beginning; thence continuing along
said Westerly right of way Southerly along the arc of said 4336.00 foot radius
curve through a central angle of 03°24'43'', 258.21 feet; thence leaving said
Westerly right of way non-tangent to said curve South 76o40'26'' West, 266.27
feet; thence North 12°45'05'' West, 271.84 feet to a point on the proposed
Southerly right of way ("Street A" within Otay Ranch Village 2; thence along said
proposed Southerly right of way North 77o14'55'' East, 259.19 feet; thence
continuing along said proposed Southerly right of way South 70°47'53" East,
20.21 feet to the True Point of Beginning.
Assessor's Parcel Number: 644-030-11
CLTA Preliminary Report Form (Rev 1/1/95)
Page 3
File No: 10022599
SCHEDULE B
At the date hereof Exceptions to coverage in addition to the printed exceptions and exclusions in
said policy form would be as follows:
A. Property taxes, including general and special taxes, personal property taxes, if any, and any
assessments collected with taxes, for the fiscal year 2002 - 2003.
1st Installment: $33,362.73 Not Paid (Delinquent as of 12/11/02)
Penalty: $3,336.27
2nd Installment: $33,362.73 Not Paid (Delinquent as of 4/11/03)
Penalty (including cost): $3,346.27
Exemption: $0.00
Code Area: 01265
Assessment No.: 644-030-11
Affects the herein-described land and other land.
B. Supplemental or escaped assessments of property taxes, if any, assessed pursuant to the
Revenue and Taxation Code of the State of California.
C. A pending special tax levied by the district shown below, evidenced by the inclusion of said land
within the boundaries of a Mello-Roos (or other) Community Facilities District as disclosed by a
district map or diagram.
District No.: Community Facilities District 98-1 Open Space Maintenance District
(Otay Project, LLC-OVP-SPA-SPA One Village i West and portions
of Villages 2, 6, 7 and Planning Area 12)
Recorded: August 18, 1998 as File No. 1998-0523069 of Official Records
Tf formed, the District will have the power to levy special taxes. Any special tax, if and when
levied, may be collected with the property taxes.
1. Water rights, claims or title to water, whether or not shown by the public records.
2. An agreement to which reference is hereby made fo¢ full particulars,
Dated: October 28, 1993
By and between: City of Chula Vista, County of San Diego, State of California, and
Otay Vista Associates, a California Limited Partnership
Regarding: Indemnification, implementation of mitigation measures and
payment of certain fees in connection with the approval of the
general plan amendment, general and other development plans for
the Otay Ranch
Recorded: February 7, 1994 as File No. 1994-0084743 of Official Records
3. A document subject to all the terms, provisions and conditions therein contained.
Entitled: "Restated and Amended Pre-Annexation Development Agreement
with Otay Ranch, L.P."
Dated; March 4, 1997
Executed by: City of Chula Vista and Otay Ranch, L.P., a California Limited
Partnership
CLTA Preliminary Report Form (Rev.1/1/95)
Page 4
Pile NO: 10022599
SCHEDULE B - Continued
Recorded: May 12, 1997 as File No. 1997-0219970 of Official Records
4. A document subject to all the terms, provisions and conditions therein contained.
Entitled: "Affordable Housing Agreement"
Dated: December 16, 1997
Executed by: Otay Project LLC, a Delaware limited liability company and South
Bay Project, LLC, a Delaware limited liability company and the City
of Chula Vista, A California Municipal Corporation
Recorded: February 17, 1998 as File No. 1998-0079313 of Official Records
5. An easement for the purposes shown below and rights incidental thereto as shown or as
offered for dedication on the recorded map shown below.
Map: Parcel Map No. 18471
Easement purpose: Future 40 foot wide private access
Affects: The Northerly portion
6. A document subject to all the terms, provisions and conditions therein contained.
Entitled: "Desiltation and Maintenance Agreement with Otay Project L.P.,
(Poggi Canyon Drainage improvements)
Dated: October 19, 1999
Executed by: Otay Project, L.P., a California Limited Partnership, Prowswood-
Matsushita Otay Partners, LLC, a California limited liability company
as owner, Centex Homes, a Nevada General Partnership, PHI Otay
Rancho Associates, LLC, a Delaware limited liability company and
the City of Chula Vista
Recorded: .June 28, 2000 as File No. 2000-0341829 of Official Records
7. A deed of trust to secure an indebtedness in the amount shown below, and any other
obligations secured thereby.
Amount: $10,000,000.00
Dated: September 22, 2001
Trustor: Otay Project L.P., a California Limited Partnership
Trustee: Bar K, inc., a California Corporation
Beneficiary: Gold Mountain Financial institution, inc., a California Corporation
Address: 201 LaFayette Circle, 2® Floor, LaFayette, CA 94549
Recorded: October 3, 200/~ as File No. 2001-0713811 of Official Records
Affects the herein-described land and other land.
An agreement to modify the terms and provisions of said deed of trust as therein provided
Executed by: Gold Mountain Financial Tnstitution, Inc. and Otay Project L.P. and
Otay Ranch Development, LLC
Recorded: April 30, 2002 as File No. 2002-0364348 of Official Records
CLTA Preliminary Report Form (Rev 1/1/95)
Page 5
File No: 10022599
SCHEDULE B - Continued
8. A deed of trust to secure an indebtedness in the amount shown below, and any other
obligations secured thereby.
Amount: $100,000.00
Dated: April 16, 2002
Trustor: Otay Project L.P., a California Limited Partnership
Trustee: Bar K, Inc., a California Corporation
Beneficiary: Bar K, Inc., a California Corporation
Address: 201 LaFayette Circle, 2n~ Floor, LaFayette, CA 94549
Recorded: April 30, 2002 as File No. 2002-0364349 of: Official Records
Affects the herein-described land and other land.
Requirements:
NONE
CLTA Preliminary Report Form (Rev 1/1/95)
Page 6
No: 10022599
INFORMATZONAL NOTES
NOTE NO. 1: PRIVACY NOTICE (15 U~S.C. 6801AND 16 CFR PART 313):
WE COLLECT NONPUBLIC PERSONAL INFORMATION ABOUT YOU FROM INFORMATION
YOU PROVIDE ON FORMS AND DOCUMENTS AND FROM OTHER PEOPLE SUCH AS YOUR
LENDER, REAL ESTATE AGENT, ATTORNEY, ESCROW, ETC. WE DO NOT DISCLOSE ANY
NONPUBLIC PERSONAL INFORMATION ABOUT OUR CUSTOMERS OR FORMER CUSTOMERS
TO ANYONE, EXCEPT AS PERMITTED BY LAW. WE RESTRICT ACCESS TO NONPUBLIC
PERSONAL INFORMATZON ABOUT YOU TO THOSE EMPLOYEES WHO NEED TO KNOW THAT
INFORMATION IN ORDER TO PROVIDE PRODUCTS OR SERVICES TO YOU. WE MAINTAIN
PHYSICAL, ELECTRONIC AND PROCEDURAL SAFEGUARDS THAT COMPLY WITH FEDERAL
REGULATIONS TO GUARD YOUR NONPUBLIC PERSONAL INFORMATION.
NOTE NO. 2: SENATE BILL 2319 EFFECTIVE 3ANUARY 1, 1991, REQUtRES THAT UNLESS
WAIVED BY THE CALIFORNIA FRANCHISE TAX BOARD, A BUYER MUST WITHHOLD FROM
ANY SELLER WHO IS NOT A CALIFORNIA RESIDENT, A SUM EQUAL TO 3 1/3°/o OF THE
SALES PRICE OF THE PROPERTY CONVEYED.
NOTE NO. 3: THE INFORMATION ON THE ATTACHED PLAT IS PROVIDED FOR YOUR
CONVENIENCE AS A GUIDE TO THE GENERAL LOCATION OF THE SUB3ECT PROPERTY.
THE ACCURACY OF THIS PLAT IS NOT GUARANTEED, NOR IS IT A PART OF ANY POLICY,
REPORT OR GUARANTEE TO WHICH IT MAY BE ATTACHED.
NOTE NO. 4:CALIFORNIA TNSURANCE CODE SECTION 12413.1 REGULATES THE
DISBURSEMENT OF ESCROW AND SUB-ESCROW FUNDS BY TITLE COMPANIES. THE LAW
REQUIRES THAT FUNDS BE DEPOSITED IN THE TITLE COMPANY ESCROW ACCOUNT AND
AVAILABLE FOR WITHDRAWAL PRIOR TO DISBURSEMENT. FUNDS DEPOSITED WITH THE
COMPANY BY WIRE TRANSFER MAY BE DISBURSED UPON RECEIPT. FUNDS DEPOSITED
WITH THE COMPANY VIA CASHIER'S CHECK OR TELLER'S CHECK DRAWN ON A
CALIFORNIA BASED BANK MAY BE DISBURSED ON THE NEXT BUSINESS DAY AFTER THE
DAY OF DEPOSIT. IF FUNDS ARE DEPOSITED WITH THE COMPANY BY OTHER METHODS,
RECORDING AND/OR DISBURSEMENT MAY BE DELAYED. ALL ESCROW AND SUB-
ESCROW FUNDS RECEIVED BY THE COMPANY WILL BE DEPOSI'TED WITH OTHER ESCROW
FUNDS IN ONE OR MORE NON-INTEREST BEARING ESCROW ACCOUNTS OF THE
COMPANY IN A FINANCIAL INSTITUTION SELECTED BY THE COMPANY. THE COMPANY
MAY RECEIVE CERTAIN DIRECT OR INDIRECT BENEFITS FROM THE FINANCIAL
INSTITUTION BY REASON OF THE DEPOSIT OF SUCH FUNDS OR THE MAINTENANCE OF
SUCH ACCOUNTS WTTH SUCH FINANCIAL INSTITUTION, AND THE COMPANY SHALL HAVE
NO OBLIGATION TO ACCOUNT TO THE DEPOSITING PARTY IN ANY MANNER FOR THE
VALUE OF, OR TO PAY TO SUCH PARTY, ANY BENEFIT RECEIVED BY THE COMPANY.
THOSE BENEFITS MAY INCLUDE, WITHOUT LIMITATION, CREDITS ALLOWED BY SUCH
FINANCIAL INSTITUTION ON LOANS TO THE COMPANY OR ITS PARENT COMPANY AND
EARNINGS ON INVESTMENTS MADE WITH THE PROCEEDS OF SUCH LOANS,
ACCOUNTING, REPORTING AND OTHER SERV'rCES AND PRODUCTS OF SUCH FINANCIAL
INSTITUTION. SUCH BENEFITS SHALL BE DEEMED ADDITIONAL COMPENSATION OF THE
COMPANY FOR TTS SERVICES IN CONNECTION WITH THE ESCROW OR SUB-ESCROW.
WIRING INSTRUCTIONS FOR THIS OFFICE ARE:
UNION BANK
530 "B" STREET
SAN DIEGO, CALIFORNIA 92101
BANK NUMBER: 122000496
CREDIT: Commonwealth Land Title Co.
ACCOUNT NUMBER: 9100899563
RE: 10022599
PLEASE INDICATE COMMONWEALTH ESCROW OR TITLE ORDER NUMBER
Form 2210-11 (6/2/98)
Page 7
Exhibit B (Rev. 6/2/98)
STANDARD COVERAGE POLICY - 1990
EXCLUSIONS FROM COVERAGE
EXCEPTIONS FROM COVERAGE - SCHEDULE B, PART I
CALIFORNIA LAND TITLE ASSOCIATION
HOMEOWNER'S POLICY OF TITLE INSURANCE (6/2/98)
EXCLUSIONS
AMERICAN LAND TITLE ASSOCIATION
RESIDENTIAl. TITLE INSURANCE POEICY (6-2-87)
EXCLUSIONS
Form 2210-11 (6/2/98)
Page 8
~ItlIBIT D
GENERAL PROVISIONS
TO: CHICAGO TITLE COMPANY Escrow Number: 230~0151-47
Date: October 17, 2002
Time i5 of ~ csacm:e of thes~ inmzu~ti~s. If this e~row is not ia a cm~iPiou m cfom by the T/lq~. L1MFF
DATI~ as lnovidcd for h~¢in ~md wfittel~ ~ for canaallatfon is t~mive..d by you frm:n am)' Im"ixmlpal to
esarow after said date, you shall act m accordance with paragraph 7 of th~ (3e'm:r~ lamvi~ficma, lfa, o c~'flicting
ins~uclion or demand roi' cancallalien is m~e, you will pro~e~d to clog this ~x~w wh~ ~ !tahara:ii. Is haw
cumplied with a~c ~screw iaam~:tio~, 1~ the event one or mom of tim G~mm~, Pmviliom m~ hal~t~,h.~ i.wa/dd tn
judicial proc.~rding~ those ~aiuing wfl! ~ntinue to be vpararlve. Any amm~flmmta of or ml~],~,~-.,n Io any
instructions a.rfccting ~tscax~w mast be in writing. You att authorized m order dmmands for, and pay~ ~ close of
escrow any encun~an~s of rec~ ~v~s~ary to place title in the cou~cio~, called f~ without further
authorization. You asc fm-ther anthorizexl, prior m the cio.nc of esr:row, to pay f~m funds on d~l:mai£ any fees
nec~sary to obtain any darned and/ur ~ ~ may he I'et/ui/~d in tt~ w,t::re, w an~ at the clos~ of ese~w
thc parties as app~pfiate. Th~ pemcapals ..,,ill hand you a.ny funds and ill~tl'ull~ts t~ [tom each re~c6~ely
to c~mplcte this escrow. I~t~a'est on any new financing may b~gir~ to a~..me on the date fozn foud~/~ds are
disbur~e:d by the new lender, and banrow~r agrees to pay ~arne in accon:hae~ with l~nder'~
2 You are m. sllxtoteti tn tieliver and/or re¢otfl all documents and dishur,t~ all font, s when you c~ comply with
huwact~ons and issue any title m~uraace poliay as ~alled for herein. Th~a insmmtious, loather with any
muen~u and/or ~uPl~l~me:nts, may he executed in counterparts and. tagethar aha.l] c. omfilnte orm amd the aam~
document. If the~e i~wactions relate to a sale, buyer agr~ea to buy aad ~..llet a~s to sell ng~n tim ~ and
condiucms hereof. All doenments, balmcca acd statamemts du~ th~ und~-tsigne:d are to be maile, d m the
:~,'lel,'~-sae~ ~hown her=in, un.l~ss otherwise dlrect~, In th~ avgnt tha~ amy pa~y to this ea~:~w u~ilizea
transrmttad signgd documents, all par'des hereby agree to accept and hereby insnuct the es~'ow bolflar In t-..ly upena
such documenu ~ if they bore original signatlxlas, Buyer and salles ~ ack~amwladgg th~ ~ ~ to be
recorded bearing non c~igthal ffacramile/s~gnamres wiI1 not b= acccptnd for ~ by the coum'y ~.
3. The phrase "close of escrow" (or COE) as used in this escrow mgana th~ ~ on which, doetam~nl~ ~ r~c~,
tmle~ othe. n~ise specified.
Assume a 30 day ~ath in any prora/.ion herein pravided, s. nd unl~ other~nse iaalxucu~ y~u ttr~ lo tree th=
toformaUon contained iu thc lateat availabl~ ox stamnmat, includillg ally supplemental taxes of~, rental
stalement as provided by seller ~ benefir, iary's or a~socia6on statctrmat~ d¢live~-un:l lam ~c:mw for
Upon close of cs r:row you ~te inslnlc, te~l to cha~g~ oux raslmctive atx:oun[a th~ ~ atllilzltabk~ to ~.aclt, ia~::luding
but not Ih:nj. ted to costs as pmvh:lt:~ for hm'~ a~or in m:cor0~-,'~ with our tasp~flva as6matad ~
attm:hed hea~.xo and mad~ a gan hereof.
Reco~iatiou of any instroments daliwred through r/~ escrow, ifnec~sa~ry or proper for 6'~ isguatm~ of fha
of title imut-an¢c called for. is amhm'ized. 'No examination or insu.ma~ ~ to the anmtmt or pa~t
property taxes is requi/ed unl?ss sp~n:ifically rexlCtested.
7 If demand to cancel is submtmd at2er the Tin~ Lin6t Da~e. a~y Iniucipal m r~a:lue~6ng you m ~ I~fi! es, re'ow
~hall file n. otiec of de.land to cancel in your office in wrkil~g, you s.~xall within three (3') w~ddng di~
mall by cerlified toail one copy of ~uch notice to each of the othes pdndpata at the ~la,...r~ atl~ed ~ ~.hta
Unless vaittcn obj=ctinn thexeto is filed in your offi.¢e by a In'al¢ipal wtflfln fi/~ (15) calendar days ~ dato of
such mailing, you mm inslmc, md to caned tl~ escrow. If this i~ a salt: et~ax~w, you may ~mrn ~le;nder'a
and/ur fu~,l~ upon lender's dertu~.
g, I~ the eveut th~ this escrow is c~ance, le& any f~es or chaxgas due Chicago Title Compm~y i~cludiug
fe~ and any expea~ditore~ incartred ~r authorized shall be paid from funds ou &'lmSit unless otherwi~
agl~d to or detm-mlngd by a cou/I of competent jrtrisaiction. Ulmn Payll~t thea'l~of, ie[~'ll d~l~lJ,[l~ll~qt!t ~
nmn~¥s to the respective parhes depositing same, or a~ ord~ecl by the court, ~d void ~ay cx~cut~l i~sm.un~at~.
9. II Chun: is no wntt~a activity by a principal to thi~ escrow witMn any six.mm~th period ai~r the Thne Limit Date
s~t fo~ hex~in, C'b. lcago Title Company may. at its option, t~r~nar~ its a~y obligation and ~ane~,l th~
r~tUmlng all documents, moneys or 0thru- ilcms held, lo the real. clive panles enti&d ther~o, ]ma any rims and
ciaar~-~ as provided he~ci~-
Chicago Title Company General Provisions - Page 2
10 If, for :my renzon, funciz ere remingd or remmn i~ escrow alk~r the closing da~, you ~ d~]uc~
r~bl~ monthly charge e.s custodian, of not less ~hat $25.00 t~r month, unless othc~ise ~
1 L In ~he even£ ~l you should receive ar b~-~lllc awa~ of conflicting dely,~na~ or clain~ with re. spe.~t lo this
or dic riah~ of any of Om pmti,s her~m, or any mOn=y or p~pen~ d,[x~i~i ho~r~ ~ sh~ll haw the ab/olu~
fight at yom opttOn to discontinue ~y or ~1 fur~r ~ un~ such co~t is ~1~ ~ your
[ 2. h ~c =vent ~at ~y Off~ tO P~, ~sit ~p~ or ~y ~ f~ of ~ A~I
~s cs~ow, ii ix u~ ~a s~h d~t is cff~tive o~y ~ rang ~ p~iee ~g
You, ~ =s~ow ~l~r, ~c not to bc ~n~med wi~ ~ ~ of su~ d~t ~d ~
~spo~ibih~ or h~ili~ whaioev~ for ~ s~sion of ~y ~t ~ ~ ~ of ~y ~
c~di~on ~bs~qu~t ~ ~c cMiing of ~is
~ven~ C~a of 1986 as ~n&d, ~d ~ Sc~o~s 18662 ~d 18~8 of ~ C~fo~a R~e
is ~ fom~ pc~on or a ~n-~siden~ ~r su~ S~on, nor (d) ob~ a n~ f~ ~ or
16. ~ you ~y a ~m~d m pay ~ ~l] a ~olving line of ~ffit or ~ui~lmc 1o~. you ~ h~by im~
· ~no~ when ~scn~ ~r pay~nL you ~ auto.cd to noIi~ ~1 ~s ~m fll~
~o~tiom or o~ ban~ta. You shall hove no ob~ai~ to ~o~t ~ ~ v~uc ~
unless o~ise massed. You ~ffi nm ~ ~s~nsibi~ for my delay ~ dos~g ff ~n~ m~
~d o~ ~cfi~ ~ing m [~ escrow m &e ~pi~tian of ~x (~ yc~ ~m ~ ~ of ~
emulation ~emof, ~ut h~i~w ~ ~t ~nodcc
Chicago Title Company General Provisions - Page 3
IMPORTANT NOTICE
F. xcelx for wire tr~t~fc~, funds ~ to chi~ ~w ~e ~u~je~ ~ av~ ~ ~ by
Scion 1~13,1 of thc C~a ~ Co~ CAS~'S, ~T~ or ~LL~'S c~s, pay~lc
~o C~O0 ~T~ COMPLY ~ genc~ly av~[~ for ~sb~t on ~ n~t ~n~ ~ foUow~
· e date of ~siL
Ot~ f~ of pay~t ~y ~ ~ten~d deI~s
~a~mmts i~sed ~ S~
~ire tr~f~ l~ma~ av~l~a u~n ~)
NOT PRO~E ~ ~VI~ NOR HAS ~ ~E ~ ~G~TION, ~RW~A~O~
~ ~$AC~ON W~ A~ TAX, 8E~ OR
AS TO ~CH ~.
A~ A~ ~E~OOD A~ AGg~ TO ~Y
~ SELLER
1NIT~ INITIAL
[N1TIAL INITIAL
Cun-ent Adchess; Curreng A dllge~'.
Telephone: Telephane:
EXHIBIT E
Form of Affidavit
[To be inserted]
COUNCIL AGENDA STATEMENT
Item:
Meeting Date: 11/05/02
ITEM TITLE: Resolution certifying the Qualified list of Design-Build
Entities (Fire Stations) pursuant to Municipal Code § 2.57.030(a)(3).
Resolution accepting the City Manager's certification of the
qualifications of the Design-Build Team, approving a Design Build
agreement with Erickson Hall Construction Co. for the provision of
services required to design and construct a 2,300 square foot addition to
the existing Fire Station No. 4, appropriating from the General Fund and
from the Public Facilities Development Impact Fee Fund to Capital
Improvements Project for Fire Station No. 4 and authorizing the Mayor to
execute said Agreement.
SUBMITTED BY: Andy Campbell, Director of Buildingand Park Construction ~
REVIEWED BY: City Manag~ (4/Sths Vote: Yes X No._)
During the Fiscal Year 2002-2003 CIP Budget process, staff informed Council that it was
developing a plan for the design and construction of a 2,300 square foot addition to the existing
Fire Station No. 4 that serves as the Fire Training Facility located at the northeast comer of East
H Street and Paseo Ranchero in Rancho Del Rey. The project is ready to begin the design phase.
The first resolution will certify the list of Design-Build Entities qualified to provide Fire Station
specific services to the City. The second resolution will award to Erickson-Hall Construction a
Design Build Agreement for this project and appropriate funds for the design phase.
RECOMMENDATION: That the City Council certify the Qualified Design-Build Entity list
(Fire Stations), approve a Design Build Agreement with Erickson-Hall Construction for the
provision of services required to design and construct the 2,300 square foot additior/to Fire
Station No. 4, appropriate funds and authorize the Mayor to execute said agreement.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
BACKGROUND:
Design-Build as a project delivery system was approved through Charter Amendment in March
2000. In October 2000, the Council adopted Chapter 2.57, Design-Build Contracts, establishing
the procedure for the selection and award of Design-Build contracts. Municipal Code 2.57.030
sets out the procurement procedure whereby either a project specific Request for Proposal (RFP)
is distributed, a selection is made off the Qualified List of Design-Build Entities, or a Sole-
/_6-/
Page 2, Item: /f~
Meeting Date: 11/05/02
Source award is made. On July 30, 2002, the Department of Building and Park Construction
issued an RFP for Design Build Services (D/B) to assist staff in the work required to design and
construct Fire Station No. 7 and additional Fire Stations. On August 20, 2002, the City received
eight proposals in response to the RFP and subsequently reviewed the eight firms, based upon
this review a short list of four firms was established. The four firms were Rudolph and Sletten,
Inc., Douglas E. Barnhart, Inc., Erickson-Hall Construction, and HB&A Architects, Inc. A
selection committee, appointed by the City Manager, reviewed and evaluated the proposals and
conducted interviews with all four firms. The four firms were ranked and the top three firms
were placed on the list of Qualified Design-Build Entities (Fire Stations), for certification by the
Council. Those firms are Rudolph & Sletten, Inc., Douglas E. Bamhart, Inc. and Erickson-Hall
Construction. Erickson-Hall Construction, one of the firms placed on the Qualified list, was
selected as the most qualified firm to handle this type of project. Municipal code 2.57.030 (a)(3)
requires certification by the City Manager that the most qualified firms have been interviewed
and the selected firm is capable of providing the services and it is in the best interest of the City
to proceed in this manner.
It is recommended that City Council accept the City Manager's certification and authorize
execution of the agreement. Justification for the use of Qualified list of Design-Build Entities is
based upon the following:
1. Erickson-Hall Construction .was the #2 ranked firm after the completion of RFP process
to locate firms uniquely qualified to perform Fire Station design and construction.
Erickson-Hall Co. and the Architect, Michael Merino, have been involved in the design
and construction of numerous fire fighting support facilities. Most recently, Rancho
Santa Fe Stations No. 2 and No. 5 and Fire Station Renovations and Additions for the
Cities of Arcadia and Manhattan Beach.
2. Time is of the essence regarding these facilities. This modification is needed to ensure
the outfitting of equipment to be used at Fire Station 7 to serve the Eastern Territories.
3. Best interest of the City to proceed in this manner to ensure the timely completion of the
facilities necessary to better serve the growing population of the City.
DESIGN/BUILD
Staff is reconunending the City enter into an agreement with Erickson-Hall Construction for the
provision of services required to design and construct the 2,300 square foot addition to Fire
Station No. 4. This will be the City's third utilization of the design/build process as a
construction management technique. The Police Building was the first Design/Build project, the
Nature Center's Shark and Ray Experience the second. The design/build process includes
functions that are quite different from the design/bid/build process typically used for City
construction projects.
The design/build process employs a single entity, either a general contractor or an architect,
which provides both design and construction services. In the typical scenario, a design/build
oriented general contractor provides the design and construction services. Alternatively, an
architectural fim~ may provide the design services and hire the general contractor on a consulting
basis for the construction phase. In this later scenario, the architectural firm will be held
responsible for all aspects of the project. In the case of the addition to Fire Station No. 4, the
!
Page 3, Item: ~
Meeting Date: 11/05/02
design/build process will place sole responsibility for delivery of the project upon Erickson-Hall
Construction, a general contractor. Erickson-Hall Construction will subcontract for the design
and consulting services, and trade contracts during the construction phase. Generally utilization
of a design/build process will provide savings in cost and time because the entire project is
managed and constructed by a single entity, thereby eliminating the difficulties of dealing with
multiple entities and overhead on one project.
The design/build process provides the City the flexibility to work with the best contractors in the
County, as it does not necessarily require award to the lowest responsible bidder.
PROJECT SCOPE AND CONTRACTUAL REQUIREMENTS
As proposed, the Design-Build Agreement with Erickson-Hall Construction will provide the City
with a fully functional 2,300 square foot addition to Fire Station No. 4 that provides service to
the eastern portion of the City. The scope of work includes but is not limited to the following:
Design and construct a completed and fully functional 2,300 square foot addition to Fire
Station No. 4 including the facilities and site-work required. The addition shall include,
but not be limited to all components described in the Schematic Design.
Erickson-Hall Construction shall perform all services, work and obligations as described for the
not to exceed amount of $771,976, which shall include Design Services, General Conditions,
Insurance, Bonds and all Hard Construction costs necessary to provide a ~lly completed and
functional Project. At 90% complete documents a Guaranteed Maximum Price (GMP) will be
established as part of the agreement, which will include, but not be limited to, the cost for all
labor, equipment, and material to design and build a fully functional 2,300 square foot addition
to Fire Station No. 4 in accordance with all applicable building codes.
CHANGE ORDERS
Under the design/build process, change orders are handled differently than under the
design/bid/build process. Change orders are only returned for Council approval if they exceed
the approved GMP, or are £or additional work requested by City, which results in a significant
change to the original scope. Otherwise, change orders are reviewed/approved by staff and the
design builder. This practice is commonplace when using the design/build construction
technique.
An example of a change in the scope of work could be unanticipated subsurface conditions
causing substantial additional work by Erickson-Hall Construction that was not anticipated in the
original agreement (a preliminary soils evaluation and report was completed by a qualified
contractor which suggests that the soils should not be an issue). Therefore, depending on the
significance of problematic discoveries on the site, staff may be required to process a change
order due to a change in scope of work.
PROJECT COMPLETION DATES
Erickson-Hall Construction has agreed and the contract reflects the following completion dates:
· Substantial Completion: July 1,2003.
Page 4, Item: I~
Meeting Date: 11/05/02
Substantial Completion shall be that stage in the progress of the construction when all
Work on the Project is sufficiently complete in accordance with the Construction
Documents so that City can fully utilize entire Project; Substantial Completion shall
further mean that all goods, services and systems to be provided under the terms and
conditions of the Construction Documents are in place and have been initially tested, and
are operationally functional, subject only to final testing, balancing and adjustments and
normal Final Completion punch list Work.
· Final Completion shall occur at the conclusion of construction when all Work on the
Project is sufficiently complete in accordance with the Construction Documents so that
City can fully occupy and utilize entire project; Final Completion shall further mean that
all goods, services and systems be provided under the terms and conditions of the
Construction Documents are in place and have been tested, and are operationally
functional.
ENVIRONMENTAL STATUS
The Environmental Review Coordinator has reviewed the prolSosed project for compliance with
the California Environmental Quality Act and has determined that the project qualifies for a
Class 1 categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. Thus,
no further environmental review is necessary.
FISCAL IMPACT:
Erickson-Hall Construction shall perform design services, general conditions, insurance, bonds,
construction and construction management for the not to exceed amount of $771,976. At 90%
complete documents a GMP will be established as part of this agreement, which will include, but
not limited to, the cost for all labor, equipment, and material to design and build a fully
functional 2,300 square foot addition to Fire Station No. 4 in accordance with all applicable
building codes. The appropriation of $1,223,829 ($849,439 Public Facilities Development
Impact Fee and $374,390 General Fund) includes a design and construction budget of $771,976,
$240,596 for Fumiture, Fixtures and Equipment ("FFE"), $100,000 for City Staff Time and
contingencies of $111,257.
Attachments: Attachment 1 Design/Build Agreement
Attachment 2 - Project Budget
J:\BPC~BPC Administration~AgendaWire Station #4 Al 13.doc
RESOLUTION NO. 2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CHULA VISTA CERTIFYiNG THE QUALIFIED
LIST OF DESIGN-BUILD ENTITIES (FIRE STATIONS)
PURSUANT TO MUNICIPAL CODE 2.57.030(A)(3).
WHEREAS, in October 2000, the Council adopted Chapter 2.57, Design-Build
Contracts, establishing the procedLtre for the selection and award of Design-Build contracts; and
WHEREAS, Municipal Code 2.57.030 sets out the procurement procedure
whereby either a project specific Request for Proposal (RFP) is distributed, a selection is made
offthe Qualified List of Design-Build Entities, or a Sole-Source award is made; and
WHEREAS, on July 30, 2002, the Department of Building and Park Construction
issued an RFP for Design Build Services to assist staff in the work required to design and
construct Fire Station No. 7 and additional Fire Stations; and
WHEREAS, on August 20, 2002, the City received eight proposals in response to
the RFP and subsequently reviewed the eight firms, from these reviews a short list of four firms
was established; and
WHEREAS, a selection committee, appointed by the City Manager, reviewed and
evaluated the proposals and conducted interviews with all four firms; and
WHEREAS, thc three firms recommended for placement on the Qualified List
are:
1. Rudolph & Sletten, Inc.
2. Douglas E. Bamhart, Inc.
3. Erickson-Hall Construction; and
WHEREAS, staff recommends that these firms be placed on the Qualified
Design-Build Entity list (Fire Stations) for Certification by the City Council.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby certify the Qualified Design-Build Entity list.
Presented by Approved as to form by
Joh . Kaheny~
Andy Campbell ~torney U
Director of Building and Park
Construction
J:'Attorney\RESO\Firc Station #2 adoc
RESOLUTION NO. 2002-
RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING THE CITY MANAGER'S
CERTIFICATION OF THE QUALIFICATIONS OF THE
DESIGN-BUILD TEAM, APPROVING A DESIGN BUILD
AGREEMENT WITH ERICKSON HALL CONSTRUCTION CO.
FOR THE PROVISION OF SERVICES REQUIRED TO DESIGN
AND CONSTRUCT A 2,300 SQUARE FOOT ADDITION TO
THE EXISTING FIRE STATION NO. 4, APPROPRIATING
FROM THE GENERAL FUND AND FROM THE PUBLIC
FACILITIES DEVELOPMENT IMPACT FEE FUND TO
CAPITAL IMPROVEMENTS PROJECT FOR FIRE STATION
NO. 4 AND AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT.
WHEREAS, on July 30, 2002, the Department of Building and Park Construction
issued an RFP for Design Build Services to assist staff in the work required to design and
construct Fire Station No. 7 and additional fire stations; and
WHEREAS, on August 20, 2002, the City received eight proposals in response to
the RFP and created a short list of four finns; and
WHEREAS, a selection committee, appointed by the City Manager, reviewed and
evaluated the proposals and conducted interviews with all four firms; and
WHEREAS, Erickson-Hall Construction, one of the firms placed on the List of
Qualified Design Build Entities (Fire Stations), was selected as the most qualified firm to handle
this type of project; and
WHEREAS, pursuant to CVMC § 2.57.030, the City Manager must certify that
the most qualified firms have been interviewed and selection ora firm offthe Qualified List is in
the best interest of the City and the City Manager does so certify based upon the following:
1. Erickson-Hall Construction was the #2 ranked firm after the
completion of RFP process to locate firms uniquely qualified to
perform Fire Station design and construction.
2. Erickson-Hall and the architect, Michael Merino, have been
involved in the design and construction of numerous Fire Fighting
Support Facilities, most recently Rancho Santa Fe Fire Stations
No. 2 and 5 and Fire Station Renovations and additions for the
cities of Arcadia and Manhattan Beach.
3. Time is of the essence regarding this lCacility. This modification is
needed to ensure the outfitting of equipment to be used at Fire
Station 7 to serve the Eastern Territories.
4. Best interest of the City to proceed in this manner to ensure the
timely completion of the facilities necessary to better serve the
growing population of the City.
WHEREAS, staff recommends that the City Council approve a Design Build
Agreement with Erickson-Hall Construction and appropriate funds therefore.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby accept the City Manager's recommendation to select a Design Builder
off the list of Qualified Design Build Entities (Fire Stations) and approves the Design Build
Agreement with Erickson-Hall Construction Co. to design and construct the 2,300 square foot
addition to Fire Station No.4, a copy of which shall be kept on file in the office of the City
Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is
hereby authorized to execute said Agreement on behalf of the City of Chula Vista.
BE IT FURTHER RESOLVED that the sum of $374,390 from the General Fund
and $849,439 from the Public Facilities Development Impact Fee Fund is hereby appropriated
for this project
Presented by
Approved as to form by
~Ælrlkø
Jo . Kaheny
City Attorney
Andy Campbell
Director of Building and Park
Construction
J:\Attorney\RESO\Firc Station #4 b_doc
/:3r 7
ATTACHMENT 1
DESIGN/BUILD AGREEMENT
This Agreement is made and entered into this 22nd day of October 2002, by and
between THE CITY OF CHULA VISTA (herein "City"), a municipal corporation, and
Erickson-Hall Construction Co. ("Design Builder or D/B"). City and D/B are sometimes
hereinafter referred to as Parties ("Parties").
RECITALS
WHEREAS, the project, Fire Station No.4, is an addition to an existing facility in the
City, and
WHEREAS, the City of Chula Vista in an on-going effort to expand the services to
the community has planned for this addition to Fire Station NO.4 located in the Rancho Del
Rey area of the City.
WHEREAS, on July 30,2002 an RFP (Exhibit 4) was circulated for a design builder
to design and build Fire Station NO.7 and additional Fire Stations based upon preliminary
designs which had been previously prepared; and
WHEREAS, on August 20, 2002 the City received eight bids in response to the RFP;
and
WHEREAS, after review by a City selection committee four respondents were invited
for interviews.
WHEREAS, all four respondents were interviewed and based upon the RFP
response for Fire Station 7 (Exhibit 3) and interview, Design Builder was placed on the list
of Qualified Design-Build Entities to provide Design-Build Services for Fire Stations to the
City; and,
WHEREAS, after discussion with Design Builder (D/B), the City Manager certified
pursuant to Municipal code § 2.57.030 that it was in the City's best interest to proceed in
this manner; and,
WHEREAS, Design-Builder (D/B) was selected as the respondent who best met the
design, monetary and time criteria of the project with whom City could negotiate an
agreement; and
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein:
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THE PARTIES AGREE:
Section 1:
General Scope of Work to Be Performed bv D/B
1.1 In accordance with the terms set forth in this Agreement and the RFP for the
Fire Station No. 4 project, D/B shall design and construct for the City: a
completed and fully functional 2,300 square foot addition to the existing fire
station (referred to hereafter as "Project") including the facilities and site-work
required to provide fire service to the eastern territories of the City. The
project shall include, but not be limited to all components outlined and
described in the attached drawings titled "Fire Station #4 Addition"
(Attachment A of the RFP). Fire Station No.4 is located at the northeast
corner of East H Street and Paseo Ranchero in Rancho Del Rey in eastern
Chula Vista (see Exhibit 1).
1.2 . The services to be provided by D/B are generally to be performed in 3
"Phases"; the services to be provided in each Phase are specified elsewhere
in this Agreement.
1.3 The D/B shall:
1.3.1 Perform all services, work and obligations as described herein for
the Guaranteed Maximum Price ("GMP") determined pursuant to
Section 11 of this agreement. The GMP shall not exceed the
amount of $771,976 which shall include all Hard Construction Costs
necessary to provide a fully completed and functional project,
including but not limited to, the cost for all labor, equipment, material
and the D/B Fixed Fee which includes fees and expenses of any
type, including all expenses under this Agreement, associated with
completing the project, whether on-site or off-site, any reimbursable
cost (as defined in Section 11.2), and the D/B Contingency Fund.
Any cost incurred by D/B in excess of said GMP shall be the sole
responsibility of the D/B unless a change order is approved by the
City pursuant to Section 7 and 12 of this Agreement. All funds
remaining in the GMP at completion of the project shall belong to the
City.
1.3.2 Substantial Completion: July 1, 2003
Substantial Completion shall be that stage in the progress of the
construction when all Work on the Project is sufficiently complete in
accordance with the Construction Documents so that City can fully
utilize entire Project; Substantial Completion shall further mean that
all goods, services and systems to be provided under the terms and
2
J:IBPCIBPC AdministrationlDesign Build Agreements\#4 Design Build Agmt 10-11·02.doc
conditions of the Construction Documents are in place and have
been initially tested, and are operationally functional, subject only to
final testing, balancing and adjustments and normal Final
Completion punch list Work.
1.3.3 Achieve "Final Completion" (as defined in §14.2) as established in the
Project Schedule.
Section 2:
General Obliaations of Citv
2.1 City shall be obligated as follows:
2.1.1 Designate a representative (or representatives) who is authorized to
act on behalf of City with respect to the Project, except as to those
decisions specified herein or by law that require authorization by the
Chula Vista City Council;
2.1.2 Make decisions with reasonable promptness to avoid delay in the
orderly progress of DIB's services per the Project Schedule;
2.1.3 Pay for and cause to be completed all necessary environmental
studies and obtain environmental approvals and/or permits with
reasonable promptness to avoid delay to the orderly progress of
D/B's performance per the Project Schedule;
2.1.4 At the request of D/B, City will use its best efforts to provide D/B with
any available information about the Project Site geotechnical soil
conditions; it will, however, be the responsibility of D/B to take all
reasonable steps to verify all such information as it deems necessary
to perform its services under this Agreement. City does not warranty
to D/B the accuracy or completeness of any such information.
2.1.5 Cooperate with D/B in identifying, processing and securing required
permits, licenses and inspections in a timely fashion; however, this
duty to cooperate does not relieve D/B of its primary obligations to
identify, apply for and secure all necessary permits (except as
provided in 2.1.3), licenses and inspections in a timely manner.
2.1.6 Make payments to D/B in the amounts and in accordance with the
terms set forth below.
2.1.7 Issue Certificate of Substantial Completion when City reasonably
determines the Project has achieved Substantial Completion as
defined below in Section 14.1.
3
J:\BPCIBPC AdministrationlDesign Build Agreements\#4 Design Build Agmt 10·11-02.doc
2.1.8 Issue a Notice of Acceptance when City reasonably determines the
Project has achieved Final Completion as defined in Section 14.2.
2.2 Citv Review Process. City shall review Design Development Drawings
(DD's), 50% Construction Drawings (CD's) and 90% Construction Drawings (CD's) which
shall allow construction of Project in conformity with the RFP for Project. For each DIB
submission, City shall have fifteen (15) working days to review, approve, conditionally
approve or deny.
Section 3:
General Obliaations of D/S
3.1 D/S shall be obligated as follows:
3.1.1 At all times in performing its services under this Agreement to design
and deliver the best possible Project consistent with standard of care
in Section 3.3 that satisfies the time, monetary, quality and design
parameters set forth in this Agreement;
3.1.2 Design and construct the Project on time, consistent with time
frames set forth in the Project Schedule, and in such a manner that
the GMP or Contract Time of the Project shall not be exceeded, but
if D/S reasonably believes·that any action, inaction, decision or
direction being made by City or agent for the City will likely result in
the GMP or Contract Time being exceeded or the Project being
completed late, D/S will notify City at Project Team meeting and in
writing within five (5) calendar days of discovering such action,
inaction, decision, or direction. Included in such notice will be an
estimate of the rough order of magnitude and time impact resulting
from such action, inaction, decision or direction. D/S shall provide
complete and accurate pricing within ten (10) calendar days of said
discovery.
3.1.3 Perform, or obtain the prior written consent of the City to subcontract
all design services for the Project utilizing qualified, licensed and
sufficiently experienced architects, engineers and other
professionals (herein jointly "Design Consultants") as identified in
Exhibit 4. D/S shall not be permitted to substitute any Design
Consultant unless authorized by City. The factthatthe City approves
the subcontracting of any such services will in no way relieve the D/S
of any of its obligations or responsibilities under this Agreement;
4
J:IBPCIBPC AdministrationlDesign Buiid Agreements\#4 Design Build Agmt 10·11-02.doc
3.1.4 Perform all construction on the Project utilizing Subcontractors
appropriately licensed by the California Contractors State License
Soard or other required agency;
3.1.5 Perform all services as expeditiously as is consistent with
reasonable skill and care and shall complete the se.rvices within
each and all of the time periods set forth in this Agreement;
3.1.6 Comply with the California Fair Employment and Housing Act and all
other State, Federal and local laws including, but not limited to, those
prohibiting discrimination, on account of race, color, national origin,
religion, age, sex or handicap;
3.1.7 Study all applicable laws, codes, ordinances, rules, orders,
regulations, and statutes affecting the Project, including but not
limited to, zoning, environmental, building, fire and safety codes and
coverage, density and density ratios and lien laws, and comply with
them in performance of its services. D/S shall ensure that within the
established GMP that the Project conforms to all applicable federal,
state and local laws, statutes, ordinances, rules, regulations, orders
or other legal requirements, (collectively "Governmental
Requirements") existing as ofthe date ofthis Agreement. However,
the City recognizes that Governmental Requirements and their
interpretations by governmental officials ("Code Authority") are often
subject to change at any time, even after issuance of a building
permit If, after the date of this Agreement, modifications to the
Project are required because of a change in Governmental
Requirements or their interpretation by a Code Authority which had
not previously been given, or which if given, was different than a
prior interpretation of a Code Authority, D/S shall make the required
modifications to comply with the same. However, in the event of
such an occurrence, the GMP and Contract Time may be subject to
an adjustment in accordance with Section 12. Nothing contained in
this paragraph shall relieve DIB of its obligations to modify the
Project at its own expense where DIB has failed to construct the
Project in compliance with Governmental Requirements applicable
as of the date of this Agreement.
3.1.8 Control dust and noise in accordance with the provisions in Section
7-8.1 of the 2000 Edition of the Standard Specifications for Public
Works Construction, City Ordinances and this Agreement;
3.1.9 Use reasonable care to avoid damaging existing buildings, equipment
and vegetation adjacent to the Project Site. If DIB causes damage to
5
J:\BPCIBPC AdministrationlDesign Build flgreementsl#4 Design Build Agmt 10·11-02.doc
any of this property, D/S shall replace or repair said property at no
expense to City and !>hall not be a basis for seeking an adjustment to
the GMP or Contract Time. D/S agrees to indemnify City for any and
all fines, penalties, liabilities, cost imposed upon City, its officers,
employees and agents as a result of this Project.
3.1.10 To obtain all permits necessary to complete the Project. City shall
pay cost of permits. DIB shall be responsible for obtaining and
paying for all permits normally obtained by the trades or
subcontractors.
3.1.11 Conform its design to the requirements of the Americans With
Disabilities Act Accessibility Guidelines ("ADAAG") and the
Americans With Disabilities Act ("ADA").
3.1.12 Seek and obtain written approval from the City of the drawings for
each of the following phases: (1) design development (2) 50%
construction drawings and (3) 90% construction drawings. Said
approval shall be evidenced by written notice to proceed with the
subsequent phase.
3.1.13 Provide cost estimating and value engineering services, which take
into consideration long-range maintenance costs, energy efficiency,
and impact operation of the Project. Provide cost estimate to the
City with 90% Construction Documents.
3.1.14 Review soils and geotechnical reports relating to the Project Site;
é nd determine and advise City if any further subsurface
investigations are warranted. If such further investigations are
authorized by City, D/S shall perform said investigations. The costs
of said investigations are Reimbursable Costs to be paid by the City
without markup, pursuant to Section 11.2.
3.2 DIB agrees to fully assume all risks, and costs associated with such risks, in
performing the services and meeting the obligations under this Agreement.
3.2.1 Unanticipated subsurface site conditions
3.2.1.1 City assumes risks for unanticipated subsurface site
conditions provided DIB notifies City in writing within five (5)
calendar days of discovery if D/B believes it has uncovered
or revealed a condition which:
6
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3.2.1.1.1 differs materially from that indicated in the soils
and geotechnical reports furnished by City, or
3.2.1.1.2 is of an unusual nature and differs materially
from conditions ordinarily encountered and
generally recognized as inherent in the work
required by Agreement.
3.2.1.2 Upon receipt of written notice, City shall promptly
investigate and if it determines the conditions do materially
differ, requiring a change in the Work, City shall commence
the processing of a change order pursuant to Section 12. If
City determines there is no bona fide Work scope change
or is a minor change, which does not impact GMP or
Contract Time, City shall notify DIB within ten (10) calendar
days.
3.2.1.3 D/B shall not be entitled to an adjustment in the GMP or
Contract Time if D/B knew or should have known of the
existence of such conditions at the time DIB submitted and
agreed to GMP or Contract Time; or the existence of such
condition could reasonably have been discovered as a
result of D/B's obligations pursuant to Section 3.1.17.
3.3 D/B shall perform in a manner consistent with that level of care and skill
ordinarily exercised by members of the profession currently practicing under
similar conditions and in similar locations. Compliance with this section by
D/B shall not in any way excuse or limit D/B's obligations to fully comply with
all other terms in this Agreement.
3.3.1 D/B warrants that at least one member of the D/B team shall be
licensed by the California Contractor's State License Board as a
General Building Contractor. D/B is to provide a list of the responsible
people within their organizations performing services, which shall
include their qualifications and their function, for approval by the City
prior to start of construction. City and D/B shall establish "key
personnel" who shall remain on the Project until Final Completion. If
any such "key personnel" leave the employment of DIB, City shall
have the right to approve the replacement personnel. DIB shall
comply with all licensing requirements of the State of California,
County of San Diego, and City of Chula Vista.
3.3.2 Project Manager and Project Architect throughout all phases of the
Project hereunder, the individual project manager and project architect
7
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for the Project shall be Nathan Complin and Judy Shade. So long as
the Individual Project Manager and Project Architect remain in the
employ of the General Contractor and Architect, such persons shall
not be changed or substituted from the Project, or cease to be fully
committed to the Project as deemed necessary by the City in its
reasonable discretion, without the prior written consent or instruction
of the City. Any violation of the terms and provisions of this Section
shall constitute a material Default.
3.3.3 City Right to Remove Project Manager and Project Architect.
Notwithstanding the foregoing provisions of Section 3.3, if the
Individual Project Manager or Project Architect, for good cause,
proves not to be satisfactory to the City, upon written notice from the
City to the General Contractor, such person or person shall be
promptly replaced by a person who is acceptable to the City in
accordance with the procedures set forth below.
3.3.4 Replacement Selection of Project Manager andlor Project Architect.
Within five (5) working days after receipt of a notice from the City
requesting the replacement of any Individual Project Manager or
Project Architect, or promptly following the discovery by the Design
Build Team that any Individual Project Manager or Project Architect is
leaving the employ of the General Contractor or Architect, as the case
may be, the replacement/substitution (together with such person's
resume and other information regarding such person's experience and
qualifications) for approval by City. The replacement/substitution shall
commence work on the Project no later than five (5) calendar days
following the City's approval of such replacement, which approval
shall not be unreasonably withheld. In the event that the City and
Design Build Team cannot agree as to the substitution of replacement
of the Individual, the City shall be entitled to terminate this Agreement
for cause.
3.4 DIB shall cooperate with City in obtaining Environmental approvals andlor
permits.
3.5 DIB agrees and acknowledges that the City Representative is the only
person with authority to approve additions or modifications to Project. Any
costs or delays resulting from or associated with additions or modifications
implemented without the written authorization of City Representative shall be
borne exclusively by D/B and not be grounds for an increase in GMP or
Contract Time unless necessary to protect public health, safety or property.
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Section 4: Desian Phase Services - Phase I
4.1.1 DIB shall develop and Implement Project Management Plan and
Procedures including:
4.1.1.1 Project status reports
4.1.1.2 Coordinationlinterface with the City and its other
consultantslcontractors '
4.1.1.2.1 Initial Design .kickoff meeting to be held no later
than five (5) working days from the Date of
Agreement.
4.1.1.3 Biweekly Progress meetings
4.1.1.4 Interface and communications with other agencies
4.1.1.5 Vendors and subcontractors management
4.1.1.6 Document control
4.1.1.7 Schedule and budget control
4.1.1.8 Quality assurance and quality control
4.1.1.9 Throughout the design phase, the Consultant will be
required to provide scheduling and cost control reports
monthly.
4.1.2 Utilizing the 2000 Edition of the Standard Specifications for Public
Works Construction, 2002 Edition of the Chula Vista Standard Special
Provisions, 2002 Edition of the Regional Standards, 2002 Edition of the
Chula Vista Construction Standard, the City's facility program, performance
and design criteria, concept drawings, and reports attached to the RFP and
incorporated herein by reference, DB shall:
4.1.2.1 Prepare construction drawings and specifications suitable
for obtaining City-approved permits and to allow
construction. Packaging of the Project into several
construction contracts, may be appropriate. Preparation of
technical materials and equipment specifications for pre-
purchase will be the responsibility of the DB.
4.1.2.2 Complete the design for all elements of the Project,
including, but not limited to: civil, structural, architectural,
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mechanical, electrical, landscape, and specialty consulting
areas.
4.1.2.3 Evaluate alternative structural and construction approaches
to ensure economical designs, which optimize
constructability yet meet all codes, architectural concepts,
schematic designs, and standard specifications of the
Project. Design and construction shall also meet all ADA
requ irements.
4.1.2.4 Provide additional site surveys and geotechnical
investigations to the extent the DB determines they are
necessary for final design. The survey information provided
by the City is preliminary in nature and may not have
sufficient accuracy or scope to support final design.
4.1.2.6 Furnish support to a City constructability review team at the
50 percent design completion stage. Incorporate the
results of this review into the design.
4.1.2.7 Provide updated construction cost estimates at durations
specified in the RFP to support Value Engineering (VE) and
constructability reviews.
Section 5: Construction Phase Services - Phase II:
The DB shall construct the facility in accordance with City-approved plans
and specifications prepared by the DB to meet or exceed all requirements of
the City provided program, schematic design and the performance criteria.
The DB shall:
5.1.1 Conduct contractor meetings, as necessary, to provide technical
input.
5.1.2 Provide interpretation of technical specifications and drawings.
5.1.3 When appropriate; witness testing and review materials and
equipment testing results and provide comments regarding
conformance with specification requirements.
5.1.4 Provide list of required shop drawing submittals. Review shop-
drawing submittals for technical compliance and forward copy ta City
for review.
5.1.5' Assist during final acceptance process by furnishing final walk-
through(s) and comments.
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5.1.6 The DB shall be responsible for complete management, supervision,
and reporting of all aspects of the construction of this Project.
5.1.7 The DB shall provide resident management and contract
administration, including specialists necessary for the functional,
safe, on-budget and on-schedule completion ofthe Project, starting
with the issuance of a Notice to Proceed, upon final construction
documents, from the City and extending through issuance of Notice
of Completion and Acceptance. City staff will perform inspections to
verify compliance with the plans, specifications and contract
documents.
The DB resident staff shall ensure construction compliance with
applicable local, state, and federal codes,' building and
environmental permit requirements, construction mitigation
documents and enforcement of the Contract Documents.
5.1.8 The DB is responsible for the design, construction and all contract
administration services during the construction of the Project in
accordance with all applicable laws, regulations, and codes,
including, but not limited to, the 1990 Americans with Disabilities Act
[ADA] and Title 24 California Code of Regulations [Building Code] as
defined in Section 18910 of California Health and Safety Code [Title
24]. The DB is responsible as a designer, employer, and City
representative to comply with all portions of Title 24 and the ADA.
5.1.9 The DB shall provide surveying, and other contracted services as
required to complete project construction inspection and testing.
tasks. The City will provide special inspection services and periodic
building inspections. DB is responsible for scheduling and
coordinating all inspections and paying for all re-inspections.
5.1.10 The DB shall be responsible for preparing the Critical Path Method
. (CPM) schedule utilized during the project construction and startup
activities. Use Microsoft Project scheduling software consistent with
the City rèporting system.
5.1.11 The DB shall develop a project-specific Plan for defining, tracking
and reporting cash flow activity requirements and submit such plan
to the City for review and approval prior to implementation.
5.1.12 The DB shall implement and maintain an internal records
management and document control system as required to support
project operations. The DB shall provide records management and
document control information in a manner consistent with the City's
reporting system.
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5.1.13 The DB shall administer and coordinate the project contract closeout'
process and shall resolve any warranty provision issues. The DB
shall report progress of project contract closeout to the City in a
manner consistent with the City's reporting system.
5.1.14 The DB shall administer and enforce the Environmental Mitigation
Monitoring and Reporting Plan for the Project, if any. The DB shall
report a record of environmental issues to the City in a manner
consistent with the City's reporting system.
5.1.15 Prepare Operations Manual.
Section 6: . OperationlStartup Phase Services- Phase 111
6.1.1 The DB shall prepare, submit for City review and written approval, .
and implement a Project Startup and Testing Plan for the Project.
6.1.2 The DB shall conduct Operator Training Sessions for facilities.
6.1.3 The DB shaH supervise, manage, and coordinate all project startup
and testing activities for life support safety and other mechanical
systems within the provisions of the project Contract Documents.
6.1.4 The DB shall report progress of project startup and testing to the
City in a manner consistent with the City's reporting system.
6.1.5 The DB shall report to the City all guaranteelwarranty disputes. The
DB shall proceed to resolve such disputes after having submitted to
the City for review and approval the DB's approach for obtaining
resolution for the dispute.
6.2 Unless the DIB receives the City's prior approval to substitute equal or better
quality materials, the DIB warrants to City that material and equipment incorporated in the
Project will be new, unless otherwise specified, and that the Project will be of good quality,
free from faults and defects, and in strict conformance with the Construction Documents
and in accordance with Section 20.
Section 7:
Additional Services
7.1 City will have the right to direct D/B to perform Additional Services beyond
those specified in this Agreement. D/B may provide Additional Services only if authorized
in.writing, in advance, by City and after complying with Section 7.3. The City may propose
changes to the Work of a subcontractor after the bid has been awarded. In the event of a
change of this nature, DIB will estimate the cost of the Change Order, assist City in
developing drawings and specifications as necessary, solicit a revised bid, negotiate with
the subcontractor, present a recommendation for a Change Order to City, and implement
construction as approved by City.
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7.2 For Additional Services which increase the Hard Construction Costs,
design costs, or other reasonably necessary costs of the Project, D/B shall be paid a fee
pursuant to the sliding scale as detailed on Exhibit 2. Said fee shall cover all home office
overhead and profit to be earned on the additional services.
For additional services, which result in an extension of the Substantial Completion date,
DIB shall be paid a fee equal to the number of working days the Substantial Completion
date is extended multiplied by the daily proration of the general conditions fee included
within the GMP.
7.3 If at any time D/B contends that it is being asked to perform Additional
Services, it shall give City written notice 5 days prior to performing said services indicating
that DIB intends to seek additional compensation beyond the D/B Fixed Fee. Furnishing
advance written notice shall be a condition precedent to. being able to seek additional
compensation from City.
Section 8:
Bonds
8.1 DIB shall furnish performance and payment bonds with the names of the
obligees designated as the City in the amount set forth bèlow, as security for the faithful
performance and payment of all D/B's obligations under the Agreement. These bonds shall
remain in effect at least until thirty (30) days after the filing date of Notice of Completion,
except as otherwise provided by law or regulation or by this Agreement. D/B shall also
furnish such other bonds as are required by this Agreement.
8.1.1 The performance bond shall be in the amount of 100% of the GMP.
8.1.2 The payment bond shall be in the an amount of 100% of the Hard
Construction Costs.
8.2 All bonds shall be in the form prescribed by City and by such sureties which
are admitted insurers in the State of California and are subject to regulation by the
Department of Insurance, and which also satisfy the requirements stated in
Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or
regulations. All bonds signed by an agent must be accompanied by a certified copy of such
agent's authority to act. Surety companies must be duly licensed or authorized in the
jurisdiction in which the Project is located to issue bonds for the limits so required.
8.3 If the surety on any bond furnished by D/B is declared bankrupt or becomes
insolvent or its right to do business is terminated in any state where any part of the Project
is located, DIB shall within seven (7) days thereafter substitute another bond and surety,
which must be acceptable to City.
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Section 9:
Insurance
9.1 The insurance provIsions herein shall not be construed to limit DIB's
indemnity obligations contained in this Agreement.
9.2 DIB shall procure and maintain for the duration of the contract, insurance
against claims for injuries to persons or damages to property, which may arise from or in
connection with the performance of the work hereunder by the DIB, his agents,
representatives, employees or subconsultants. All subconsultants shall be required to
comply with the applicable insurance provisions. The maintenance of proper coverage is a
material element ofthe contract and that failure to maintain or renew coverage orto provide
evidence of renewal may be treated by the City as a material breach of contract.
9.3 Minimum Scope of Insurance
9.3.1 Coverage shall be at least as broad as:
9.3.1.1 Insurance Services Office Commercial General Liability
coverage (occurrence Form CG 0001).
9.3.1.2 Insurance Services Office Form (G0009 11 88 Owners
and Contractors Protective Liability Coverage Form-
Coverage for Operations of Designated Contractor).
9.3.1.3 Insurance Services Officer Form Number CA 0001
covering Automobile Liability, Code 1 (any auto).
9.3.1.4 Workers' Compensation insurance as required by the
State of California and Employer's Liability Insurance.
9.3.1.5 Errors and Omissions.
9.4. Minimum Limits of Insurance
9.4.1 Contractor or appropriate subconsultant shall maintain limits no less
than: .
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9.4.1.1 General $1,000,000 per occurrence for bodily
Liability: injury, personal injury and
property damage. If
(Including Commercial General
operations, Liability Insurance or other
products and
completed form with a general
operations.) aggregate limit is used,
either the general
aggregate limit shall apply
separately to this
project/location or the
general aggregate limit
shall be twice the required
occurrence limit.
9.4.1.2 Automobile $1,000,000 per accident for bodily injury
Liability: and property damage.
9.4.1.3 Employer's $1,000,000 per accident for bodily injury
Liability: or disease.
9.4.1.4 Errors and
Omissions:
$1,000,000 per occurrence
9.5 Deductibles and Self-Insured Retentions
9.5.1 Any deductible or self-insured retentions must be declared to and
approved by the City. At the option of the City, either: the insurer
shall reduce or eliminate such deductibles or self-insured retentions
as respects the City, its officers, officials, employees and volunteers;
or the D/S shall provide a financial guarantee satisfactory to the City
guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
9.6 Other Insurance Provisions
9.6.1 The general liability policy shall contain, or be endorsed to contain,
the following provisions:
9.6.1.1 The City, its officers, officials, employees, and volunteers·
are to be covered as insureds with respect to liability
arising out of automobiles owned, leased, hired or
borrowed by or on behalf of the contractor; and with
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respect to liability arising out of work or operations
performed by or on behalf of the DIB including materials,
parts or equipment furnished in connection with such
work or operations. General liability coverage can be
provided in the form of an endorsement to the D/B's
insurance, or as a separate owner's policy.
9.6.1.2 For any claims related to this project the DIB's insurance
coverage shall be the primary insurance as respects the
City, its officers, officials, employees, and volunteers. Any
insurance or self-insurance maintained by the City, its
officers, officials, employees, or volunteers shall be
excess of the D/B's insurance and shall not contribute
with it.
9.6.1.3 Coverage shall not extend .to any indemnity coverage for
the active negligence of the additional insured in any case
where an agreement to indemnify the additional insured
would be invalid under Subdivision (b) of Sections 2782 of
the Civil Code.
9.7 Verification of Coverage
9.7.1 Contractor shall furnish the City with original certificates and
amendatory endorsements effecting coverage required by this
clause. The endorsements should be on forms provided by the City
or on other than the City's forms, provided those endorsements or
policies conform to the requirements. All certificates and
endorsements are to be received and approved by the City before
work commences. The City reserves the right to require complete,
certified copies of all required insurance policies, including
endorsements affecting the coverage required· by t~ese
specifications at any time.
9.8 Subcontractors
9.8.1 All coverages for subcontractors or subconsultants shall be subject
to all of the requirements stated herein except that subcontractors or
sub-consultants not providing design services for the project shall
not be required to provide Errors and Omissions insurance pursuant
to paragraph 9.3.1.5 and 9.4.1.4. Subcontractors and
Subconsultants shall be protected against risk of loss by maintaining
insurance in the categories and at the limits required herein.
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Subcontractors and Subconsultants shall name City and D/B as
insured's under its policies.
9.9 Cooperation. The D/B and its Contractors shall cooperate fully with and
provide any information or records requested by the City or regarding all aspects of the
insurance and project, including but not limited to claims, audit, payroll, insurance records
and safety. Delays in reporting information to the City may result in delays in progress
payments to the D/B.
9.10 Prior to beginning Work under the Agreement, each and every Contractor of
any tier shall furnish Certificates of Insurance satisfactory to the City. All such Certificates
will contain at least the following provisions:
9.10.1 Thirty (30) days written notice to the City prior to any cancellation,
non-renewal or material reduction in coverage.
9.10.2 The words "will endeavor" and "but failure to mail such notice shall
impose no such obligation or liability of any kind upon the company,
its agents or representatives" will be deleted from the Certificates.
9.10.3 Throughout the life of the Agreement, each and every Contractor of
any tier shall pay for and maintain in full force and effect, with a
carrier or carriers authorized by the California Insurance
Commissioner to do business in the State of California, any policies
required by this Agreement.
9.10.4 Any insurance provided for this project shall be written through an
insurer with an A.M. Best Rating of not less than A:V. Any
exceptions are at the sole discretion of the City and subject to
written approval of the City. .
9.11 Questions concerning the insurance requirements ofthis Agreement shall be
directed to the City Representative.
Section 10: Inspection
10.1 City shall be responsible for City inspection and material testing and
inspections, with reimbursement to be required by DIB for any reinspections. The City shall
either perform said inspection services with its own forces or contract with third parties. It
shall be the responsibility of D/B, however, to call for, coordinate and schedule all
inspections.
10.2 City, its consultants, subcontractors, independent testing laboratories as well
as other governmental agencies with jurisdictional interests will have access at reasonable
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times for this observation, inspecting and testing. D/B shall provide them proper and safe
conditions for such access and advise them of DIB's safety procedures and programs so
that they may comply.
10.3 City will make, or have made, such inspections and tests, as the City deems
necessary to see that the Work is being accomplished in accordance with the requirements
of the Construction Documents. Unless otherwise specified, the cost of such inspection
and testing will be borne by the City. In the event such inspections or tests reveal non-
compliance with the requirements of the Construction Documents, D/B shall bear the cost
of corrective measures deemed necessary by City, as well as the cost of subsequent re-
inspection and re-testing. Neither observations by the City nor inspections, tests, or
approvals by others shall relieve D/B from D/B's obligations to perform the Work in
accordance with the Construction Documents. DIB shall give City timely notice of
readiness of the Work for all required on and off-site inspections, tests, or approvals and
shall cooperate with inspection and testing personnel to facilitate required inspections or
tests. D/B shall give at least 24 hours notice for on-site inspection and five (5) days notice
for off-site inspection.
1004 City has the right to stop or suspend Work activities which will conceal or
cover up D/B Work product which is to be inspected or tested, or which will interfere with
the inspection or testing activities, for a reasonable time and D/B will have no right to
additional cost or time it may incur as a result of the Work stoppage.
Section 11: DIB GMP for Services and Reimbursements
11.1 D/B shall submit to City 90% Construction Documents ("CD's") for approval.
Upon the approval of the 90% CD's, D/B shall, within ten (10) working days, submit a GMP
for approval by City. Said GMP shall be based upon the schedule set forth in Exhibit 2 and
Exhibit 5. The GMP shall include all Hard Construction Costs, DIB Contingency Fund,
Reimburseable Costs, and DIB Fixed Fee for the complete design and construction of the
entire Project as specified in the 90% CD's; provided that: .
11.1.1 The GMP shall not exceed $771,976
11.1.2 Said GMP shall be supported by a detailed itemized breakdown that
shows: the D/B Fixed Fees and the expected Hard Construction
Costs for each.of the major trades 0 the Project which will include
labor, material expenses, equipment costs, and a reasonable D/B
Contingency Fund. Said D/B contingency fund shall not exceed 5%
of the Hard Construction Costs.
11.1.3 All Hard Construction Costs included in the GMP are for direct
. Construction costs incurred in performing the work, including taxes,
delivery and installation. City shall reimburse D/B for the exact
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amount of the direct self performed work, subcontract or invoice
amount. No markup, handling fees, overhead, or other charges are
to be added or paid. Upon Final Completion of the Project, any
amount of Hard Construction Costs or DIB Contingency Fund
monies not utilized shall result in a deductive Change Order.
11.1.4 The GMP shall include a D/B Contingency Fund which can be used
by the DIB with City approval. If the Parties mutually agree that
there is a sufficient surplus, the D/B Contingency Fund will be
available to provide additional funds for Change Orders as provided
for in Section 7 of this Agreement. This Contingency Fund will not
be available for: (1) Work required due to DIB's andlor .contractors'
failure to perform according to the terms of this Agreement andlor in
compliance with the Construction Documents, or (2) uninsured
losses resulting from the negligence of DIB or its Contractors. All
change orders, including zero dollar change orders, which require
the use of the D/B Contingency Fund, shall require City approval.
The City reserves the right to seek reimbursements for any funds
used due to ¡mors or omissions of the Design Consultants.
11.1.5 Prepare, with the cooperation of the City, alternate bid items to assist
in meeting the GMP;
11.2 Except as otherwise expressly provided in this Agreement, as full and
complete compensation for performance of all services and obligations under this
Agreement, DIB shall be compensated ("D/B GMP") by a sum to be determined at 90%
construction documents, pursuant to Section 11.1. GMP shall not be exceeded unless
additional services are requested pursuant to § 7 above or a change order issued pursuant
to § 12. Unless otherwise expressly provided in this Agreement, D/B GMP shall include full
compensation for all costs of any type incurred by DIB in performing all services and
obligations under this Agreement, including but not limited to the following:
11.2.1 All Design Consultants, including but not limited to architectural,
structural, civil, mechanical, electrical, communications, graphics and
art consultants, landscape architects, and acoustical, audio visual,
lighting, and security consultants.
11.2.2 Estimating, value engineering and construction management;
11.2.3 Constructio'n supervision and project management personnel,
including but not limited to superintendents, Project managers,
Project secretaries, Project engineers, Project accountants, and all
other D/B personnel wherever located;
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11.2.4 All on-site and off-site equipment, supplies and facilities, including
but not limited to, computers, estimating, dictating, communication
and accounting equipment, office space, trailers, field equipment and
storage facilities;
11.2.4.1
In no case shall the cumulative monthly rental charges
to tbe Project for equipment and Small Tools used by
the .D/B exceed 90% of the fair market value of anyone
piece of equipment or Small Tools. At City's option, the
full price for equipment or Small Tools may be paid, and
City may take possession upon completion of the Work.
11.2.5 All home-office and field overhead costs of any type including
document control and retention;
11.2.6 All business license costs;
11.2.7 All profit DIB intends to earn under this Agreement.
11.2.8 All direct an¡j incidental costs incurred by DIB, except for thosè
specifically identified in Section 11.2.
11.3 DIB shall be reimbursed, without markup and only as specified in this
Agreement for the following "Reimbursable Costs."
11.3.1 Any other reimbursable cost expressly provided for elsewhere in this
Agreement.
11.4 Bond Premium to be paid by City at a base rate of $6,000 plus $8.00 per
$1,000 of Hard Construction Costs over $500,000.
11.5 D/B agrees and acknowledges the City retains its full and complete discretion
for all legislative actions, including any future appropriations necessary to complete this
Project or fund this Agreement. As more fully provided in Section 24, the City may
terminate this Agreement for any reason, including but not limited to, if City Council fails to
appropriate sufficient funds.or is unsuccessful at obtaining long term financing.
Section 12: Chanae in GMP and Contract Time
12.1 The GMP and Contract Time may only be changed by written Change Order.
Change Orders shall be issued only under the following circumstances:
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12.1.1 The City directs D/B to perform Additional Services or City Changes
as provided in Section 7.
12.1.2 For reasons expressly provided elsewhere in this Agreement.
12.2 The following procedure shall be followed for the issuance of Change Orders:
12.2.1 Upon the occurrence of any event that gives rise to a Change Order,
D/B shall give the City notice of the same with 5 days. D/B shall not
proceed with any such services or work until such notice has been
given to the City except if such services or work are necessary to
protect public health, safety or property.
12.2.2 Unless otherwise directed by the City Representative in writing,
before proceeding with any Change Order work D/B shall promptly
provide the City with a detailed and complete estimate of cost
impact associated with the Change Order, including all appropriate
direct and indirect costs and credits. All such costs and credits
shall be accurately categorized into DIB Fixed Fee, Reimbursable
Costs or Hard Construction Costs. DIB shall also provide City with a
realistic estimate of the impact, if any, the Change" Order will have
on the Contract Time.
12.2.3 Upon submission of the detailed estimates by the DIB, the Parties
will attempt to negotiate an appropriate adjustment in GMP and
Contract Time. If an agreement is reached, a Change Order
reflecting the agreement will be executed by the Parties'. If an
agreement is not reached, the City shall have the option to directthe
D/B to proceed with the subject services andlor work, during which
time the D/B shall contemporaneously maintain accurate and
complete records of all labor, material and equipment utilized in
performing the subject services and/orwork. These records shall be
submitted to the City and shall become the basis for continued
negotiations between the Parties for an equitable adjustment to the
GMP andlor Contract Time.
12.2.4 In the event there is any disagreement or dispute between the
Parties as to whether the DIB is entitled to a Change Order or the
amount of the Change Order, the matter shall be resolved in
accordance with Section 31. DIB shall not have the right to stop or
delay in the prosecution of any services or work, including services
or work that is the subject of the Change Order, pending this
resolution process. Instead, D/B shall continue diligently
prosecuting all such services and work.
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12.2.5 City may, in its sole discretion, adjust the GMP or Contract Time for
any undisputed amount or time associated with the Change Order or
Additional Services.
Section 13: Pavment Terms
13.1 D/B shall submit certificate and application for payment to the City for Phase I
services as follows:
13.1.1 $46,340 upon completion of one-half of the Phase I Services as
determined by the City.
13.1.2 $46,340 upon completion of all Phase I Services as determined by
the City. Retention for Phase I to be released 60 days after receipt
of Building Permit.
13.1.3 $10,000 for Phase II Services for contract administration. Costto be
paid on a per month schedule by dividing cost by construction
duration.
13.1.4 In the event City solicits andlor approves Design Documents that
materially differ from the Designs called for in the RFP,
compensation shall be set pursuant to provision for additional
services set forth in Sections 7 and 12.
13.2 D/B shall provide all Phase II and III services for the D/B GMP less any
payments made pursuant to § 13.1. D/B shall submit certificate and application for
payment to City on or before the 5th day of each calendar month for Phase II and III
services. The monthly payment application shall be based upon the percentage of
completion of the Schedule of Values plus any Reimbursable Costs, less any payments
previously made by the City and subject to the receipt of unconditional lien releases for all
prior payments and if the invoiced amount is not disputed by City, it shall pay D/B ninety
percent (90%) of payment application based upon the percentage complete of the
Schedule of Values and 100% of the reimbursable costs within thirty (30) days after receipt
of the fully documented invoice. City will withhold the· remaining 10% as security for D/B's
full performance.
13.3 DIB shall develop and maintain an accurate system for tracking all
Reimbursable Costs. Utilizing this system, DIB shall include with each month payment
application an itemization of all such Reimbursable Costs actually incurred by D/B, during
the previous month. If requested by the City, DIB shall provide all backup documentation
supporting such Reimbursable Costs.
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13.4 D/B shall develop and maintain an accurate system for tracking all Hard
Construction Costs it incurs on the Project. Utilizing this system, DIB shall include with
each monthly application for payment an itemization of all Hard Construction Costs actually
incurred by DIB during the previous month.
13.5 DIB shall separately submit to City certificate and application for payment on
a monthly basis for any authorized Additional Services performed by D/B. Subject to the
receipt of unconditional lien releases for all prior payments and if Additional Services are
not disputed by City, City shall pay ninety percent (90%) ofthe invoiced amount within thirty
(30) days of receipt of fully complete invoice. City will withhold the remaining 10% as
security for DIB's full performance.
1.3.6 Subject to Sections 13.8, City shall pay D/B the ten percent (10%) retention
being withheld pursuant to Sections 13.2, and 13.5 as part of the "Final Payment" to D/B.
Final Payment will be made thirty-five (35) days after Final Completion.
13.7 The City Manager will consider the release of the entire retention for
subcontractors upon completion of the subcontractors' work and execution of a disclaimer
and unconditional final lien release by the subcontractor.
13.8 In lieu of withholding retention under this Agreement, at the election of DIB,
City will deposit retention amounts into escrow andlor the substitution of securities for
money as provided in California Public Contract Code Section 22300.
Section 14: Proiect Completion
14.1 Substantial Completion shall be that stage in the progress ofthe construction
when all Work on the Project is sufficiently complete in accordance with the Construction
DocUments so that City can fully utilize entire Project; Substantial Completion shall further
mean that all goods, services and systems to be provided under the terms and conditions
of the Construction Documents are in place and haile been initially tested, and are
operationally functional, subject only to final testing, balancing and adjustments and normal
Final Completion punchlist Work.
14.2 Final Completion shall be deemed to occur on the last of the following events:
(1) recordation of a Notice of Completion for the Project; (2)àcceptance of the Project by
the City; (3) issuance of a final Certificate of Occupancy for the Project; (4) submission of
all documents required to be supplied by DIB to City under this Agreement, including but
not limited to As-Built Drawings, warranties, and operating manuals; (5) and delivery to City
of a Certificate of Completion duly verified by D/B.
14.3 DIB shall provide City with a Certificate of Completion, certifying to City under
penalty of perjury that the Project has been completed in accordance with the Construction
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Documents, all applicable building codes and regulations, all permits, licenses, and
certificates of inspection, use and occupancy, and ordinances relating to the Project.
14.4 D/B shall provide five sets of City final record drawing documents at the end
of construction and one copy in electronic format ("As-Built Drawings") and one copy of
reproducible drawings. As-Built Drawings are to be accurate and legible records showing
exact location by dimensions, and the exact depth by elevation of underground lines,
valves, plugged tees, wiring and utilities.
14.5 DIB shall provide a copy of, or make available before destruction, all records
(which includes all writings as defined in Evidence Code Section 250) to the City upon
receipt or generation, which shall include a copy of D/B's filing protocol.
Section 15: Contract Time
15.1 The "Contract Time" shall be the number of calendar days stated in Section
1.3.2 for D/B to achieve Substantial Completion.
15.2 "Time is of the essence" with regard to Contract Time and all milestones listed
in the Project Schedule.
15.3 The Contract Time may only be changed by a Change Order as set forth in
Section 12.
Further, an extension in Contract Time will not be granted unless D/B can
demonstrate through an analysis of the Project Schedule that the increases in the time to
perform or complete the Project, or specified part of the Project, beyond the corresponding
Contract Time arise from unforeseeable causes beyond the' control and without the fault or
negligence of D/B, its Design Consultants, and subcontractors or suppliers, and that such
causés in fact lead to performance or completion of the Project, or specified part in
question, beyond the corresponding Contract Time, despite D/B's reasonable and diligent
actions to guard against those effects.
15.4 DIB carries the burden of proving an entitlement to an increase in the
Contract Time. Delays attributable to and within the control of Design Consultants, or
subcontractor or supplier shall be deemed to be delays within the control of D/B. No time
extension will be allowed for such delays. An increase in Contract Time does not
necessarily mean that DIB is due an increase in the GMP.
Section 16: Late Completion
16.1 City and DIB recognize thattime is of the essence in this Agreement and that
City will suffer financial loss if the Project is not completed within the Contract Time, plus
any extensions thereof allowed in accordance with Section 15.3. They also recognize the
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delays, expense, and difficulties involved in proving in a legal proceeding the actual loss
suffered by City if the Project is not completed on time. Accordingly, instead of requiring
any such proof, City and DIB agree that DIB shall pay as liquidated damages (but not as a
penalty) for each calendar day of delay beyond the time specified for Substantial
Completion of the Project, the following amounts which D/B expressly agrees are "not
unreasonable under the circumstances" as defined in California Civil Code §1"671 (b): $100
for each calendar day. Liquidated Damages shall not be assessed after the date on which
Substantial Completion is achieved pursuant to Section 14.
Section 17: RiQht to Modify Work
17.1 . Without invalidating the Agreement and without notice to any surety, City may
at any time or from time to time, order additions, deletions, or revisions in the Project; these
will be authorized by a written Change Order prepared and issued by City. Upon receiþt of
any such document, D/B shall promptly proceed with the Work involved which will be
performed under the applicable conditions of the Construction Documents (except as
otherWise specifically provided).
17.2 When City desires a change in the Project, City may issue a Request for
Proposal to D/B. D/B will be required to respond within the time indicated by City.
Section 18: Intentionally Omitted
Section 19: Work Bv Others
19.1 City may perform other work related to the Project at the Project Site by City's
own forces, or let other direct contracts ("City Contractor"). The City will give DIB
reasonable notice of its intent to do such other work. D/B's work shall take priority over the
City Contractors; but the Parties will use their best efforts to coordinate their work so as to
minimize the disruption to each other's work and to allow City Contractor to proceed
expeditiously.
19.2 If the proper execution or results of any part of D/B's work depends upon the
work by the City or City Contractor, D/B shall promptly inspect and report to City in writing
any apparent delays, defects, or deficiencies in the City's work that render it unavailable or
unsuitable for such proper execution and results. D/B's failure to promptly report such
delays, defects, or deficiencies in writing before commencement of the affected work, will
constitute an acceptance of the City's work as fit and timely for integration with DIB's Work
except for latent defects and deficiencies in the City's work for which D/B will not be
responsible.
19.3 If D/B or any person or entity working for D/B causes damage to the City's or City
Contractor's work, property, or person, or if any claim arising out of D/B's performance of
the Project by any other contractor is made against D/B, by City, any other contractor, or
any other person, D/B shall promptly repair andlor resolve said claim at no cost to City.
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Section 20: Warranties and Guarantees
20.1 DIB warrants and guarantees to City that materials and equipment
incorporated into the Project will be new unless otherwise specified and that all work will be
in strict accordance with the Construction Documents and will not be defective. Prompt
notice of defects known to City shall be given to D/B. All Defective Work, whether or not in
place, may be rejected, corrected, or accepted as reasonably directed by City, provided
D/B shall not be entitled to an extension in Contract Time or increase in GMP because of
any delay or increase in cost attributable to the rejection, correction or acceptance of said
work. Defective work may be rejected even if approved by prior inspection.
20.2 The warranty period shall commence when the Certificate of Final Completion
is issued (irrespective of beneficial use by City prior to Final Completion) and extend one
(1) year after that date or whatever longer period may be prescribed by laws or regulations
or by the terms of any applicable special guarantee or specific provision ofthe Construction
Documents.
20.2.1 DIB is to provide any extra material for maintenance at the
completion of the Project, including items such as carpeting, base,
floor tile, ceiling tile, paint, and filters.
20.2.2 D/B is to provide City one (1) set of operating and maintenance data
manuals, fully bound and indexed, warranties, guarantees, and
bonds.
20.3 Correction of Defective Work - If within the designated warranty period, or
such longer period as maybe required by laws or regulations, the Project or any part of the
Project, is discovered to contain defective work, DIB shall promptly, without any
reimbursement or adjustment in the GMP, and in åccordance with City's written
instructions, either correct that defective work, or if it has been rejected by City remove it
from the Project and replace it with work which is not defective. If circumstances warrant it,
including but not limited to, in an emergency, City or D/B may have the defective work
corrected or the defective work removed and replaced. 'In that event, DIB shall not be
allowed to recover any associated costs, and D/B shall reimburse City for all direct, and
indirect costs of City, and City shall be entitled to an appropriate decrease in the GMP, to
withhold a setoff against amount recommended for payment, or make a claim on D/B's
bond if D/B has been paid in full.
20.4 With respect to all warranties, express or implied, from subcontractors,
manufacturers, or suppliers for Work performed and materials furnished under this
Agreement, the DIB shall:
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20.5.1 Obtain all warranties that would be given in normal commercial
practice and as required by the City;
20.5.2 Require all warranties to be executed, in writing, for the benefit of
City;
20.5.3 Enforce all warranties for the. benefit of City, if directed by City;
20.5.4 In the event D/B's warranty under section 20.2 has expired, City may
bring suit at its expense to enforce a subcontractor's,
manufacturer's, or supplier's warranty;
20.5.5 D/B shall assign all subcontractor, supplier and manufacturer
warranties including maintenance contracts from the installer for
specialized equipment, such as elevators, escalators, movable
partitions, equipment etc., to cover the limited warranty period to City
at the expiration of the one year warranty; and
Section 21: Use and Possession Prior to Completion
21.1 City shall have the right to take possession of or use any completed or
partially completed part of the Work if mutually agreed upon by the parties. Before taking
possession of or using any Work, City shall furnish D/B a list of items of Work remaining to
be performed or corrected on those portions of the Work that City intends to take
possession of or use. However, failure of City to list any item of Work shall not relieve D/B
of responsibility for complying with the terms of this Agreement. City's possession or use
shall not be deemed an acceptance of any Work under this Agreement, nor relieve the DIB
of any of its obligations under this Agreement.
21.2 While City has such possession or use, DIB shall be relieved of the
responsibility for the loss of or damage to the Work resulting from City's possession or use.
If prior possession or use by City delays the progress of the Work or causes additional
expense to D/B, an equitable adjustment shall be made in the GMP or the Contract Time,
and the Agreement shall be modified in writing accordingly.
Section 22: Personal Services and Non-Assianabilitv
22.1 This is a personal services Agreement and, therefore, D/B shall not alter the
key employees or Design Consultants nor assign or transfer, voluntarily or involuntarily, any
of its rights, duties or obligations under this Agreement except upon the prior written
consent of City. Any such change, assignment or transfer without the prior written consent
of the City shall be deemed null and void and constitute a material breach under this
Agreement.
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Section 23: Indemnification
23.1 To the fullest extent permitted by the law, DIB shall indemnify, defend, protect
and hold harmless City, its elected and appointed officers, agents, employees, consultants,
(collectively herein the "Indemnitees"), from and against all claims, demands, causes of
action, damages, injuries, liabilities, losses and expenses (including, without limitation,
reasonable attorneys' and consultants' fees and expenses) of any kind whatsoever, arising
in whole or in part out of or resulting from D/B's performance of this Agreement, D/B's
breach of this Agreement, or the alleged negligent acts or omissions of DIB, its architects,
engineers, other professional¡¡ and consultants, Contractors, suppliers or anyone directly or
indirectly employed by any of them or anyone for whose acts they may be liable. The
obligations of the DIB under this paragraph for errors or omissions, including those of the
design professional subcontractors, which includes the Design Subcontractors, consultants,
agents and employees thereof ("Design Subcontractors"), which arise from (1) the
preparation or approval of maps, drawings, opinions, reports, surveys, designs or
specifications, or (2) the giving of or the failure to give directions or instructions shall not be
limited to the amount of coverage provided for in the professional liability insurance policy.
If City is fully reimbursed by DB's insurance for any loss covered by this paragraph, D/B
shall have no further obligation for such loss.
23.2 D/B's obligation to indemnify under section 23.1 shall not extend to such
claims, demands, causes of action, damages, injuries, liabilities, losses and expenses, to
the extent that such is the result of the actiVe negligence or the willful misconduct of an
Indemnitee. D/B's obligation to defend under section 23.1, if not covered by the insurance
to be provided on the Project, shall not extend to such claims, demands, causes of action,
damages, injuries, liabilities, losses and expenses, or causes of actions, to the extent that
such are caused by the active negligence or the willful misconduct of the Indemnitee, and
from no other cause.
23.3 The D/B agrees, notwithstanding the above to the fullest extent permitted by
law, to indemnify, defend, and hold harmless the City, its elected and appointed officers,
employees, agents and consultants from and against any and all claims, suits, demands, .
liabilities, losses, or costs, including reasonable attorney's fees and defense costs, resulting
or accruing to any and all persons, firms, and any other legal entity, caused by, arising out
of or in any way connected with the detection, presence, handling, removal, abatement,
capping, subsequent migration of, or disposal of any asbestos or hazardous or toxic
substances, products or materials that exist on, about or adjacent tothe jobsite, whether
liability arises under breach of contract or warranty, tort, including negligence, strict liability
or statutory liability or any other cause of action. D/B's obligation regarding asbestos or
hazardous or toxic substances, products or materials shall be limited to the proper removal
within the Project boundaries and the proper disposal of such materials.
Section 24: Riaht to Terminate and Suspend Work
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24.1 Archaeoloaical and Paleontoloaical Discoveries. If a discovery is made of an
archaeological or paleontological interest, DIB shall immediately cease operations in the
area of the discovery and shall not continue until ordered by City. When resumed,
operations within the area of the discovery shall be as directed by City.
24.1.1 Discoveries which may be encountered may include, but are not be
limited to, dwelling sites, stone implements or other artifacts, animal
bones, human bones, fossils or any item with cultural significance.
24.1.2 DIB shall be entitled to an extension of time and compensation in
accordance with the provisions of this Agreement.
24.2 Termination of Aareement bv Citv for Cause. If, through any cause, D/B
shall fail to fulfill in a timely and proper manner D/B's obligations under this Agreement, or
if D/B shall violate any of the covenants, agreements or stipulations ofthis Agreement, City
shall have the right to terminate this Agreement by giving written notice to D/B of such
termination and specifying the effective date thereof at least five (5) days before the
effective date of such termination. All finished or unfinished documents, data, studies,
drawings, maps, plans, specifications, reports and other materials prepared by D/B, or any
of its agents, Design Consultants or Subcontractors, shall, at the option of the City,
become the property of the City, and OIB shall be entitled to receive just and equitable .
compensation for any work satisfactorily completed on such documents and other
materials up to the effective date of Notice of Termination, not to exceed amounts payable
hereunder, and less any damages caused by D/B's breach.
24.2.1 In the event the Agreement is terminated in accordance with this
Section, City may take possession of the Project and may
complete the Project by whatever method or means City may
select.
24.2.2 If the cost to complete the Project exceeds the balance, which
would have been due, DIB shall pay the excess amount to City.
24.2.3 Riahts of Citv Preserved. Where DIB's services have been so
terminated by City, the termination will not affect any rights or
remedies of City against D/B then existing or which may thereafter
accrue. Any retention or payment of moneys due DIB by City will
not release DIB from liability. It is agreed that termination
hereafter will not in any way release, waiver, or abridge any rights
the City has against D/B's performance bond surety.
24.2.4 Any dispute as to the amount due or owed to DIB upon termination
under this section shall be resolved in accordance with Section 33.
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24.3 Termination for Convenience bv City. City may terminate this Agreement at
any time and for any reason, by giving specific written notice to DIB of such termination and
specifying the effective date thereof, at least seven (7) days before the effective date of
such termination. In that event, all finished and unfinished documents and other materials
described hereinabove shall, at the option of the City, become City's sole and exclusive
property. If the Agreement is terminated by City as provided in this paragraph, DIB shall be
entitled to receive just and equitable compensation for any satisfactory Work completed to
the effective date of such termination. DIB hereby expressly waives any and all claims for
damages or compensation arising under this Agreement except as set forth herein.
24.3.1 Records and Documents Relatina to Termination. Unless otherwise
provided in the Agreement or by statute, D/B shall mainfain all
records and documents relating to the terminated portion of this
Agreementforthree (3) years after final settlement. This includes all
books and other evidence bearing on D/B's costs and expenses
under this Agreement. DIB shall make these records and
documents available to City, at D/B's office, at all reasonable times,
without any direct charge. If approved by the City Manager,
photographs, electronic files, microphotographs, or other authentic
reproductions may be maintained instead of original records and
documents.
Section 25: Independent Contractor
25.1 D/B and any Design Consultant, Contractor, Subcontractor, agent or
employee of D/B, shall act as an independent contractor and not as an agent, officer or
employee of City. Except as expressly provided in this Agreement, City assumes no
liability for D/B's actions and performance; in particular, but without limitation, City assumes
no responsibility for paying any taxes, bonds, payments or other commitments, implied or
explicit, by or for D/B. D/B acknowledges that it is aware that because it is an independent
contractor, City is making no deductions from the fees for services being paid to D/B and
that City is not contributing to any fund on the behalf of D/B. DIB disclaims the right to any
type of additional fee or benefits.
Section 26: Independent Judament
26.1 Unless otherwise directed in writing by City, D/B shall, in providing the
professional services required by this Agreement, arrive at conclusions with respect to the
rendition of information, advice and recommendations, independent of the control and
direction of City, other than normal contract monitoring; DIB, however, shall possess no
authority with respect to any City decision beyond rendition of such information, advice and
recommendations. D/B shall not have the authority to act as an agent on behalf of City
unless specifically authorized to do so by City in writing.
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Section 27:
Maintenance of Records and Accountina
27.1 DIB shall maintain, during the Project and for a period ofthree (3) years after
completion of the Project, accurate and organized records of all costs of any type and all
services performed under this Agreement. Citywill have the right at any time, including
during the performance of all Phases of the Project to audit and copy all such records.
Section 28: Ownership of Documents
28.1 All reports, studies, information, data, statistics, forms, designs, plans,
procedures, systems and any other materials or properties produced under this Agreement
shall be the sole and exclusive property of City. No such materials or properties produced'
in whole or in part under this Agreement shall be subject to private use, copyrights or
patent rights by Consultant in the United States or in any other country without the express
written consent of City. City shall have unrestricted authority to publish, disclose (except as
may be limited by the provisions of the Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or
other materials or properties produced under this Agreement.
Section 29: Force Maieure
29.1 Any party to this Agreement may be excused for any delay or failure to
perform its duties and obligations under this Agreement, except for obligations to pay
money, but only to the extent that such failure or delay is caused by an Event of Force
Majeure as set forth in section 29.2. If an Event of Force Majeure set forth in section 29.2
causes a delay or failure in performance of only a portion of the obligations of a Party under
this Agreement, then only that portion of performance which was delayed or prevented by
such cause shall be deemed excused, and the performance of all other obligations of a
Party not so delayed shall not be excused by an Event of Force Majeure. Delay or failure
in performance of all other obligations of a Party not so delayed shall not be excused 'by
such Event of Force Majeure. Delay or failure in performance by a Party which is the r.esult
of an Event of Force Majeure set forth in section 29.2 shall be deemed excused for a period
no longer than the delay or failure in performance caused by such Event.
29.2 An Event of Force Majeure means an occurrence beyond the control and
without the fault or negligence of a Party, including but not limited to unusually severe
weather, flood, earthquake, fire, lightning, and other natural catastrophes, acts of God or
the public enemy, war, terrorist act, riot, insurrection, civil disturbance or disobedience,
strike or labor dispute for which D/B is not responsible, expropriation or confiscation of
facilities, changßs of applicable law, or sabotage of facilities, so long as such Party makes
good faith and reasonable efforts to remedy the delays or failures in performance caused
thereby. However, D/B, in developing the GMP and Project Schedule, has incorporated
three (3) days for anticipated adverse weather days that may disrupt work on the Project;
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DIB shall be entitled to relief under this Section for adverse weather only to the extent
adverse weather days exceed this amount of days.
29.3 A Party shall give written notice to the other Party as soon after becoming
aware of the delay or failure in performance caused by an Event of Force Majeure as is
reasonably possible, but in any event within five (5) working days after Party becomes
aware of such delay or failure.
29.4 No Event of Force Majeure shall be a basis for monetary adjustment to the
GMP. Costs incurred by the DIB as a result of a Force Majeure Event will be reimbursed
according to the terms of this Agreement from the Contingency Fund.
Section 30: Hazardous Materials
30.1 In the event the D/B or any other party encounters asbestos or hazardous or
toxic materials at the Project Site, or should it become known in any way that such
materials may be present at the Project Site òr any adjacent areas that may affect the
performance of the D/B's services, the DIB may, at his or her option and without liability for
consequential or any other damages, suspend performance of services on the Project until
the City retains appropriate specialist consultant(s) or contractor(s) to identify, abate andlor
remove the hazardous or toxic materials, and warrant that the Project Site is in full
compliance with applicable laws and regulations.
Section 31: Disputes
31.1 All claims, counterclaims, disputes, and other matters in question arising
under, or relating to, the Agreement or the breach thereof shall be processed in accordance
with the provisions of this Section, unless specifically addressed by another provision of
this Agreement.
31.2 DIB shall submit its written request for a Change Order to City pursuant to
Section 13. City shall make a determination on D/B's request in writing within 7 days of
receipt of request and all supporting data. Said Change Order shall be made in good faith
and accurately reflect the adjustment in GMP or Contract Time for which DIB believes City
is liable, and covers all costs and delays to which DIB believes it is entitled as a result of
the occurrence of the claimed event. All requests for adjustment in Contract Time shall
include an analysis of the Master Construction Schedule and the impact of the claimed
work on specific activities on the Master Construction Schedule.
31.3 If DIB disagrees with City's determination, D/B shall file a claim in writing in
accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal
Code, as same may from time to time be amended, the provisions of which are
incorporated by this reference as if fully set forth herein, and such policies and procedures
used by the City in the implementation of the same.
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31.4 Pending final resolution of any claim, including litigation, D/B shall proceed
diligently with performance of the Project, and comply with any direction of City.
Section 32: Notices
32.1 All notices, demands or other communications hereunder shall be given or
made in writing and shall be delivered personally or sent by courier or registered or certified
mail, return receipt requested, postage prepaid, addressed to the Party to whom they are
directed at the following addresses, oratsuch other addresses as may be designated by
notice from such Party:
(i) To CITY:
City Attorney
276 Fourth Avenue
Chula Vista, CA 91910
Tel: (619) 691-5037
Fax: (619) 409-5823
Building and Park Construction
1800 Maxwell Road
Chula Vista, CA 91911
Tel: (619) 397-6070
Fax: 619)397-6250
(ii) To D/B:
Er'ickson-Hall Construction Company
500 Corporate Drive
Escondido, CA 92029
Tel: (760) 796-7700
Fax: (760) 796-7750
Any notice, demand or other communication given or made solely by mail in the
manner prescribed hi this Section shall be deemed to have been given and to be effective
three (3) days after the date of such mailing; provided, however, that any notice, demand or
other communication which would otherwise be deemed to have been given on a day
which is not a working day shall be deemed to have been given on the next subsequent
working day.
Section 33: Miscellaneous Terms
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33.1 Representations: Each Party hereto declares and represents that in
entering into this Agreement it has relied and is relying solely upon its own judgment, belief
and knowledge of the nature, extent, effect and consequence relating thereto. Each Party
further declares and represents that this Agreement is being made without reliance upon
any statement or representation of any other Party not contained herein, or any
representative, agent or attorney of any other Party.
33.2 Severabilitv: If any term or condition of this Agreement is held to any extent
to be invalid or unenforceable, allthe remaining terms and conditions shall be enforceable
to the fullest extent permitted by law.
33.3 Entire Aareement: This Agreement contai~s the entire agreement, between
the Parties and supersedes all prior negotiations, discussions, obligations and rights ofthe
Parties in respect of each other regarding the subject matter of this Agreement. There is
no other written or oral understanding between the Parties. No modification, amendment or
alteration of this Agreement shall be valid unless it is in writing and signed by the Parties
hereto.
33.4 Draftina Ambiauities: The Parties agree that they are aware that they have
the right to be advised by counsel with respect to the negotiations, terms and conditions of
this Agreement, and that the decision of whether or not to seek the advice of counsel with
respect to this Agreement is a decision which is the sole responsibility of each of the
Parties hereto. This Agreement shall not be construed in favor of or against either Party by
reason of the extent to which each Party participated in the drafting of the Agreement.
33.5 Applicable Law: The formation, interpretation and performance of this
Agreement shall be governed by the laws of the State of California. Venue for mediation,
arbitration andlor actions arising out of this Agreement shall be in the City of Chula Vista,
California.
33.6 Waiver: Unless otherwise expressly provided herein, no delay or omission
by the Parties hereto in exercising any right or remedy provided for herein shall constitute a
waiver of such right or remedy, nor shall it be construed as a bar to or a waiver of any such
right or remedy on any future occasion.
33.7 Effect of Headinas: Headings appearing in this Agreement are inserted for.
convenience of reference only, and shall in no way be construed to be interpretations of the
provisions hereof.
33.8 Amendments: This Agreement may be modified, amended or supplemented
only by the mutual written agreement of the Parties hereto.
33.9 Authorization and Comcliance: Each Party represents that it is duly
authorized to execute and carry out the provisions of this Agreement.
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33.10 Further Assurances: The Parties agree to do such further acts and things
and execute and deliver such additional agreements and instruments as the other may
reasonably require to consummate, evidence or confirm the agreements contained herein
in the manner contemplated hereby.
33.11 Counterparts: This Agreement may be executed by the Parties in one or
more counterparts, all of which taken together shall constitute one and the same
instrument. The facsimile signatures of the Parties shall be deemed to constitute original
signatures, and facsimile copies hereof shall be deemed to constitute duplicate original
counterparts.
33.12 Exhibits and Glossarv of Terms: All Exhibits and Glossary of Terms are
incorporated herein by reference into this Agreement.
33.13 Third Partv Beneficiarv: Nothing within this Agreement shall create a
contractual relationship between the City and any third party.
[NEXT PAGE IS SIGNATURE PAGE]
35
J:\BPC\BPC Administration\Design Build Agreements\#4 Design Build Agmt 10-11-02.doc
10/31/2002 10:53
7607967750
ERICKSON_HALL CDNST
PAGE 03
SIGNATURE PAGE TO
DESIGN/BUILD AGREEMENT
CITY OF CHULA VISTA
ERICKSON-HALL
By:
Shirley Horton, Mayor
By:
~ J~\~þ
.~~ ':,,'''':I~i!i''''~ª~ '
. .. ,,' ,
M'lChaa! F. Hall
Ch'ef Opørating Of/ICRI'
1E';.r.~!;Q!'\-HaII ConIIb'\ICIiOn eo.
ATTEST:
Susan Bigelow, City Clerk
Approved as to form by
John M. Kaheny, City Attomey
36
G:\Project Mgm1\~roject Flles\2221 Cv Fire Station 4\Contracts\Owner\#4 Design Build Agmt 10-11-Ð2.dcc
EXHIBIT LIST
Exhibit I
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Drawings
GMP Summary
Response to RFP
Fire Station No.7 RFP
General Conditions Breakdown
Glossary of Terms
37
J:\BPC\BPC Administration\Design Build Agreements\#4 Design Build Agmt 10-11.02.doc
COUNCIL AGENDA STATEMENT
Meeting Date: 11/05/02
ITEM TITLE: Resolution accepting the City Manager's certification of the
qualifications of the Design-Build Team, approving a Design Build
agreement with Erickson-Hall Construction Co. for the provision of
services required to design and construct a 4,000 square foot single bay
outfit and storage building at Fire Station No. 2, appropriating from the
General Fund and from the Public Facilities Development Impact Fee
Fund to the newly created Capital Improvements Project for Fire Station
No. 2 and authorizing the Mayor to execute said Agreement.
SUBMITTED BY: Andy Campbell, Director of Building and Park Construction~
REVIEWED BY: City Manager5'~-'~ (4/Sths Vote: Yes X No )
During the Fiscal Year 2002-2003 CIP Budget process, staff informed Council that is was
developing plans for the design and construction of a 4,000 square foot single bay outfit and
storage building at Fire Station No. 2 in the Hilltop area. The project is ready to begin the design
phase. The resolution will award to Erickson-Hall Construction a Design Build Agreement for
this project and appropriate funds to undertake the project.
RECOMMENDATION: That the City Council accept the CM certification of Erickson-Hall,
approve a Design Build Agreement with Erickson-Hall Construction for the provision of services
required to design and construct the 4,000 square foot single bay outfit and storage building at
Fire Station No. 2, appropriate funds therefore and authorize the Mayor to execute said
agreement.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
BACKGROUND:
Design-Build as a project delivery system was approved through Charter Amendment in March
2000. In October 2000, the Council adopted Chapter 2.57, Design-Build Contracts, establishing
the procedure for the selection and award of Design-Build contracts. Municipal Code 2.57.030
sets out the procurement procedure whereby either a project specific Request for Proposal (RFP)
is distributed, a selection is made off the Qualified List of Design-Build Entities, or a Sole-
Source award is made. On July 30, 2002, the Department of Building and Park Construction
issued an RFP for Design Build Services (D/B) to assist staff in the work required to design and
construct Fire Station No. 7 and additional Fire Stations.. On August 20, 2002, the City received
eight proposals in response to the RFP and subsequently reviewed the eight firms, based upon
Page 2, Item: ~
Meeting Date:
11/0'$/02
this review a short list of four firms was established. The four firms were Rudolph & Sletten,
Inc., Douglas E. Bamhart, Inc., Erickson-Hall Construction, and HB&A Architects, Inc. A
selection committee, appointed by the City Manager, reviewed and evaluated the proposals and
conducted interviews with all four firms. The four firms were ranked and the top three firms
were placed on the list of Qualified Design-Build Entities (Fire Stations). The list of Qualified
Design Build Entities (Fire Stations) was certified by Council in a previous action this evening.
Those firms are Rudolph & Sletten, Inc., Douglas E. Barnhart, Inc. and Erickson-Hall
Construction. Erickson-Hall Construction, one of the firms placed on the Qualified list, was
selected as the most qualified firm to handle this type of project. Municipal code 2.57.030 (a)(3)
requires certification by the City Manager that the most qualified firms have been interviewed
and the selected firm is capable of providing the services and it is in the best interest of the City
to proceed in this manner.
It is reconnnended that City Council accept the City Manager's certification and authorize
execution of the agreement. Justification for the use of Qualified list of Design-Build Entities is
based upon the following:
1. Erickson-Hall Construction Co. was the #2 ranked firm aaer the completion of RFP
process to locate firms uniquely qualified to perform Fire Station design and
construction. Erickson-Hall Co. and the Architect, Michael Merino, have been involved
in the design and construction of numerous fire fighting support facilities. Most recently,
Rancho Santa Fe Stations No. 2 and No. 5 and Fire Station Renovations and Additions
for the Cities of Arcadia and Manhattan Beach.
2. Time is of the essence regarding these facilities. This modification is needed to ensure
the outfitting of equipment to be used at Fire Station 7 to serve the Eastern Territories.
3. Best interest of the City to proceed in this mariner to ensure the timely completion of the
facilities necessary to better serve the growing population of the City.
DESIGN/BUILD
Staff is recommending the City enter into an agreement with Erickson-Hall Construction for the
provision of services required to design and construct the 4,000 square foot single bay outfit and
storage building at Fire Station No. 2. This will be the City's third utilization of the design/build
process as a construction management technique. The Police Building was the first Design/Build
project, the Nature Center's Shark and Ray Experience the second. The design/build process
includes functions that are quite different from the design/bid/build process typically used for
City construction projects.
The design/build process employs a single entity, either a general contractor or an architect,
which provides both design and construction services. In the typical scenario, a design/build
oriented general contractor provides the design and construction services. Alternatively, an
architectural firm may provide the design services and hire the general contractor on a consulting
basis for the construction phase. In this later scenario, the architectural firm will be held
responsible for all aspects of the project. In the case of the storage building at Fire Station No. 2,
the design/build process will place sole responsibility for delivery of the project upon Erickson-
Hall Construction, a general contractor. Erickson-Hall Construction will subcontract for the
design and consulting services, and trade contracts during the construction phase. Generally
Page3, Item: ~
Meeting Date:
H/0~/02
utilization of a design/build process will provide savings in cost and time because the entire
project is managed and constructed by a single entity, thereby eliminating the difficulties of
dealing with multiple entities and overhead on one project.
The design/build process provides the City the flexibility to work with the best contractors in the
County as it does not necessarily require award to the lowest responsible bidder.
PROJECT SCOPE AND CONTRACTUAL REQUIREMENTS
As proposed, the Design-Build Agreement with Erickson-Hall Construction will provide the City
with a fully functional storage building at Fire Station No. 2 that provides service to the western
portion of the City. The scope of work includes but is not limited to the following:
Design and construct a completed and fully functional 4,000 square foot single bay outfit
and storage building at Fire Station No. 2 including the facilities and site-work required.
The storage building shall include, but not be limited to all components outlined and
described in the schematic design.
Efickson-Hall Construction shall perform all services, work and obligations as described for the
not to exceed amount of $1,267,952, which shall include Design Services and General
Conditions, Insurance, Bonds and Hard Construction costs necessary to provide a fully
completed and functional Project. At 90% complete documents a Guaranteed Maximum Price
(GMP) will be established as part of the agreement, which will include, but.not be limited to, the
cost for all labor, equipment, and material to design and build a fully functional storage building
at Fire Station No. 2 in accordance with all applicable building codes. The project will be
funded by the General Fund and by the Public Facilities Development Impact Fee Fund.
CHANGE ORDERS
Under the design/build process, change orders are handled differently than under the
design/bidPouild process. Change orders are only returned for Council approval if they exceed
the approved GMP, or are for additional work requested by City, which results in a significant
change to the original scope. Otherwise, change orders are reviewed/approved by staff and the
design builder. This practice is commonplace when using the design/build construction
technique.
An example of a change in the scope of work could be unanticipated subsurface conditions
causing substantial additional work by Erickson-Hall Construction that was not anticipated in the
original agreement (a preliminary soils evaluation and report was completed by a qualified
contractor which suggests that the soils should not be an issue). Therefore, depending on the
significance of problematic discoveries on the site, staff may be required to process a change
order due to a change in scope of work.
PROJECT COMPLETION DATES
Erickson-Hall Construction has agreed and the contract reflects the following completion dates:
· Substantial Completion: To be determined at 90% construction documents.
Page 4, Item: i ~
Meeting Date: 11/05/02
Substantial Completion shall be that stage in the progress of thc construction when all
Work on the Project is sufficiently complete in accordance with the Construction
Documents so that City can fully utilize entire Project; Substantial Completion shall
further mcan that all goods, services and systems to be provided under thc terms and
conditions of the Construction Documents are in place and have been initially tested, and
are operationally functional, subject only to final testing, balancing and adjustments and
normal Final Completion punch list Work.
· Final Completion shall occur at the conclusion of construction when all Work on thc
Project is sufficiently complete in accordance with the Construction Documents so that
City can fully occupy and utilize entire project; Final Completion shall further mcan that
all goods, services and systems be provided under the terms and conditions of the
Construction Documents arc in place and have bccn tested, and are operationally
functional.
ENVIRONMENTAL STATUS
The Environmental Review Coordinator has reviewed the proposed project for compliance with
the California Enviromnental Quality Act and has determined that the project qualifies for a
Class 2 categorical exemption pursuant to Section 15302 of the State CEQA Guidelines. Thus,
no further environmental review is necessary.
FISCAL IMPACT:
Erickson-Hall Construction shall perform design services, general conditions, insurance, bonds,
construction and construction management for thc not to exceed amount of $1,267,952. At 90%
complete documents a GMP will be established as part of this agreement, which will include, but
not limited to, the cost for all labor, equipment, and material to design and build a fully
functional 4,000 square foot single bay outfit and storage building at Fire Station No. 2 in
accordance with all applicable building codes. The appropriation of $1,705,517 ($707,243
Public Facilities Development Impact Fee Fund and $998,274 General Fund) includes a design
and construction budget of $1,267,952, $182,518 for Furniture, Fixtures and Equipment ("FFE"),
$100,000 for City Staff Time and a contingency of $155,0~47.
Attachments: Attachment 1 - Design/Build Agreement
Attachment 2 Project Budget
J:\BPC~BPC Administration~Agenda\Fire Station #2 Al 13.doc
RESOLUTION NO. 2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTiNG THE CITY MANAGER'S
CERTIFICATION OF THE QUALIFICATIONS OF THE
DESIGN-BUILD TEAM, APPROVING A DESIGN BUILD
AGREEMENT WITH ERICKSON-HALL CONSTRUCTION
CO. FOR THE PROVISION OF SERVICES REQUIRED TO
DESIGN AND CONSTRUCT A 4,000 SQUARE FOOT
SINGLE BAY OUTFIT AND STORAGE BUILDING AT
FIRE STATION NO. 2, APPROPRIATING FROM THE
GENERAL FUND AND FROM THE PUBLIC FACILITIES
DEVELOPMENT IMPACT FEE FUND TO NEWLY
CREATED CAPITAL IMPROVEMENTS PROJECT FOR
FIRE STATION NO. 2 AND AUTHORIZING THE MAYOR
TO EXECUTE SAiD AGREEMENT.
WHEREAS, on July 30, 2002, the Department of Building and Park Construction
issued an RFP for Design Build Services to assist staff in the work required to design and
construct Fire Station No. 7 and additional fire stations; and
WHEREAS, on August 20, 2002, the City received eight proposals in response to
the RFP and created a short list of four firms; and
WHEREAS, a selection committee, appointed by the City Manager, reviewed and
evaluated the proposals and conducted interviews with all four firms; and
WHEREAS, Erickson-Hall Construction, one of the firms placed on the Qualified
List, was selected as the most qualified firm to handle this type of project; and
WHEREAS, pursuant to CVMC § 2.57.030, the City Manager must certify that
the most qualified firms have been interviewed and selection ora firm off the Qualified List is in
the best interest of the City and the City Manager does so certify based upon the following:
1. Erickson-Hall Construction was the #2 ranked firm after the
completion of RFP process to locate firms uniquely qualified to
perform Fire Station design and construction.
2. Erickson-HalI and the architect, Michael Merino, have been
involved in the design and construction of numerous Fire Fighting
Support Facilities, most recently Rancho Santa Fe Fire Stations
No. 2 and 5 and Fire Station Renovations, and additions for the
Cities of Arcadia and Manhattan Beach.
3. Time is of the essence regarding these facilities. This modification
is needed to ensure the outfitting of equipment to be used at Fire
Station 7 to serve the Eastern Territories.
4. Best interest of the City to proceed in this manner to ensure the
timely completion of the facilities necessary to better serve the
growing population of the City.
WHEREAS, staff recommends that the City Council approve a Design Build
Agreement with Erickson-Hall Construction Co. and appropriate funds therefore.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby accept the City Manager's recommendation to select a Design Builder
off the list of Qualified Design Build Entities (Fire Stations) and approve a Design Build
Agreement with Erickson-Hall Construction Co. to design and construct the 4,000 square foot
single bay outfit and storage building at Fire Station No.2, a copy of which shall be kept on file
in the office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is
hereby authorized to execute said Agreement on behalf of the City ofChula Vista.
BE IT FURTHER RESOLVED that the sum of$998, 274 trom the General Fund
and $707,243 from the Public Facilities Development Impact Fee Fund and appropriated for this
project.
Presented by
Approved as to form by
Andy Campbell
Director of Building and Park
Construction
J:\Attorncy\RESO\Fire Station #2 b.doe
2
/4- (p
Attachment 1
DESIGN/BUILD AGREEMENT
This Agreement is made and entered into this 22nd day of October 2002, by and
between THE CITY OF CHULA VISTA (herein "City"), a municipal corporation, and
Erickson-Hall Construction Co. ("Design Builder pr D/B"). City and D/B are sometimes
hereinafter referred to as Parties ("Parties").
RECITALS
WHEREAS, the project, Fire Station No.2 remodel to add a 4,000 square foot single
bay storage and fire truck outfit building, and
WHEREAS, the City of Chula Vista in an on-going effort to expand the services to
the community has planned for this facility located in the Hilltop area of the City.
WHEREAS, on July 30,2002 an RFP (Exhibit 6) was circulated for a design builder
to design and build Fire Station NO.7 and additional Fire Stations; and
WHEREAS, on August 20, 2002 the City received eight bids in response to the RFP;
and
WHEREAS, after review by a City Selection committee four respondents were
invited for interviews; and,
WHEREAS, all four respondents were interviewed and based upon the RFP
response fore Fire Station 7 (Exhibit 3) and interview, Design Builder (D/B) was placed on
the list of Qualified Design-Build Entities to provide Design-Build services for Fire Stations
to the City; and
WHEREAS, after discussion with Design Builder (D/B), the City Manager certified
pursuant to Municipal Code §2.57.030 that it was in the City's best interest to proceed in
this manner; and
WHEREAS, Design Builder (D/B) was the respondent who best met the design,
monetary and time criteria of the project with whom City could negotiate an agreement; and
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein:
THE PARTIES AGREE:
Section 1:
General Scope of Work to Be Performed bv D/B
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J:IBPCIBPC AdministrationlDesign Build Agreementsl#2 Design Build Agmt 10-11-02 Revised.doc
1.1 In accordance with the terms set forth in this Agreement and the RFP for the
Fire Station NO.7 project (see Exhibit 6), D/B shall design and construct for
the City: a completed and fully functional 4,000 square foot single bay
storage and fire truck outfit building (referred to hereafter as "Project")
including the facilities and site-work. The project shall include, but not be
limited to all components outlined and described in the attached drawing (see
Exhibit 1). Fire Station NO.2 is located at 80 East J Street in the western
portion of Chula Vista (see Exhibit 4).
1.2 The services to be provided by D/B are generally to be performed in 3
"Phases"; the services to be provided in each Phase are specified elsewhere
in this Agreement.
1.3 The D/B shall:
1.3.1 Perform all services, work and obligations as described herein for
the Guaranteed Maximum Price ("GMP") determined pursuant to
Section 11 of this agreement. The GMP shall not exceed the
amount of $1,267,952 which shall include all Hard Construction
Costs necessary to provide a fully completed and functional project,
including but not limited to, the cost for all labor, equipment, material
and the D/B Fixed Fee which includes fees and expenses of any
type, including all expenses under this Agreement, associated with
completing the project, whether on-site or off-site, any reimbursable
cost (as defined in Section 11.2), and the DIB Contingency Fund.
Any cost incurred by D/B in excess of said GMP shall be the sole
responsibility of the D/B unless a change order is approved by the
City pursuant to Section 7 and 12 of this Agreement. All funds
remaining in the GMP at completion of the project shall belong to the
City.
1.3.2 Substantial Completion: To be determined at 90% construction
drawings.
Substantial Completion shall be that stage in the progress of the
construction when all Work on the Project is sufficiently complete in
accordance with the Construction Documents so that City can fully
utilize entire Project; Substantial Completion shall further mean that
all goods, services and systems to be provided under the terms and
conditions of the Construction Documents are in place and have
been initially tested, and are operationally functional, subject only to
final testing, balancing and adjustments and normal Final
Completion punch list Work.
2
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1.3.3 Achieve "Final Completion" (as defined in §14.2) as established in the
Project Schedule.
Section 2:
General Obliqations of City
2.1 City shall be obligated as follows:
2.1.1 Designate a representative (or representatives) who is authorized to
act on behalf of City with respect to the Project, except as to those
decisions specified herein or by law that require authorization by the
Chula Vista City Council;
2.1.2 Make decisions with reasonable promptness to avoid delay in the
orderly progress of D/B's services per the Project Schedule;
2.1.3 Pay for and cause to be completed all necessary environmental
studies and obtain environmental approvals and/or permits with
reasonable promptness to avoid delay to the orderly progress of
D/B's performance per the Project Schedule;
2.1.4 At the request of D/B, City will use its best efforts to provide D/B with
any available information about the Project Site geotechnical soil
conditions; it will, however, be the responsibility of D/B to take all
reasonable steps to verify all such information as it deems necessary
to perform its services under this Agreement. City does not warranty
to D/B the accuracy or completeness of any such information.
2.1.5 Cooperate with D/B in identifying, processing and securing required
permits, licenses and inspections in a timely fashion; however, this
duty to cooperate does not relieve D/B of its primary obligations to
identify, apply for and secure all necessary permits (except as
provided in 2.1.3), licenses and inspections in a timely manner.
2.1.6 Make payments to D/B in the amounts and in accordance with the
terms set forth below.
2.1.7 Issue Certificate of Substantial Completion when City reasonably
determines the Project has achieved Substantial Completion as
defined below in Section 14.1.
2.1.8 Issue a Notice of Acceptance when City reasonably determines the
Project has achieved Final Completion as defined in Section 14.2.
3
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2.2 Citv Review Process. City shall review Design Development Drawings
(DD's), 50% Construction Drawings (CD's) and 90% Construction Drawings (CD's) which
shall allow construction of Project in conformity with the RFP for Project. For each D/B
submission, City shall have five (5) working days to review, approve, conditionally approve
or deny.
Section 3:
General Obliqations of D/B
3.1 D/B shall be obligated as follows:
3.1.1 At all times in performing its services under this Agreement to design
and deliver the best possible Project consistent with standard of care
in Section 3.3 that satisfies the time, monetary, quality and design
parameters set forth in this Agreement;
3.1.2 Design and construct the Project on time, consistent with time
frames set forth in the Project Schedule, and in such a manner that
the GMP or Contract Time of the Project shall not be exceeded, but
if D/B reasonably believes that any action, inaction, decision or
direction being made by City or agent for the City will likely result in
the GMP or Contract Time being exceeded or the Project being
completed late, D/B will notify City at Project Team meeting and in
writing within five (5) calendar days of discovering such action,
inaction, decision, or direction. Included in such notice will be an
estimate of the rough order of magnitude and time impact resulting
from such action, inaction, decision or direction. D/B shall provide
complete and accurate pricing within ten (10) calendar days of said
discovery.
3.1.3 Perform, or obtain the prior written consent of the City to subcontract
all design services for the Project utilizing qualified, licensed and
sufficiently experienced architects, engineers and other
professionals (herein jointly "Design Consultants") as identified in
Exhibit 3. D/B shall not be permitted to substitute any Design
Consultant unless authorized by City. The fact that the City approves
the subcontracting of any such services will in no way relieve the D/B
of any of its obligations or responsibilities under this Agreement;
3.1.4 Perform all construction on the Project utilizing Subcontractors
appropriately licensed by the California Contractors State License
Board or other required agency;
4
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3.1.5 Perform all services as expeditiously as is consistent with
reasonable skill and care and shall complete the services within
each and all of the time periods set forth in this Agreement;
3.1.6 Comply with the California Fair Employment and Housing Act and all
other State, Federal and local laws including, but not limited to, those
prohibiting discrimination, on account of race, color, national origin,
religion, age, sex or handicap;
3.1.7 Study all applicable laws, codes, ordinances, rules, orders,
regulations, and statutes affecting the Project, including but not
limited to, zoning, environmental, building, fire and safety codes and
coverage, density and density ratios and lien laws, and comply with
them in performance of its services. D/B shall ensure that within the
established GMP that the Project conforms to all applicable federal,
state and local laws, statutes, ordinances, rules, regulations, orders
or other legal requirements, (collectively "Governmental
Requirements") existing as of the date of this Agreement. However,
the City recognizes that Governmental Requirements and their
interpretations by governmental officials ("Code Authority") are often
subject to change at any time, even after issuance of a building
permit. If, after the date of this Agreement, modifications to the
Project are required because of a change in Governmental
Requirements or their interpretation by a Code Authority which had
not previously been given, or which if given, was different than a
prior interpretation of a Code Authority, D/B shall make the required
modifications to comply with the same. However, in the event of
such an occurrence, the GMP and Contract Time may be subject to
an adjustment in accordance with Section 12. Nothing contained in
this paragraph shall relieve D/B of its obligations to modify the
Project at its own expense where D/B has failed to construct the
Project in compliance with Governmental Requirements applicable
as of the date of this Agreement.
3.1.8 Control dust and noise in accordance with the provisions in Section
7-8.1 of the 2000 Edition of the Standard Specifications for Public
Works Construction, City Ordinances and this Agreement;
3.1.9 Use reasonable care to avoid damaging existing buildings, equipment
and vegetation adjacent to the Project Site. If D/B causes damage to
any of this property, D/B shall replace or repair said property at no
expense to City and shall not be a basis for seeking an adjustment to
the GMP or Contract Time. D/B agrees to indemnify City for any and
5
J:IBPCIBPC AdministrationlDesign Build Agreementsl#2 Design Build Agmt 10-11-02 Revised.doc
all fines, penalties, liabilities, cost imposed upon City, its officers,
employees and agents as a result of this Project.
3.1.10 To obtain all permits necessary to complete the Project. City shall
pay cost of permits. D/B shall be responsible for obtaining and
paying for all permits normally obtained by the trades or
subcontractors.
3.1.11 Conform its design to the requirements of the Americans With
Disabilities Act Accessibility Guidelines ("ADAAG") and the
Americans With Disabilities Act ("ADA").
3.1.12 Seek and obtain written approval from the City of the drawings for
each of the following phases: (1) design development (2)' 50%
construction drawings and (3) 90% construction drawings. Said
approval shall be evidenced by written notice to proceed with the
subsequent phase.
3.1.13 Provide cost estimating and value engineering services, which take
into consideration long-range maintenance costs, energy efficiency,
and impact operation of the Project. Provide cost estimate to the
City with 90% Construction Documents.
3.1.14 Review soils and geotechnical reports relating to the Project Site;
and determine and advise City if any further subsurface
investigations are warranted. If such further investigations are
authorized by City, D/B shall perform said investigations. The costs
of said investigations are Reimbursable Costs to be paid by the City
without markup, pursuant to Section 11.2.
3.2 D/B agrees to fully assume all risks, and costs associated with such risks, in
performing the services and meeting the obligations under this Agreement.
3.2.1 Unanticipated subsurface site conditions
3.2.1.1 City assumes risks for unanticipated subsurface site
conditions provided D/B notifies City in writing within five (5)
calendar days of discovery if D/B believes it has uncovered
or revealed a condition which:
3.2.1.1.1 differs materially from that indicated in the soils
and geotechnical reports furnished by City, or
6
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3.2.1.1.2 is of an unusual nature and differs materially
from conditions ordinarily encountered and
generally recognized as inherent in the work
required by Agreement.
3.2.1.2 Upon receipt of written notice, City shall promptly
investigate and if it determines the conditions do materially
differ, requiring a change in the Work, City shall commence
the processing of a change order pursuant to Section 12. If
City determines there is no bona fide Work scope change
or is a minor change, which does not impact GMP or
Contract Time, City shall notify D/B within ten (10) calendar
days.
3.2.1.3 D/B shall not be entitled to an adjustment in the GMP or
Contract Time if D/B knew or should have known of the
existence of such conditions at the time D/B submitted and
agreed to GMP or Contract Time; or the existence of such
condition could reasonably have been discovered as a
result of D/B's obligations pursuant to Section 3.1.17.
3.3 D/B shall perform in a manner consistent with that level of care and skill
ordinarily exercised by members of the profession currently practicing under
similar conditions and in similar locations. Compliance with this section by
D/B shall not in any way excuse or limit D/B's obligations to fully comply with
all other terms in this Agreement.
3.3.1 D/B warrants that at least one member of the D/B team shall be
licensed by the California Contractor's State License Board as a
General Building Contractor. D/B is to provide a list of the responsible
people within their organizations performing services, which shall
include their qualifications and their function, for approval by the City
prior to start of construction. City and D/B shall establish "key
personnel" who shall remain on the Project until Final Completion. If
any such "key personnel" leave the employment of D/B, City shall
have the right to approve the replacement personnel. D/B shall
comply with all licensing requirements of the State of California,
County of San Diego, and City of Chula Vista.
3.3.2 Project Manager and Project Architect throughout all phases of the
Project hereunder, the individual project manager and project architect
for the Project shall be Nathan Complin and Judy Shade. So long as
the Individual Project Manager and Project Architect remain in the
employ of the General Contractor and Architect, such persons shall
7
J:\BPC\BPC Administration\Design Build Agreements\#2 Design Build Agmt 10-11-02 Revised.doc
not be changed or substituted from the Project, or cease to be fully
committed to the Project as deemed necessary by the City in its
reasonable discretion, without the prior written consent or instruction
of the City. Any violation of the terms and provisions of this Section
shall constitute a material Default.
3.3.3 City Right to Remove Project Manager and Project Architect.
Notwithstanding the foregoing provisions of Section 3.3, if the
Individual Project Manager or Project Architect, for good cause,
proves not to be satisfactory to the City, upon written notice from the
City to the General Contractor, such person or person shall be
promptly replaced by a person who is acceptable to the City in
accordance with the procedures set forth below. .
3.3.4 Replacement Selection of Project Manager and/or Project Architect.
Within five (5) working days after receipt of a notice from the City
requesting the replacement of any Individual Project Manager or
Project Architect, or promptly following the discovery by the Design
Build Team that any Individual Project Manager or Project Architect is
leaving the employ of the General Contractor or Architect, as the case
may be, the replacemenUsubstitution (together with such person's
resume and other information regarding such person's experience and
qualifications) for approval by City. The replacemenUsubstitution shall
commence work on the Project no later than five (5) calendar days
following the City's approval of such replacement, which approval
shall not be unreasonably withheld. In the event that the City and
Design Build Team cannot agree as to the substitution of replacement
of the Individual, the City shall be entitled to terminate this Agreement
for cause.
3.4 D/B shall cooperate with City in obtaining Environmental approvals and/or
permits.
3.5 D/B agrees and acknowledges that the City Representative is the only
person with authority to approve additions or modifications to Project. Any
costs or delays resulting from or associated with additions or modifications
implemented without the written authorization of City Representative shall be
borne exclusively by D/B and not be grounds for an increase in GMP or
Contract Time unless necessary to protect public health, safety or property.
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Section 4: Desiqn Phase Services - Phase I
4.1.1 D/B shall develop and Implement Project Management Plan and
Procedures including:
4.1.1.1 Project status reports
4.1.1.2 Coordination/interface with the City and its other
consu Ita nts/ contractors
4.1.1.2.1 Initial Design kickoff meeting to be held no later
than five (5) working days from the Date of
Agreement.
4.1.1.3 Biweekly Progress meetings
4.1.1.4 Interface and communications with other agencies
4.1.1.5 Vendors and subcontractors management
4.1.1.6 Document control
4.1.1.7 Schedule and budget control
4.1.1.8 Quality assurance and quality control
4.1.1.9 Throughout the design phase, the D/B will be required to
provide scheduling and cost control reports monthly.
4.1.2 Utilizing the 2000 Edition of the Standard Specifications for Public
Works Construction, 2002 Edition of the Chula Vista Standard Special
Provisions, 2002 Edition of the Regional Standards, 2002 Edition of the
Chula Vista Construction Standard, the City's facility program, performance
and design criteria, concept drawings, and reports attached to the RFP and
incorporated herein by reference, DB shall:
4.1.2.1 Prepare construction drawings and specifications suitable
for obtaining City-approved permits and to allow
construction. Packaging of the Project into several
construction contracts, may be appropriate. Preparation of
technical materials and equipment specifications for pre-
purchase will be the responsibility of the DB.
4.1.2.2 Complete the design for all elements of the Project,
including, but not limited to: civil, structural, architectural,
mechanical, electrical, landscape, and specialty consulting
areas.
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4.1.2.3 Evaluate alternative structural and construction approaches
to ensure economical designs, which optimize
constructability yet meet all codes, architectural concepts,
schematic designs, and standard specifications of the
Project. Design and construction shall also meet all ADA
requirements.
4.1.2.4 Provide additional site surveys and geotechnical
investigations to the extent the DB determines they are
necessary for final design. The survey information provided
by the City is preliminary in nature and may not have
sufficient accuracy or scope to support final design.
4.1.2.6 Furnish support to a City constructability review team at the
50 percent design completion stage. Incorporate the
results of this review into the design.
4.1.2.7 Provide updated construction cost estimates at durations
specified in the RFP to support Value Engineering (VE) and
constructability reviews.
Section 5: Construction Phase Services - Phase II:
The DB shall construct the facility in accordance with City-approved plans
and specifications prepared by the DB to meet or exceed all requirements of
the City provided program, schematic design and the performance criteria.
The DB shall:
5.1.1 Conduct contractor meetings, as necessary, to provide technical
input.
5.1.2 Provide interpretation of technical specifications and drawings.
5.1.3 When appropriate, witness testing and review materials and
equipment testing results and provide comments regarding
conformance with specification requirements.
5.1.4 Provide list of required shop drawing submittals. Review shop-
drawing submittals for technical compliance and forward copy to City
for review.
5.1.5 Assist during final acceptance process by furnishing final walk-
through(s) and comments.
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5.1.6 The DB shall be responsible for complete management, supervision,
and reporting of all aspects of the construction of this Project.
5.1.7 The DB shall provide resident management and contract
administration, including specialists necessary for the functional,
safe, on-budget and on-schedule completion of the Project, starting
with the issuance of a Notice to Proceed, upon final construction
documents, from the City and extending through issuance of Notice
of Completion and Acceptance. City staff will perform inspections to
verify compliance with the plans, specifications and contract
documents.
The DB resident staff shall ensure construction compliance with
applicable local, state, and federal codes, building and
environmental permit requirements, construction mitigation
documents and enforcement of the Contract Documents.
5.1.8 The DB is responsible for the design, construction and all contract
administration services during the construction of the Project in
accordance with all applicable laws, regulations, and codes,
including, but not limited to, the 1990 Americans with Disabilities Act
[ADA] and Title 24 California Code of Regulations [Building Code] as
defined in Section 18910 of California Health and Safety Code [Title
24]. The DB is responsible as a designer, employer, and City
representative to comply with all portions of Title 24 and the ADA.
5.1.9 The DB shall provide surveying, and other contracted services as
required to complete project construction inspection and testing
tasks. The City will provide special inspection services and periodic
building inspections. DB is responsible for scheduling and
coordinating all inspections and paying for all re-inspections.
5.1.10 The DB shall be responsible for preparing the Critical Path Method
(CPM) schedule utilized during the project construction and startup
activities. Use Microsoft Project scheduling software consistent with
the City reporting system.
5.1.11 The DB shall develop a project-specific Plan for defining, tracking
and reporting cash flow activity requirements and submit such plan
to the City for review and approval prior to implementation.
5.1.12 The DB shall implement and maintain an internal records
management and document control system as required to support
project operations. The DB shall provide records management and
document control information in a manner consistent with the City's
reporting system.
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5.1.13 The DB shall administer and coordinate the project contract closeout
process and shall resolve any warranty provision issues. The DB
shall report progress of project contract closeout to the City in a
manner consistent with the City's reporting system.
5.1.14 The DB shall administer and enforce the Environmental Mitigation
Monitoring and Reporting Plan for the Project, if any. The DB shall
report a record of environmental issues to the City in a manner
consistent with the City's reporting system.
5.1.15 Prepare Operations Manual.
Section 6: Operation/Startup Phase Services - Phase III
6.1.1 The DB shall prepare, submit for City review and written approval,
and implement a Project Startup and Testing Plan for the Project.
6.1.2 The DB shall conduct Operator Training Sessions for facilities.
6.1.3 The DB shall supervise, manage, and coordinate all project startup
and testing activities for life support safety and other mechanical
systems within the provisions of the project Contract Documents.
6.1.4 The DB shall report progress of project startup and testing to the
City in a manner consistent with the City's reporting system.
6.1.5 The DB shall report to the City all guarantee/warranty disputes. The
DB shall proceed to resolve such disputes after having submitted to
the City for review and approval the DB's approach for obtaining
resolution for the dispute.
6.2 Unless the D/B receives the City's prior approval to substitute equal or better
JUClhtv materials, the D/B warrants to City that material and equipment incorporated in the
f'rOJl'Gt will be new, unless otherwise specified, and that the Project will be of good quality,
:ree from faults and defects, and in strict conformance with the Construction Documents
-::md ir¡ accordance with Section 20.
Section 7:
Additional Services
7.1 City will have the right to direct D/B to perform Additional Services beyond
(hose specified in this Agreement. D/B may provide Additional Services only if authorized
In writing, in advance, by City and after complying with Section 7.3. The City may propose
::18nges to the Work of a subcontractor after the bid has been awarded. In the event of a
challge of this nature, D/B will estimate the cost of the Change Order, assist City in
developing drawings and specifications as necessary, solicit a revised bid, negotiate with
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the subcontractor, present a recommendation for a Change Order to City, and implement
construction as approved by City.
7.2 For Additional Services which increase the Hard Construction Costs, design
costs, or other reasonably necessary costs of the Project, D/B shall be paid a fee pursuant
to the sliding scale as detailed on Exhibit 2. Said fee shall cover all home office overhead
and profit to be earned on the additional services.
For additional services, which result in an extension of the Substantial Completion
date, D/B shall be paid a fee equal to the number of working days the Substantial
Completion date is extended multiplied by the daily proration of the general conditions fee
included within the GMP.
7.3 If at any time D/B contends that it is being asked to perform Additional
Services, it shall give City written notice 5 days prior to performing said services indicating
that D/B intends to seek additional compensation beyond the D/B Fixed Fee. Furnishing
advance written notice shall be a condition precedent to being able to seek additional
compensation from City.
Section 8:
Bonds
8.1 D/B shall furnish performance and payment bonds with the names of the
obligees designated as the City in the amount set forth below, as security for the faithful
performance and payment of all D/B's obligations under the Agreement. These bonds shall
remain in effect at least until thirty (30) days after the filing date of Notice of Completion,
except as otherwise provided by law or regulation or by this Agreement. D/B shall also
furnish such other bonds as are required by this Agreement.
8.1.1 The performance bond shall be in the amount of 100% of the GMP.
8.1.2 The payment bond shall be in the an amount of 100% of the Hard
Construction Costs.
8.2 All bonds shall be in the form prescribed by City and by such sureties which
are admitted insurers in the State of California and are subject to regulation by the
Department of Insurance, and which also satisfy the requirements stated in
Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or
regulations. All bonds signed by an agent must be accompanied by a certified copy of such
agent's authority to act. Surety companies must be duly licensed or authorized in the
jurisdiction in which the Project is located to issue bonds for the limits so required.
8.3 If the surety on any bond furnished by D/B is declared bankrupt or becomes
insolvent or its right to do business is terminated in any state where any part of the Project
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is located, D/B shall within seven (7) days thereafter substitute another bond and surety,
which must be acceptable to City.
Section 9:
Insurance
9.1 . The insurance provIsions herein shall not be construed to limit D/B's
indemnity obligations contained in this Agreement.
9.2 D/B shall procure and maintain for the duration of the contract, insurance
against claims for injuries to persons or damages to property, which may arise from or in
connection with the performance of the work hereunder by the D/B, his agents,
representatives, employees or subconsultants. All subconsultants shall be required to
comply with the applicable insurance provisions. The maintenance of proper coverage is a
material element of the contract and that failure to maintain or renew coverage or to provide
evidence of renewal may be treated by the City as a material breach of contract.
9.3 Minimum Scope of Insurance
9.3.1 Coverage shall be at least as broad as:
9.3.1.1 Insurance Services Office Commercial General Liability
coverage (occurrence Form CG 0001).
9.3.1.2 Insurance Services Office Form (G0009 11 88 Owners
and Contractors Protective Liability Coverage Form-
Coverage for Operations of Designated Contractor).
9.3.1.3 Insurance Services Officer Form Number CA 0001
covering Automobile Liability, Code 1 (any auto).
9.3.1.4 Workers' Compensation insurance as required by the
State of California and Employer's Liability Insurance.
9.3.1.5 Errors and Omissions.
9.4. Minimum Limits of Insurance
9.4.1 Contractor or appropriate subconsultant shall maintain limits no less
than:
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9.4.1.1 General $1,000,000 per occurrence for bodily
Liability: injury, personal injury and
property damage. If
(Including Commercial General
operations. Liability Insurance or other
products and
completed form with a general
operations.) aggregate limit is used,
either the general
aggregate limit shall apply
separately to this
project/location or the
general aggregate limit
shall be twice the required
occurrence limit.
9.4.1.2 Automobile $1,000,000 per accident for bodily injury
Liability: and property damage.
9.4.1.3 Employer's $1,000,000 per accident for bodily injury
Liability: or disease.
9.4.1.4 Errors and
Omissions:
$1,000,000 per occurrence
9.5 Deductibles and Self-Insured Retentions
9.5.1 Any deductible or self-insured retentions must be declared to and
approved by the City. At the option of the City, either: the insurer
shall reduce or eliminate such deductibles or self-insured retentions
as respects the City, its officers, officials, employees and volunteers;
or the D/B shall provide a financial guarantee satisfactory to the City
guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
9.6 Other Insurance Provisions
9.6.1 The general liability policy shall contain, or be endorsed to contain,
the following provisions:
9.6.1.1 The City, its officers, officials, employees, and volunteers
are to be covered as insureds with respect to liability
arising out of automobiles owned, leased, hired or
borrowed by or on behalf of the contractor; and with
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respect to liability anslng out of work or operations
performed by or on behalf of the D/B including materials,
parts or equipment furnished in connection with such
work or operations. General liability coverage can be
provided in the form of an endorsement to the D/B's
insurance, or as a separate owner's policy.
9.6.1.2 For any claims related to this project the D/B's insurance
coverage shall be the primary insurance as respects the
City, its officers, officials, employees, and volunteers. Any
insurance or self-insurance maintained by the City, its
officers, officials, employees, or volunteers shall be
excess of the D/B's insurance and shall not contribute
with it.
9.6.1.3 Coverage shall not extend to any indemnity coverage for
the active negligence of the additional insured in any case
where an agreement to indemnify the additional insured
would be invalid under Subdivision (b) of Sections 2782 of
the Civil Code.
9.7 Verification of Coverage
9.7.1 Contractor shall furnish the City with original certificates and
amendatory endorsements effecting coverage required by this
clause. The endorsements should be on forms provided by the City
or on other than the City's forms, provided those endorsements or
policies conform to the requirements. All certificates and
endorsements are to be received and approved by the City before
work commences. The City reserves the right to require complete,
certified copies of all required insurance policies, including
endorsements affecting the coverage required by these
specifications at any time.
9.8 Subcontractors
9.8.1 All coverages for subcontractors or subconsultants shall be subject
to all of the requirements stated herein, except that subcontractors
or sub-consultants not providing design services for the project shall
not be required to provide Errors and Omissions insurance pursuant
to paragraph 9.3.1.5 and 9.4.1.4. Subcontractors and
Subconsultants shall be protected against risk of loss by maintaining
insurance in the categories and at the limits required herein.
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Subcontractors and Subconsultants shall name City and D/B as
insured's under its policies.
9.9 Cooperation. The D/B and its Contractors shall cooperate fully with and
provide any information or records requested by the City or regarding all aspects of the
insurance and project, including but not limited to claims, audit, payroll, insurance records
and safety. Delays in reporting information to the City may result in delays in progress
payments to the D/B.
9.10 Prior to beginning Work under the Agreement, each and every Contractor of
any tier shall furnish Certificates of Insurance satisfactory to the City. All such Certificates
will contain at least the following provisions:
9.10.1 Thirty (30) days written notice to the City prior to any cancellation,
non-renewal or material reduction in coverage.
9.10.2 The words "will endeavor" and "but failure to mail such notice shall
impose no such obligation or liability of any kind upon the company,
its agents or representatives" will be deleted from the Certificates.
9.10.3 Throughout the life of the Agreement, each and every Contractor of
any tier shall pay for and maintain in full force and effect, with a
carrier or carriers authorized by the California Insurance
Commissioner to do business in the State of California, any policies
required by this Agreement.
9.10.4 Any insurance provided for this project shall be written through an
insurer with an A.M. Best Rating of not less than A:V. Any
exceptions are at the sole discretion of the City and subject to
written approval of the City.
9.11 Questions concerning the insurance requirements ofthis Agreement shall be
directed to the City Representative.
Section 10: Inspection
10.1 City shall be responsible for City inspection and material testing and
inspections, with reimbursement to be required by D/B for any reinspections. The City shall
either perform said inspection services with its own forces or contract with third parties. It
shall be the responsibility of D/B, however, to call for, coordinate and schedule all
inspections.
10.2 City, its consultants, subcontractors, independent testing laboratories as well
as other govemmental agencies with jurisdictional interests will have
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access at reasonable times for this observation, inspecting and
testing. D/B shall provide them proper and safe conditions for such
access and advise them of D/B's safety procedures and programs so
that they may comply.
10.3 City will make, or have made, such' inspections and tests, as the City deems
necessary to see that the Work is being accomplished in accordance with the requirements
of the Construction Documents. Unless otherwise specified, the cost of such inspection
and testing will be borne by the City. In the event such inspections or tests reveal non-
compliance with the requirements of the Construction Documents, D/B shall bear the cost
of corrective measures deemed necessary by City, as well as the cost of subsequent re-
inspection and re-testing. Neither observations by the City nor inspections, tests, or
approvals by others shall relieve D/B from D/B's obligations to perform the Work in
accordance with the Construction Documents. D/B shall give City timely notice of
readiness of the Work for all required on and off-site inspections, tests, or approvals and
shall cooperate with inspection and testing personnel to facilitate required inspections or
tests. D/B shall give at least 24 hours notice for on-site inspection and five (5) days notice
for off-site inspection.
10.4 City has the right to stop or suspend Work activities which will conceal or
cover up D/B Work product which is to be inspected or tested, or which will interfere with
the inspection or testing activities, for a reasonable time and D/B will have no right to
additional cost or time it may incur as a result of the Work stoppage.
Section 11: D/B GMP for Services and Reimbursements
11.1 D/B shall submit to City 90% Construction Documents ("CD's") for approval.
Upon the approval ofthe 90% CD's, D/B shall, within ten (10) working days, submit a GMP
for approval by City. Said GMP shall be based upon the schedule set forth in Exhibit 2 and
Exhibit 5. The GMP shall include all Hard Construction Costs, D/B Contingency Fund,
Reimburseable Costs, and D/B Fixed Fee for the complete design and construction of the
entire Project as specified in the 90% CD's; provided that:
11.1.1 The GMP shall not exceed $1,267,952
11.1.2 Said GMP shall be supported by a detailed itemized breakdown that
shows: the D/B Fixed Fees and the expected Hard Construction
Costs for each of the major trades 0 the Project which will include
labor, material expenses, equipment costs, and a reasonable D/B
Contingency Fund. Said D/B contingency fund shall not exceed 5%
of the Hard Construction Costs.
11.1.3 All Hard Construction Costs included in the GMP are for direct
Construction costs incurred in performing the work, including taxes,
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delivery and installation. City shall reimburse D/B for the exact
amount of the direct self performed work, subcontract or invoice
amount. No markup, handling fees, overhead, or other charges are
to be added or paid. Upon Final Completion of the Project, any
amount of Hard Construction Costs or D/B Contingency Fund
monies not utilized shall result in a deductive Change Order.
11.1.4 The GMP shall include a D/B Contingency Fund which can be used
by the D/B with City approval. If the Parties mutually agree that
there is a sufficient surplus, the D/B Contingency Fund will be
available to provide additional funds for Change Orders as provided
for in Section 7 of this Agreement. This Contingency Fund will not
be available for: (1) Work required due to D/B's and/or Contractors'
failure to perform according to the terms of this Agreement and/or in
compliance with the Construction Documents, or (2) uninsured
losses resulting from the negligence of D/B or its Contractors. All
change orders, including zero dollar change orders, which require
the use of the D/B Contingency Fund, shall require City approval.
The City reserves the right to seek reimbursements for any funds
used due to errors or omissions of the Design Consultants.
11.1.5 Prepare, with the cooperation of the City, altemate bid items to assist
in meeting the GMP;
11 .2 Except as otherwise expressly provided in this Agreement, as full and
complete compensation for performance of all services and obligations under this
Agreement, D/B shall be compensated ("D/B GMP") by a sum to be determined at 90%
construction documents pursuant to Section 11.1. GMP shall not be exceeded unless
additional services are requested pursuant to § 7 above or a change order issued pursuant
to § 12. Unless otherwise expressly provided in this Agreement, D/B GMP shall include full
compensation for all costs of any type incurred by D/B in performing all services and
obligations under this Agreement, including but not limited to the following:
11.2.1 All Design Consultants, including but not limited to architectural,
structural, civil, mechanical, electrical, communications, graphics and
art consultants, landscape architects, and acoustical, audio visual,
lighting, and security consultants.
11.2.2 Estimating, value engineering and construction management;
11.2.3 Construction supervision and project management personnel,
including but not limited to superintendents, Project managers,
Project secretaries, Project engineers, Project accountants, and all
other D/B personnel wherever located;
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11.2.4 All on-site and off-site equipment, supplies and facilities, including
but not limited to, computers, estimating, dictating, communication
and accounting equipment, office space, trailers, field equipment and
storage facilities;
11.2.4.1
In no case shall the cumulative monthly rental charges
to the Project for equipment and Small Tools used by
the D/B exceed 90% of the fair market value of anyone
piece of equipment or Small Tools. At City's option, the
full price for equipment or Small Tools may be paid, and
City may take possession upon completion of the Work.
11.2.5 . All home-office and field overhead costs of any type including
document control and retention;
11.2.6 All business license costs;
11.2.7 All profit D/B intends to earn under this Agreement.
11.2.8 All direct and incidental costs incurred by D/B, except for those
specifically identified in Section 11.2.
11.3 D/B shall be reimbursed, without markup and only as specified in this
Agreement for the following "Reimbursable Costs."
11.3.1 Any other reimbursable cost expressly provided for elsewhere in this
Agreement.
11.4 Bond Premium to be paid by City as a base rate of $6000 plus $8.00 per
$1000 of Hard Construction Costs over $500,000.
11.5 D/B agrees and acknowledges the City retains its full and complete discretion
for all legislative actions, including any future appropriations necessary to complete this
Project or fund this Agreement. As more fully provided in Section 24, the City may
terminate this Agreement for any reason, including but not limited to, if City Council fails to
appropriate sufficient funds or is unsuccessful at obtaining long term financing.
Section 12: ChanQe in GMP and Contract Time
12.1 The GMP and Contract Time may only be changed by written Change Order.
Change Orders shall be issued only under the following circumstances:
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12.1.1 The City directs D/B to perform Additional Services or City Changes
as provided in Section 7.
12.1.2 For reasons expressly provided elsewhere in this Agreement.
12.2 The following procedure shall be followed for the issuance of Change Orders:
12.2.1 Upon the occurrence of any event that gives rise to a Change Order,
D/B shall give the City notice of the same with 5 days. D/B shall not
proceed with any such services or work until such notice has been
given to the City except if such services or work are necessary to
protect public health, safety or property.
12.2.2 Unless otherwise directed by the City Representative in writing,
before proceeding with any Change Order work D/B shall promptly
provide the City with a detailed and complete estimate of cost
impact associated with the Change Order, including all appropriate
direct and indirect costs and credits. All such costs and credits
shall be accurately categorized into D/B Fixed Fee, Reimbursable
Costs or Hard Construction Costs. D/B shall also provide City with a
realistic estimate of the impact, if any, the Change Order will have
on the Contract Time.
12.2.3 Upon submission of the detailed estimates by the D/B, the Parties
will attempt to negotiate an appropriate adjustment in GMP and
Contract Time. If an agreement is reached, a Change Order
reflecting the agreement will be executed by the Parties. If an
agreement is not reached, the City shall have the option to direct the
D/B to proceed with the subject services and/or work, during which
time the D/B shall contemporaneously maintain accurate and
complete records of all labor, material and equipment utilized in
performing the subject services and/or work. These records shall be
submitted to the City and shall become the basis for continued
negotiations between the Parties for an equitable adjustment to the
GMP and/or Contract Time.
12.2.4 In the event there is any disagreement or dispute between the
Parties as to whether the D/B is entitled to a Change Order or the
amount of the Change Order, the matter shall be resolved in
accordance with Section 31. D/B shall not have the right to stop or
delay in the prosecution of any services or work, including services
or work that is the subject of the Change Order, pending this
resolution process. Instead, D/B shall continue diligently
prosecuting all such services and work.
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12.2.5 City may, in its sole discretion, adjust the GMP or Contract Time for
any undisputed amount or time associated with the Change Order or
Additional Services.
Section 13: Payment Terms
13.1 D/B shall submit certificate and application for payment to the City for Phase I
services as follows:
13.1.1 $69,040 upon completion of one-half of the Phase I Services as
determined by the City.
13.1.2 $69,040 upon completion of all Phase I Services as determined by
the City. Retention for Phase I to be released 60 days after receipt
of Building Permit.
13.1.3 $10,000 for Phase II Services for contract administration. Cost to be
paid on a per month schedule by dividing cost by construction
duration.
13.1.4 In the event City solicits and/or approves Design Documents that
materially differ from the Designs called for in the RFP,
compensation shall be set pursuant to provision for additional
services set forth in Sections 7 and 12.
13.2 D/B shall provide all Phase II and III services for the D/B GMP less any
payments made pursuant to § 13.1. D/B shall submit certificate and application for
payment to City on or before the 5th day of each calendar month for Phase II and III
services. The monthly payment application shall be based upon the percentage of
completion of the Schedule of Values plus any Reimbursable Costs, less any payments
previously made by the City and subject to the receipt of unconditional lien releases for all
prior payments and if the invoiced amount is not disputed by City, it shall pay D/B ninety
percent (90%) of payment application based upon the percentage complete of the
Schedule of Values and 100% of the reimbursable costs within thirty (30) days after receipt
of the fully documented invoice. City will withhold the remaining 10% as security for D/B's
full performance.
13.3 D/B shall develop and maintain an accurate system for tracking all
Reimbursable Costs. Utilizing this system, D/B shall include with each month payment
application an itemization of all such Reimbursable Costs actually incurred by D/B, during
the previous month. If requested by the City, D/B shall provide all backup documentation
supporting such Reimbursable Costs.
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13.4 D/B shall develop and maintain an accurate system for tracking all Hard
Construction Costs it incurs on the Project. Utilizing this system, D/B shall include with
each monthly application for payment an itemization of all Hard Construction Costs actually
incurred by D/B during the previous month.
13.5 D/B shall separately submit to City certificate. and application for payment on
a monthly basis for any authorized Additional Services performed by D/B. Subject to the
receipt of unconditional lien releases for all prior payments and if Additional Services are
not disputed by City, City shall pay ninety percent (90%) ofthe invoiced amount within thirty
(30) days of receipt of fully complete invoice. City will withhold the remaining 10% as
security for D/B's full performance.
13.6 Subject to Sections 13.8, City shall pay D/B the ten percent (10%) retention
being withheld. pursuant to Sections 13.2, and 13.5 as part of the "Final Payment" to D/B.
Final Payment will be made thirty-five (35) days after Final Completion.
13.7 The City Manager will consider the release of the entire retention for
subcontractors upon completion of the subcontractors' work and execution of a disclaimer
and unconditional final lien release by the subcontractor.
13.8 In lieu of withholding retention under this Agreement, at the election of D/B,
City will deposit retention amounts into escrow and/or the substitution of securities for
money as provided in California Public Contract Code Section 22300.
Section 14: Proiect Completion
14.1 Substantial Completion shall be that stage in the progress of the construction
when all Work on the Project is sufficiently complete in accordance with the Construction
Documents so that City can fully utilize entire Project; Substantial Completion shall further
mean that all goods, services and systems to be provided under the terms and conditions
of the Construction Documents are in place and have been initially tested, and are
operationally functional, subject only to final testing, balancing and adjustments and normal
Final Completion punchlist Work.
14.2 Final Completion shall be deemed to occur on the last ofthe following events:
(1) recordation of a Notice of Completion for the Project; (2) acceptance of the Project by
the City; (3) issuance of a final Certificate of Occupancy for the Project; (4) submission of
all documents required to be supplied by D/B to City under this Agreement, including but
not limited to As-Built Drawings, warranties, and operating manuals; (5) and delivery to City
of a Certificate of Completion duly verified by D/B.
14.3 D/B shall provide City with a Certificate of Completion, certifying to City under
penalty of perjury that the Project has been completed in accordance with the Construction
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Documents, all applicable building codes and regulations, all permits, licenses, and
certificates of inspection, use and occupancy, and ordinances relating to the Project.
14.4 D/B shall provide five sets of City final record drawing documents at the end
of construction and one copy in electronic format ("As-Built Drawings") and one copy of
reproducible drawings. As-Built Drawings are to be accurate and legible records showing
exact location by dimensions, and the exact depth by elevation of underground lines,
valves, plugged tees, wiring and utilities.
14.5 D/B shall provide a copy of, or make available before destruction, all records
(which includes all writings as defined in Evidence Code Section 250) to the City upon
receipt or generation, which shall include a copy of D/B's filing protocol.
Section 15: Contract Time
15.1 The "Contract Time" shall be the number of calendar days stated in Section
1.3.2 for D/B to achieve Substantial Completion.
15.2 "Time is of the essence" with regard to Contract Time and all milestones listed
in the Project Schedule.
15.3 The Contract Time may only be changed by a Change Order as set forth in
Section 12.
Further, an extension in Contract Time will not be granted unless D/B can
demonstrate through an analysis of the Project Schedule that the increases in the time to
perform or complete the Project, or specified part of the Project, beyond the corresponding
Contract Time arise from unforeseeable causes beyond the control and without the fault or
negligence of D/B, its Design Consultants, and subcontractors or suppliers, and that such
causes in fact lead to performance or completion of the Project, or specified part in
question, beyond the corresponding Contract Time, despite D/B's reasonable and diligent
actions to guard against those effects.
15.4 D/B carries the burden of proving an entitlement to an increase in the
Contract Time. Delays attributable to and within the control of Design Consultants, or
subcontractor or supplier shall be deemed to be delays within the control of D/B. No time
extension will 'be allowed for such delays. An increase in Contract Time does not
necessarily mean that D/B is due an increase in the GMP.
Section 16: Late Completion
16.1 City and D/B recognize that time is of the essence in this Agreement and that
City will suffer financial loss if the Project is not completed within the Contract Time, plus
any extensions thereof allowed in accordance with Section 15.3. They also recognize the
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delays, expense, and difficulties involved in proving in a legal proceeding the actual loss
suffered by City if the Project is not completed on time. Accordingly, instead of requiring
any such proof, City and D/B agree that D/B shall pay as liquidated damages (but not as a
penalty) for each calendar day of delay beyond the time specified for Substantial
Completion of the project, the following amounts which D/B expressly agrees are "not
unreasonable under the circumstances" as defined in California Civil Code §1671 (b): $100
for each calendar day. Liquidated Damages shall not be assessed after the date on which
Substantial Completion is achieved pursuant to Section 14.
Section 17: Riqht to Modify Work
17.1 Without invalidating the Agreement and without notice to any surety, City may
at any time or from time to time, order additions, deletions, or revisions in the Project; these
will be authorized by a written Çhange Order prepared and issued by City. Upon receipt of
any such document, D/B shall promptly proceed with the Work involved which will be
performed under the applicable conditions of the Construction Documents (except as
otherwise specifically provided).
17.2 When City desires a change in the Project, City may issue a Request for
Proposal to D/B. D/B will be required to respond within the time indicated by City.
Section 18: Intentionally Omitted
Section 19: Work Bv Others
19.1 City may perform other work related to the Project at the Project Site by City's
own forces, or let other direct contracts ("City Contractor"). The City will give D/B
reasonable notice of its intent to do such other work. D/B's work shall take priority over the
City Contractors; but the Parties will use their best efforts to coordinate their work so as to
minimize the disruption to each other's work and to allow City Contractor to proceed
expeditiously.
19.2 If the proper execution or results of any part of D/B's work depends upon the
work by the City or City Contractor, D/B shall promptly inspect and report to City in writing
any apparent delays, defects, or deficiencies in the City's work that render it unavailable or
unsuitable for such proper execution and results. D/B's failure to promptly report such
delays, defects, or deficiencies in writing before commencement of the affected work, will
constitute an acceptance of the City's work as fit and timely for integration with D/B's Work
except for latent defects and deficiencies in the City's work for which D/B will not be
responsible.
19.3 If D/B or any person or entity working for D/B causes damage to the City's or City
Contractor's work, property, or person, or if any claim arising out of D/B's performance of
the Project by any other contractor is made against D/B, by City, any other contractor, or
any other person, D/B shall promptly repair and/or resolve said claim at no cost to City.
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Section 20: Warranties and Guarantees
20.1 D/B warrants and guarantees to City that materials and equipment
incorporated into the Project will be new unless otherwise specified and that all work will be
in strict accordance with the Construction Documents and will not be defective. Prompt
notice of defects known to City shall be given to D/B. All Defective Work, whether or not in
place, may be rejected, corrected, or accepted as reasonably directed by City, provided
D/B shall not be entitled to an extension in Contract Time or increase in GMP because of
any delay or increase in cost attributable to the rejection, correction or acceptance of said
work. Defective work may be rejected even if approved by prior inspection.
20.2 The warranty period shall commence when the Certificate of Final Completion
is issued (irrespective of beneficial use by City prior to Final Completion) and extend one
(1) year after that date or whatever longer period may be prescribed by laws or regulations
or by the terms of any applicable special guarantee or specific provision of the Construction
Documents.
20.2.1 D/B is to provide any extra material for maintenance at the
completion of the Project, including items such as carpeting, base,
floor tile, ceiling tile, paint, and filters.
20.2.2 D/B is to provide City one (1) set of operating and maintenance data
manuals, fully bound and indexed, warranties, guarantees, and
bonds.
20.3 Correction of Defective Work - If within the designated warranty period, or
such longer period as may be required by laws or regulations, the Project or any part of the
Project, is discovered to contain defective work; D/B shall promptly, without any
reimbursement or adjustment in the GMP, and in accordance with City's written
instructions, either correct that defective work, or if it has been rejected by City remove it
from the Project and replace it with work which is not defective. If circumstances warrant it,
including but not limited to, in an emergency, City or D/B may have the defective work
corrected or the defective work removed and replaced. In that event, D/B shall not be
allowed to recover any associated costs, and D/B shall reimburse City for all direct, and
indirect costs of City, and City shall be entitled to an appropriate decrease in the GMP, to
withhold a setoff against amount recommended for payment, or make a claim on D/B's
bond if D/B has been paid in full.
20.4 With respect to all warranties, express or implied, from subcontractors,
manufacturers, or suppliers for Work performed and materials furnished under this
Agreement, the D/B shall:
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20.5.1 Obtain all warranties that would be given in normal commercial
practice and as required by the City;
20.5.2 Require all warranties to be executed, in writing, for the benefit of
City;
20.5.3 Enforce all warranties for the benefit of City, if directed by City;
20.5.4 In the event D/B's warranty under section 20.2 has expired, City may
bring suit at its expense to enforce a subcontractor's,
manufacturer's, or supplier's warranty;
20.5.5 D/B 'shall assign all subcontractor, supplier and manufacturer
warranties including mai.ntenance contracts from the installer for
specialized equipment, such as elevators, escalators, movable
partitions, equipment etc., to cover the limited warranty period to City
at the expiration of the one year warranty; and
Section 21: Use and Possession Prior to Completion
21.1 City shall have the right to take possession of or use any completed or
partially completed part of the Work if mutually agreed upon by the parties. Before taking
possession of or using any Work, City shall furnish D/B a list of items of Work remaining to
be performed or corrected on those portions of the Work that City intends to take
possession of or use. However, failure of City to list any item of Work shall not relieve D/B
of responsibility for complying with the terms of this Agreement. City's possession or use
shall not be deemed an acceptance of any Work under this Agreement, nor relieve the D/B
of any of its obligations under this Agreement.
21.2 While City has such possession or use, D/B shall be relieved of the
responsibility for the loss of or damage to the Work resulting from City's possession or use.
If prior possession or use by City delays the progress of the Work or causes additional
expense to D/B, an equitable adjustment shall be made in the GMP or the Contract Time,
and the Agreement shall be modified in writing accordingly.
Section 22: Personal Services and Non-Assiqnabilitv
22.1 This is a personal services Agreement and, therefore, D/B shall not alter the
key employees or Design Consultants nor assign or transfer, voluntarily or involuntarily, any
of its rights, duties or obligations under this Agreement except upon the prior written
consent of City. Any such change, assignment or transfer without the prior written consent
of the City shall be deemed null and void and constitute a material breach under this
Agreement.
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Section 23: Indemnification
23.1 To the fullest extent permitted by the law, D/B shall indemnify, defend, protect
and hold harmless City, its elected and appointed officers, agents, employees, consultants,
(collectively herein the "Indemnitees"), from and against all claims, demands, causes of
action, damages, injuries, liabilities, losses and expenses (including, without limitation,
reasonable attorneys' and consultants' fees and expenses) of any kind whatsoever, arising
in whole or in part out of or resulting from D/B's performance of this Agreement, D/B's
breach of this Agreement, or the alleged negligent acts or omissions of D/B, its architects,
engineers, other professionals and consultants, Contractors, suppliers or anyone directly or
indirectly employed by any of them or anyone for whose acts they may be liable. The
obligations of the D/B under this paragraph for errors or omissions, inçluding those of the
design professional subcontractors, which includes the Design Subcontractors, consultants,
agents and employees thereof ("Design Subcontractors"), which arise from (1) the'
preparation or approval of maps, drawings, opinions, reports, surveys, designs or
specifications, or (2) the giving of or the failure to give directions or instructions shall not be
limited to the amount of coverage provided for in the professional liability insurance policy.
If City is fully reimbursed by DB's insurance for any loss covered by this paragraph, D/B
shall have no further obligation for such loss.
23.2 D/B's obligation to indemnify under section 23.1 shall not extend to such
claims, demands, causes of action, damages, injuries, liabilities, losses and expenses, to
the extent that such is the result of the active negligence or the willful misconduct of an
Indemnitee. D/B's obligation to defend under section 23.1, if not covered by the insurance
to be provided on the Project, shall not extend to such claims, demands, causes of action,
damages, injuries, liabilities, losses and expenses, or causes of actions, to the extent that
such are caused by the active negligence or the willful misconduct of the Indemnitee, and
from no other cause.
23.3 The D/B agrees, notwithstanding the above to the fullest extent permitted by
law, to indemnify, defend, and hold harmless the City, its elected and appointed officers,
employees, agents and consultants from and against any and all claims, suits, demands,
liabilities, losses, or costs, including reasonable attorney's fees and defense costs, resulting
or accruing to any and all persons, firms, and any other legal entity, caused by, arising out
of or in any way connected with the detection, presence, handling, removal, abatement,
capping, subsequent migration of, or disposal of any asbestos or hazardous or toxic
substances, products or materials that exist on, about or adjacent to the jobsite, whether
liability arises under breach of contract or warranty, tort, including negligence, strict liability
or statutory liability or any other cause of action. D/B's obligation regarding asbestos or
hazardous or toxic substances, products or materials shall be limited to the proper removal
within the Project boundaries and the proper disposal of such materials.
Section 24: Riqht to Terminate and Suspend Work
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24.1 Archaeoloaical and Paleontoloaical Discoveries. If a discovery is made of an
archaeological or paleontological interest, D/B shall immediately cease operations in the
area of the discovery and shall not continue until ordered by City. When resumed,
operations within the area of the discovery shall be as directed by City.
24.1.1 Discoveries which may be encountered may include, but are not be
limited to, dwelling sites, stone implements or other artifacts, animal
bones, human bones, fossils or any item with cultural significance.
24.1.2 D/B shall be entitled to an extension of time and compensation in
accordance with the provisions of this Agreement.
24.2 Termination of Aareement by City for Cause. If, through any cause, D/B
shall fail to fulfill in a timely and proper manner D/B's obligations .under this Agreement, or
if D/B shall violate any of the covenants, agreements or stipulations of this Agreement, City
shall have the right to terminate this Agreement by giving written notice to D/B of such
termination and specifying the effective date thereof at least five (5) days before the
effective date of such termination. All finished or unfinished documents, data, studies,
drawings, maps, plans, specifications, reports and other materials prepared by D/B, or any
of its agents, Design Consultants or Subcontractors, shall, at the option of the City,
become the property of the City, and D/B shall be entitled to receive just and equitable
compensation for any work satisfactorily completed on such documents and other
materials up to the effective date of Notice of Termination, not to exceed amounts payable
hereunder, and less any damages caused by D/B's breach.
24.2.1 In the event the Agreement is terminated in accordance with this
Section, City may take possession of the Project and may
complete the Project by whatever method or means City may
select.
24.2.2 If the cost to complete the Project exceeds the balance, which
would have been due, D/B shall pay the excess amount to City.
24.2.3 Riahts of Citv Preserved. Where D/B's services have been so
terminated by City, the termination will not affect any rights or
remedies of City against D/B then existing or which may thereafter
accrue. Any retention or payment of moneys due D/B by City will
not release D/B from liability. It is agreed that termination
hereafter will not in any way release, waiver, or abridge any rights
the City has against D/B's performance bond surety.
24.2.4 Any dispute as to the amount due or owed to D/B upon termination
under this section shall be resolved in accordance with Section 33.
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24.3 Termination for Convenience bv Citv. City may terminate this Agreement at
any time and for any reason, by giving specific written notice to D/B of such termination and
specifying the effective date thereof, at least seven (7) days before the effective date of
such termination. In that event, all finished and unfinished documents and other materials
described hereinabove shall, at the option of the City, become City's sole and exclusive
property. If the Agreement is terminated by City as provided in this paragraph, D/B shall be
entitled to receive just and equitable compensation for any satisfactory Work completed to
the effective date of such termination. D/B hereby expressly waives any and all claims for
damages or compensation arising under this Agreement except as set forth herein.
24.3.1 Records and Documents Relatino to Termination. Unless otherwise
provided in the Agreement or by statute, D/B shall maintain all
records and documents relating to the terminated portion of this
Agreementfor three (3) years after final settlement. This includes all
books and other evidence bearing on D/B's costs and expenses
under this Agreement. D/B shall make these records and
documents available to City, at D/B's office, at all reasonable times,
without any direct charge. If approved by the City Manager,
photographs, electronic files, microphotographs, or other authentic
reproductions may be maintained instead of original records and
documents.
Section 25: Independent Contractor
25.1 D/B and any Design Consultant, Contractor, Subcontractor, agent or
employee of D/B, shall act as an independent contractor and not as an agent, officer or
employee of City. Except as expressly provided in this Agreement, City assumes no
liability for D/B's actions and performance; in particular, but without limitation, City assumes
no responsibility for paying any taxes, bonds, payments or other commitments, implied or
explicit, by or for D/B. D/B acknowledges that it is aware that because it is an independent
contractor, City is making no deductions from the fees for services being paid to D/B and
that City is not contributing to any fund on the behalf of D/B. D/B disclaims the right to any
type of additional fee or benefits.
Section 26: Independent Judoment
26.1 Unless otherwise directed in writing by City, D/B shall, in providing the
professional services required by this Agreement, arrive at conclusions with respect to the
rendition of information, advice and recommendations, independent of the control and
direction of City, other than normal contract monitoring; D/B, however, shall possess no
authority with respect to any City decision beyond rendition of such information, advice and
recommendations. D/B shall not have the authority to act as an agent on behalf of City
unless specifically authorized to do so by City in writing.
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Section 27:
Maintenance of Records and Accountinq
27.1 D/B shall maintain, during the Project and for a period ofthree (3) years after
completion of the Project, accurate and organized records of all costs of any type and all
services performed under this Agreement. City will have the right at any time, including
during the performance of all Phases of the Project to audit and copy all such records.
Section 28: Ownership of Documents
28.1 All reports, studies, information, data, statistics, forms, designs, plans,
procedures, systems and any other materials or properties produced under this Agreement
shall be the sole and exclusive property of City. No such materials or properties produced
in whole or in part under this Agreement shall be subject to private use, copyrights or
patent rights by Consultant in the United States or in any other country without the.express
written consent of City. City shall have unrestricted authority to publish, disclose (except as
may be limited by the provisions of the Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or
other materials or properties produced under this Agreement.
Section 29: Force Maieure
29.1 Any party to this Agreement may be excused for any delay or failure to
perform its duties and obligations under this Agreement, except for obligations to pay
money, but only to the extent that such failure or delay is caused by an Event of Force
Majeure as set forth in section 29.2. If an Event of Force Majeure set forth in section 29.2
causes a delay or failure in performance of only a portion of the obligations of a Party under
this Agreement, then only that portion of performance which was delayed or prevented by
such cause shall be deemed excused, and the performance of all other obligations of a
Party not so delayed shall not be excused by an Event of Force Majeure. Delay or failure
in performance of all other obligations of a Party not so delayed shall not be excused by
such Event of Force Majeure. Delay or failure in performance by a Party which is the result
of an Event of Force Majeure set forth in section 29.2 shall be deemed excused for a period
no longer than the delay or failure in performance caused by such Event.
29.2 An Event of Force Majeure means an occurrence beyond the control and
without the fault or negligence of a Party, including but not limited to unusually severe
weather, flood, earthquake, fire, lightning, and other natural catastrophes, acts of God or
the public enemy, war, terrorist act, riot, insurrection, civil disturbance or disobedience,
strike or labor dispute for which D/B is not responsible, expropriation or confiscation of
facilities, changes of applicable law, or sabotage of facilities, so long as such Party makes
good faith and reasonable efforts to remedy the delays or failures in performance caused
thereby. However, D/B, in developing the GMP and Project Schedule, has incorporated
three (3) days for anticipated adverse weather days that may disrupt work on the Project;
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D/B shall be entitled to relief under this Section for adverse weather only to the extent
adverse weather days exceed this amount of days.
29.3 A Party shall give written notice to the other Party as soon after becoming
aware of the delay or failure in performance caused by an Event of Force Majeure as is
reasonably possible, but in any event within five (5) working days after Party becomes
aware of such delay or failure.
29.4 No Event of Force Majeure shall be a basis for monetary adjustment to the
GMP. Costs incurred by the D/B as a result of a Force Majeure Event will be reimbursed
according to the terms of this Agreement from the Contingency Fund.
Section 30: Hazardous Materials
30.1 In the event the D/B or any other party encounters asbestos or hazardous or
toxic materials at the Project Site, or should it become known in any way that such
materials may be present at the Project Site or any adjacent areas that may affect the
performance of the D/B's services, the D/B may, at his or her option and without liability for
consequential or any other damages, suspend performance of services on the Project until
the City retains appropriate specialist consultant(s) or contractor(s) to identify, abate and/or
remove the hazardous or toxic materials, and warrant that the Project Site is in full
compliance with applicable laws and regulations.
Section 31: Disputes
31.1 All claims, counterclaims, disputes, and other matters in question arising
under, or relating to, the Agreement or the breach thereof shall be processed in accordance
with the provisions of this Section, unless specifically addressed by another provision of
this Agreement.
31.2 D/B shall submit its written request for a Change Order to City pursuant to
Section 13. City shall make a determination on D/B's request in writing within 7 days of
receipt of request and all supporting data. Said Change Order shall be made in good faith
and accurately reflect the adjustment in GMP or Contract Time for which D/B believes City
is liable, and covers all costs and delays to which D/B believes it is entitled as a result of
the occurrence of the claimed event. All requests for adjustment in Contract Time shall
include an analysis of the Master Construction Schedule and the impact of the claimed
work on specific activities on the Master Construction Schedule.
31.3 If D/B disagrees with City's determination, D/B shall file a claim in writing in
accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal
Code, as same may from time to time be amended, the provisions of which are
incorporated by this reference as iffully set forth herein, and such policies and procedures
used by the City in the implementation of the same.
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31.4 Pending final resolution of any claim, including litigation, D/B shall proceed
diligently with performance of the Project, and comply with any direction of City.
Section 32: Notices
32.1 All notices, demands or other communications hereunder shall be given or
made in writing and shall be delivered personally or sent by courier or registered or certified
mail, return receipt requested, postage prepaid, addressed to the Party to whom they are
directed at the following addresses, or at such other addresses as may be designated by
notice from such Party:
(i) To CITY:
City Attorney
276 Fourth Avenue
Chula Vista, CA 91910
Tel: (619) 691-5037
Fax: (619) 409-5823
Building and Park Construction
1800 Maxwell Road
Chula Vista, CA 91911
Tel: (619) 397-6070
Fax: 619)397-6250
(ii) To D/B:
Erickson-Hall, Construction Company
500 Corporate Drive
Escondido, CA 92029
Tel: (760) 796-7700
Fax: (760) 796-7750
Any notice, demand or other communication given or made solely by mail in the
manner prescribed in this Section shall be deemed to have been given and to be effective
three (3) days after the date of such mailing; provided, however, thal'any notice, demand or
other communication which would otherwise be deemed to have been given on a day
which is not a working day shall be deemed to have been given on the next subsequent
working day.
Section 33: Miscellaneous Terms
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33.1 Representations: Each Party hereto declares and represents that in
entering into this Agreement it has relied and is relying solely upon its own judgment, belief
and knowledge ofthe nature, extent, effect and consequence relating thereto. Each Party
further declares and represents that this Agreement is being made without reliance upon
any statement or representation of any other Party not contained herein, or any
representative, agent or attorney of any other Party.
33.2 Severabilitv: If any term or condition of this Agreement is held to any extent
to be invalid or unenforceable, all the remaining terms and conditions shall be enforceable
to the fullest extent permitted by law.
33.3 Entire Aqreement: This Agreement contains the entire agreement, between
the Parties and supersedes all prior negotiations, discussions, obligations and rights of the
Parties in respect of each other regarding the subject matter of this Agreement. There is
no other written or oral understanding between the Parties. No modification, amendment or
alteration of this Agreement shall be valid unless it is in writing and signed by the Parties
hereto.
33.4 Draftinq Ambiquities: The Parties agree that they are aware that they have
the right to be advised by counsel with respect to the negotiations, terms and conditions of
this Agreement, and that the decision of whether or not to seek the advice of counsel with
respect to this Agreement is a decision which is the sole responsibility of each of the
Parties hereto. This Agreement shall not be construed in favor of or against either Party by
reason of the extent to which each Party participated in the drafting of the Agreement.
33.5 Applicable Law: The formation, interpretation and performance of this
Agreement shall be governed by the laws of the State of California. Venue for mediation,
arbitration and/or actions arising out of this Agreement shall be in the City of Chula Vista,
California.
33.6 Waiver: Unless otherwise expressly provided herein, no delay or omission
by the Parties hereto in exercising any right or remedy provided for herein shall constitute a
waiver of such right or remedy, nor shall it be construed as a bar to or a waiver of any such
right or remedy on any future occasion.
33.7 Effect of Headinqs: Headings appearing in this Agreement are inserted for
convenience of reference only, and shall in no way be construed to be interpretations of the
provisions hereof.
33.8 Amendments: This Agreement may be modified, amended or supplemented
only by the mutual written agreement of the Parties hereto.
33.9 Authorization and Compliance: Each Party represents that it is duly
authorized to execute and carry out the provisions of this Agreement.
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33.10 Further Assurances: The Parties agree to do such further acts and things
and execute and deliver such additional agreements and instruments as the other may
reasonably require to consummate, evidence or confirm the agreements contained herein
in the manner contemplated hereby.
33.11 Counterparts: This Agreement may be executed by the Parties in one or
more counterparts, all of which taken together shall constitute one and the same
instrument. The facsimile signatures of the Parties shall be deemed to constitute original
signatures, and facsimile copies hereof shall be deemed to constitute duplicate original
counterparts.
33.12 Exhibits and Glossarv of Terms: All Exhibits and Glossary of Terms are
incorporated herein by reference into this Agreement.
33.13 Third Party Beneficiarv: Nothing within this Agreement shall create a
contractual relationship between the City and any third party.
[NEXT PAGE IS SIGNATURE PAGE]
35
J:\BPC\8PC Administraüon\Design Build Agreements\#2 Design Build Agmt 10-11-02 Revised.doc
SIGNATURE PAGE TO
DESIGN/BUILD AGREEMENT
CITY OF CHULA VISTA
ERICKSON-HALL
CONSTRUCTION COMPANY
By:
Shirley Horton, Mayor
By:
ATTEST:
Susan Bigelow, City Clerk
Approved as to form by
John M. Kaheny, City Attorney
36
J:\BPC\BPC Administration\Design Build Agreements\#2 Design Build Agmt 10·11-02 Revised.doc
10/31/2002 10:53
760796 7750
ERICKSON_HALL CONST
PAGE 02
SIGNATURE PAGE TO
DESIGN/BUILD AGREEMENT
CITY OF CHULA VISTA
ERICKSON-HALL
CONSTRUCTION COMPANY
By:
Shirley Horton, Mayor
By:
--{\~~~
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~~ )~1~~~1'~~~~~~:~~
ATTEST:
Michul F. Hall
Chief OperatIng Officer
Elìr.J<¡;wHiaU Ccns1ruction eo.
Susan Bigelow, City Clerk
Approved as to form by
John M. Kaheny, City Attorney
36
G:IProJect MgmWroJect File.\2220 CV Flra Station 2IContract.\OWner\#2 Design Build Agmt 10.11.02 Revised.doc
COUNCIL AGENDA STATEMENT
Item:
Meeting Date: 11/5/02
ITEM TITLE: Resolution Amending the FY03 Recreation Department
budget by appropriating $28,453 from the Available Fund Balance
of the General Fund for the purchase of an upgraded class, activity,
and facility registrationT~em for use by the Recreation and
Public Works Dep~rt~
SUBMITTED BY: Director of Recreatio~ Director of Public Works ).;)
Director of Management & Information Services
REVIEWED BY: City Manager ,,~) (4/Sths Vote: Yes X No )
The Recreation Department and Public Works Department are currently utilizing a
computerized class, activity, and facility registration program that has been in use for
more than 10 years. An appropriation of funds is requested in order to upgrade the
software to a faster and more efficient system that will enhance customer service, allow
participants to register for classes and activities online, and reduce staff time due to
increased efficiency.
RECOMMENDATION: That Council adopt the resolution amending the FY03
Recreation Department budget by appropriating $28,453 from the Available Fund
Balance of the General Fund for the purchase of an upgraded class, activity, and facility
registration system.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The Recreation Department and the Parks Operation section of the Public Works
Department are currently utilizing a computerized class, activity and facility registration
system, RecWare Pro. The Recreation Department utilizes the system to register
individuals for all classes and activities, and to manage the rentals and community use of
the vast majority of the City's recreational facilities. The Parks Operations section
utilizes the system to manage the rental of picnic shelters and special park use permits.
The system has been in use for a number of years, and the company has provided
excellent support services and system amendments on a routine basis. Although the
company has been continuing to provide service, they have concurrently been developing
and marketing an upgraded system, RecWare SAFARI, that is more user friendly, more
efficient, and will allow participants to register for classes and activities on line, paying
fees with credit cards, as well as registering by mail or in person. Currently, registration
is done only by mail or in person.
Page 2, Item: ~
Meeting Date: 11/05/02
This online registration portion of the new system will greatly enhance customer service,
while reducing the amount of time spent by City staff. By making classes and activities
available via the Internet, the Departments can reduce the staff workload and paperwork
involved in processing mail and in-person registrations and potentially increase revenues
through increased registration. With functionality integrated into a single, flexible
application, all capabilities and functions can be accessed from a single computer screen.
Staff can get to the function area easily, quickly and in fewer steps. Participants also pay
online, saving additional staff time. For the community, online registration makes
signing up for classes and activities fast, and convenient.
Access to Internet registration is provided to participants by a third party, Active.com,
which provides credit card verification and validation service, as well as accounting
reports of transaction and financial activity. This access is accomplished through a link
from the City Website. There is automated upload/download capability between
RecWare SAFARI and Active.com web servers and full data integration of Intemet
enrollments onto RecWare SAFARI rosters. Internet registration convenience service
fees are not borne by the City; Active.com charges participants 6.5% plus .50 per
transaction amount for online registration services. Active.com is a component of the
Active Network, the vendor currently providing the existing system and a leading
provider of technology and marketing systems in the sports and recreation industry.
The SAFARI system (the upgraded version of the registration/facility system) is currently
being used by a number of municipalities, including the Cities of Newport Beach and
Santa Clar/ta. Industry wide, depending upon both the degree and quality of marketing as
well as the demographics of the area involved (number of potential participants with
computer and Intemet access), the percentage of registrations taken online when first
introduced ranges from 10-15% up to 40-50%. In Newport Beach, 40% of all
registrations were processed online when the online program was initiated, with this
figure growing closer to 50% during the most recent registration period there. Santa
Clarita reported over $38,000 realized via online registration during the initial online
registration availability in that city.
The new program is also capable of generating a number of reports and statistical
information, which will include market information on the population base of users.
Options for sorting this information in numerous ways will provide reports and
information that will be helpful in marketing and promoting activities, as well as
providing information required to address International City/County Management
Association (ICMA) based performance measures.
In addition to online registration and the fairly basic functions of class and activity
registrations and facility management, the upgraded system has the potential to further
enhance customer service; the system can produce photo id cards, bar code passes, assist
with league scheduling (a benefit for the Youth and Adult Sports programs) and
accommodate "point of sale" (POS) transactions such as swimming pool admissions.
This POS capability allows the user to be in the middle of a transaction, such as an
enrollment into an activity and simultaneously process a drop-in without leaving the
Page 3, Item: ,~ ~,
Meeting Date: 11/05/02
enrollment transaction. The POS transaction can be processed on-screen or via an
external keypad. No other product in the industry has this capability. SAFARI also has
the capability to e-mail receipts and publicity materials to participants, thereby
dramatically increasing marketing and notification options. This feature will be utilized
to send reminders, notices on upcoming programs and activities, surveys and general
information to past, present and future participants at no additional cost to the
Departments.
An additional advantage of upgrading to the SAFARI system is a substantial discount in
the purchase price of the system. Since the City is currently using the selected vendor's
product and service, there is an $11,945 customer discount, available only through
December 31, 2002, which represents a 34% savings. The $28,453 total price includes
all software, installation and training for both full-time and part-time staff, in addition to
one year of software maintenance and support.
Even though this proposal is for the upgrade of an existing system, the Departments
invited another top registration vendor for comparison purposes. Both vendors provided
on site presentations and demonstrations for staff from Recreation and Public Works.
RecWare was selected based on technology, price, user-friendliness, (which converts
directly to customer service) and their ability to manage on-line credit card transactions
through a third-party vendor. CLASS, the other software program considered, is a
modular based product that offers less functionality and does not have the capability to
handle third party online registration. In addition, the price of CLASS, $58,625, far
exceeds the price of RecWare SAFARI.
FISCAL IMPACT: The initial investment to the City is $28,453, which includes one
year of software maintenance and support. Staff recommends appropriating funds from
the Available Balance of the General Fund for this purpose. After the first year, an
increase of $2,000 over existing budgeted maintenance and support costs (from $2,200 to
$4,200) will be borne by the General Fund. Although staff costs directly related to
processing registrations and reservations at the current time should be reduced as
participants utilize the online registration option, exact Costs are unknown, and may be
difficult to determine until the system has been operating for 8-12 months. Staff will also
track revenue associated with any increase of total registration following the inception of
online registration.
RESOLUTION NO. 2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE FY03 RECREATION
DEPARTMENT BUDGET BY APPROPRIATiNG $28,453 FROM
THE AVAILABLE FUND BALANCE OF THE GENERAL FUND
FOR THE PURCHASE OF AN UPGRADED CLASS, ACTIVITY,
AND FACILITY REGISTRATION SYSTEM FOR USE BY THE
RECREATION AND PUBLIC WORKS DEPARTMENTS
WHEREAS, the Recreation and Public Works Departments are currently utilizing a
computerized class, activity, and facility registration program that has been in use for more than 10
years; and
WHEREAS, an appropriation of funds is requested in order to upgrade the software
to a faster and more efficient system that will enhance customer services, allow participants to
register for classes and activities online, and reduce staff time due to increased efficiency; and
WHEREAS, the initial investment to the City is $28,453, which includes one year
of software maintenance and support and staff recommends appropriating Residential Construction
Tax (RCT) funds for this purpose.
NOW, THEREFORE, BE 1T RESOLVED that the City Council of City of Chun
Vista does hereby amend the FY03 Recreation Department budget by appropriating $28,453 from
the available fund balance of the General Fund for the purchase of an upgraded class, activity, and
facility registration system for use by the Recreation and Public Works Departments.
Presented by Approved as to form by
Buck Martin John M. Kaheny
Director of Recreation City Attorney
COUNCIL AGENDA STATEMENT
Item: [~
Meeting Date: 11/5/02
(4~5 VOTE: X~YES _NO)
ITEM TITLE: RESOLUTION APPROVING ONE INTEL
ANALYST AND AMENDING THE FY 02-03 BUDGET FOR
SALARY, BENEFITS AND RELATED EXPENSES AND
APPROPRIATING UNANTICIPATED REVENUES FROM
THE CHULA VISTA ELEMENTARY SCHOOL DISTRICT
THEREFORE.
SUBMITTED BY: Chief of Polic~--'~'''''
REVIEWED BY: City Manager ~"-~
In March 2002, the Police Department and the Chula Vista Elementary School
District applied for funding for a School Community Policing Partnership Program
(SCPP) to address bullying in three elementary schools. In June of 2002 the
Police Department and School District were notified by the California Department
of Education that the application was approved. The grant award is for the
amount of $325,000, of which $122,036 will pay for a project coordinator/school
crime analyst who will oversee the implementation of the bullying program and
$7,700 to pay for expenses incurred for supplies required to implement the
project.
RECOMMENDATION: That Council adopt the resolution amending the FY 02-
03 Budget to add an Intel Analyst to the Police Department, to be funded by
appropriating unanticipated revenues from the Chula Vista Elementary School
District awarded through the SCPP grant, and additional funding through LLEBG,
which has been secured by the Police Department.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
BACKGROUND: Established in 1998, the SCPP is a competitive grant program
offered by the California Department of Education's School Law Enforcement
Partnership. The program provides funds to school districts and county offices of
education that work with a law enforcement partner to implement a school
community policing approach to deal with school crime and safety issues. The
program disburses grants of up to $325,000 to applicants who form a
collaborative partnership involving schools, law enforcement, students, parents,
and the community to address a safety issue within their schools. Only 16
percent of the applicants to the 2001-2002 program received funding, so Chula
Vista is fortunate to receive such a highly competitive grant. The grant recipient
is the Chula Vista Elementary School District; funding to partner agencies will be
disbursed through the Elementary School, who will act as the fiscal agent.
DISCUSSION: National research tells us that bullying is widespread in schools
and may be the most underreported safety problem on American school
campuses. According to studies in the United States and around the world,
between 10 and 30 percent of students are either bullies or victims, while chronic
victims of bullying - those bullied once a week or more - generally constitute
between 8 and 20 percent of the student population.
The Police Department has worked closely with the School District to develop a
3-year plan to address the bullying problem in three schools: Harborside
Elementary, Otay Elementary and Vista Square Elementary. These schools
were selected based on an assessment of crime data reported to the State of
California. The need for the SCPP program is also evidenced by the results of a
survey of all Chula Vista elementary school students. When asked the question,
"In the past school year (2000) have you been harassed by a student in school,"
44.9% said yes. In addition, 30% of students indicated that they had been in a
fight at school. Without intervention, bullies are much more likely to develop a
criminal record than their peers. This demonstrates the need for a program such
as SCPP and the involvement of the Police Department.
Under the project, a multi-disciplinary team comprised of school staff, social
service providers, police, parents, students and researchers will systematically
analyze the underlying causes and facilitators of bullying in these schools. The
team will jointly develop tailor-made responses designed to reduce the level of
victimization and harms associated with this problem. Currently, the Police
Department is donating the time of staff members for the coordination of the
project. The proposed staff addition is an Intel Analyst, who will be responsible
for SCPP program implementation and coordination during the three-year
program. Specifically, the analyst would coordinate training delivery with school
staff, coordinate the development of the necessary bullying data collection
instruments, oversee the administration of data collection instruments, tabulate,
analyze, and map the data. The analyst would also collect and review relevant
literature on bullying and work with evaluators to assess the impact of the project.
The Police Department will review the position in FY 04-05 and determine if
further funding can be secured to expand the scope of the project to include
additional schools within the School District. Success of the SCPP program in
Chula Vista's elementary schools could lead to opportunities for the program to
be recognized and implemented in school districts across the State of California.
FISCAL IMPACT: There will be no fiscal impact to the City of Chula Vista. The
total cost of the position for the three years is $166,679, of which $122,036 will
be funded by the SCPP grant. Staff recommends using LLEBG to fund the gap
of $44,643 in order to have no fiscal impact to the City's general fund. The Chula
Vista Elementary School district will receive the SCPP grant funds and act as the
fiscal agent, dispersing $129,736 to the City. The following table exhibits how
grant funds will be distributed over the course of the 3~year program for the
analyst position.
Analyst Salary $ 23,389 $ 51,896 $ 56,181
Benefits $ 6,568 $ 14,024 $ 14,621
Total Expense $ 29,957 $ 65,920 $ 70,802
SCPP Grant Funds $ $ 51,234 $ 70,802
LLEBG Funds $ 29,957 $ 14,686 $
Net Impact to General Fund $ $ $
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING ONE INTEL ANALYST AND AMENDING THE
FY 02-03 BUDGET FOR SALARY, BENEFITS AND RELATED
EXPENSES AND APPROPRIATING UNANTICIPATED
REVENUES FROM THE CHULA VISTA ELEMENTARY SCHOOL
DISTRICT
WHEREAS, the Chula Vista Elementary School District, in partnership
with the Chula Vista Police Department and the Chula Vista Coordinating
Council, recently received the School Community Policing Partnership grant from
the State of California Department education in the amount of $325,000 to
address bullying in the schools; and,
WHEREAS, the grant provides funding for an additional Intel Analyst to
serve as the project coordinator, who will be responsible for implementation and
coordination during the three year program; and,
WHEREAS, a multi-disciplinary team comprised of school staff, social
service providers, police, parents, students and researchers will systematically
analyze and respond to the underlying causes and facilitators of bullying in these
schools; and,
WHEREAS, the City of Chula Vista will appropriate $129,736 in
unanticipated revenues, $122,036 for the salary and benefits of the Intel Analyst
and $7,700 project related expenses, from the Chula Vista Elementary School
District, who will be acting as the fiscal agent; and,
NOW, THEREFORE BE IT RESOLVED, that the City Council of the City
of Chula Vista does hereby approve one Intel Analyst and amend the FY 02-03
budget for salary, benefits, and related expenses and appropriating unanticipated
revenues from the Chula Vista Elementary School District.
Presented by: Approved as to form by:
Richard P. Emerson John M. I~a'h"~n~
Police Chief City Attorney
COUNCIL AGENDA STATEMENT
Item: I'~
Meeting Date: 11/05/02
ITEM TITLE: PUBLIC HEARING: TO NOTICE ACCEPTANCE AND
APPROPRIATION OF LOCAL LAW ENFORCEMENT
BLOCK GRANT FUNDS.
RESOLUTION ACCEPTING $212,310 FROM THE
2002 LOCAL LAW ENFORCEMENT BLOCK GRANT AND
AMENDING THE FY 02-03 POLICE BUDGET AND
APPROPRIATING $49,580 FOR POLICE TECHNOLOGY,
$33,968 FOR CRIME LAB EQUIPMENT, $36,300 FOR
OFFICER SAFETY EQUIPMENT, $50,000 TO SUPPORT
THE SCHOOL COMMUNITY POLICING PARTNERSHIP,
AND $42,462 TO SUPPORT THE SOUTH BAY DRUG
COURT AND AUTHORIZING THE CHIEF OF POLICE TO
UTILIZE (REPROGRAM) SAVINGS RESULTING FROM
THE COMPETITIVE PROCUREMENT PROCESS FOR
ADDITIONAL UNSPECIFIED OFFICER SAFETY
EQUIPMENT AND SUPPLIES.
SUBMITTED BY: Chief of Polic~/~r
REVIEWED BY: City Manager~ (4/5ths Vote: Yes X No__)
The Police Department has recently received notice of a Local Law Enforcement
Block Grant (LLEBG) award in the amount of $212,310 from the Bureau of
Justice Assistance (BJA). These funds were allocated to the Police Department
based on a three-year average of Part I Violent Crimes. Part I Violent Crimes are
murder and non-negligent manslaughters, forcible rape, robbery, and aggravated
assaults as reported by the FBI. Acceptance and appropriation of these funds
requires a public hearing per stipulations of the Local Law Enforcement Block
Grant.
RECOMMENDATION:
That the City Council accept the $212,310 in Local Law Enforcement Block Grant
funds and amend the FY 00-01 Police budget as follows:
· Appropriate $49,580 from the Local Law Enforcement Block Grant funds
for police technology.
· Appropriate $33,966 from the Local Law Enforcement Block Grant funds
for Crime Lab equipment.
Page 2, Item ~ ~
Meeting Date: 11/05/02
· Appropriate $36,300 from the Local Law Enforcement Block Grant funds
for officer safety equipment
· Appropriate $50,000 from the Local Law Enforcement Block Grant funds
to support the School Community Policing Partnership.
· Appropriate $42,462 from the Local Law Enforcement Block Grant to
support the South Bay Drug Court.
BOARDS/COMMISSIONS RECOMMENDATIONS:
The Local Law Enforcement Block Grant requires a local Advisory Board
approval of the use of funds prior to disbursement. A local Advisory Board
consisting of the specific composition required by the grant was set up to review
the grant application. The local Advisory Board recommends approval of the
Local Law Enforcement Block Grant disbursements as proposed. The local
Advisory Board is comprised of listed representatives from the following
agencies:
Local Law Enforcement Agency Richard P. Emerson
Prosecutor's Office Kerry Wells
Court System Judge Jesus Rodriguez
School System Dennis Doyle
Non Profit Agency Kathy Lembo
BACKGROUND:
The Fiscal Year 1997 Appropriation Act Public Law 104-208 provides for funding
under the Local Law Enforcement Block Grant program, established within the
Bureau of Justice Assistance (BJA), to local law enforcement agencies. The City
of Chula Vista is eligible to receive an award of $212,310 under this program.
Funding may be used in seven purpose areas, which address a wide variety of
activities from increasing personnel and equipment resources for law
enforcement to developing and supporting programs to enhance effective
criminal justice processes. The program's goal is to provide local jurisdictions
with opportunities to reduce crime and improve public safety through the
implementation of diverse strategy, hiring of additional local law enforcement
officers, payment of overtime, procurement of equipment and support of drug
courts.
GRANTS REQUIREMENTS:
The $212,310 grant allocation has a local match requirement of $23,590. The
one-time local match requirement will be met with State COPS Program funding.
These funds will be used for equipment for the Crime Lab. The LLEBG funds
must supplement and not supplant the existing Police budget. The funds must
be used to reduce crime and improve public safety through activities such as
Page 3, Item ,/~
Meeting Date:~/02
hiring of new officers and support staff as well as procuring equipment, and
technological advances directly associated with local law enforcement.
DISCUSSION:
The Police Department and advisory board recommend use of the funds for the
implementation of the following projects: technology improvements,
enhancements to the Crime Lab, police related equipment, support for the
School Community Policing Partnership as well as to provide support to the
South Bay Drug Court. The following is a summary of the proposed
expend itu res:
Technology - $49,580
Staff is recommending using LLEBG funds to make technological improvements
throughout the Department. The continued development of a technology
infrastructure to support the Department's growth will increase employee
productivity and ensure timely information.
To this end the Department is proposing the purchase of software licenses to
equip each of the patrol vehicles with Microsoft Word; the program will be
installed in all of the mobile data computers. The addition of this software would
allow sworn patrol personnel to write police reports in the field.
Additionally, staff recommends the purchase of web-based survey software that
would enhance crime-reporting options, as well as enable the Police Department
to collect information from the public on a variety of topics via the Internet. Web-
based survey software would allow us to:
· Implement an on-line crime reporting system for incidents where there is
no suspect, or the victim only needs a police report for insurance
purposes. Potential crime reports that could be taken on-line include:
Lost property (cell phones, etc.) 2,254
Petty theft (skateboard, etc.) 1,747
Vandalism report 1,476
Auto burglary 1,145
Found property 823
Total 7,445 (about 10% of all CFS)
Page 4, Item ? ~/
Meeting Date: 11/05/02
Residents would appreciate the increased convenience of reporting crime
through the Internet at the time and place that's best for them. Not all
callers would be able or want to file incident reports on-line, but if 20%-
30% took advantage of this option it would result in saving staff time -
primarily CSO, dispatch and Business Office personnel hours. See
attached San Jose Police Department for an example of an on-line crime
report currently in use.
· Receive citizen complaints, commendations, questions, and inquiries on-
line
· Collect information on customer and/or victim satisfaction on-line - for
those with e-mail addresses
· Conduct web-based employee surveys
· Reduce time spent cleaning and preparing contact card data for analysis.
The data entry portion of the web-based survey program formats data so
it's immediately available for analysis in the SPSS base statistical
program, which staff currently uses.
Further, the presence of Spanish-speaking police employees is sometimes
required to take reports, which can result in delays and complicate the reporting
process for Spanish speaking victims. The SPSS web-based software can build
incident report forms using Spanish characters, which would allow Spanish-only
speakers to read and complete a form themselves if they desired. A Spanish-
version report form could be made available on-line; in addition, a terminal could
be placed in the front lobby, so that walk-in reports could be filed on-line in either
Spanish or English.
Crime Lab - $33,968
Staff is recommending the purchase of equipment that will enable the Crime Lab
to implement new technology and enhance current systems. The proposed
equipment will add significantly to the Crime Laboratory's ability to keep pace
with rapidly changing technology in the area of forensics and crime scene
investigation. Crime scene and evidence documentation is moving in dynamic
fashion toward digital imaging; much of the equipment being requested will give
the lab a significant boost in that direction.
Digital imaging at major crime scenes will result in immediate feedback regarding
the quality of the captured images and will give our forensic photographers a
chance to evaluate their photographs before they leave crime scenes - this is
key as it is unlikely they will have the opportunity to return to the scene if the
images taken turn out to be less than satisfactory.
Also included in this project is AFFIX Tracker, a computer software program that
will enable our laboratory to identify criminals using both fingerprints and palm
Page 5, Item ~ '7
Meeting Date: 11/05/02
prints. At this time we can only use our computer databases to identify suspect
fingerprints - not palm prints. Since many times we recover palm prints at crime
scenes and no useable fingerprints, the AFFIX Tracker will be a major boon
toward identifying even more perpetrators of crime in our city.
Equipment- $36,300
The Department is proposing using $53,010 in LLEBG funds for the purchase of
police equipment. Included in this project are in-car camera's. Currently there
are eleven patrol vehicles equipped with these cameras. In-car cameras are
beneficial to the department in that they can reduce the number of complaints,
document field sobriety tests during DUI stops and record pursuits.
School Community Policing Partnership - $50,000
Earlier this year the Chula Vista Elementary School District received funding for a
School Community Policing Partnership Program (SCPP) to address bullying in
three elementary schools. The grant award is for the amount of $325,000, of
which $122,036 will pay for a proiect coordinator/school crime analyst who will
oversee the implementation of the bullying program. The Police Department will
hire this analyst position with an estimated cost of $166,679 over the next three
years. Staff is recommending the use of LLEBG funding to cover the additional
$44,643 need to make up the difference between the SCPP funding and the
actual cost of the position. The additional $5,357 is to mitigate unforeseen
personnel costs associated with this position.
Drug Court - $42,462
Staff is recommending the appropriation of $42,462 for the purpose of supporting
the South Bay Drug Court. This program provides intense follow-up monitoring
and assistance to those who qualify for other than standard incarceration. The
program exists throughout the County and has now been implemented in the
South Bay.
FISCAL IMPACT:
It is anticipated that all LLEBG funds will be expended on one-time purchases in
the current fiscal year, with the exception of the School Community Policing
program that will span over the next two fiscal years. A one-time allocation of
$42,462 will be used to support the South Bay Drug Court. The one-time local
match requirement of $23,590 will be met through State COPS 2002 funding.
This will result in no net impact to the General Fund.
Page 1 o£ 2
ATTACHMENT
SAN JOSE
If you are reporting an emergency please dial 9-1-1
Please read all instructions before you file your on-line report
On-Une Reporting Instructions
Before you be§in your report, if you would please spend time reading the following:
- You may only report incidents that have OCCURRED IN THE CITY OF SAN JOSE. If th,
incident you are reporting occurred in another jurisdiction, please contact the appropriate
police or sheriff's department. It is required that you have an address or a cross street for
location of the incident you are reporting in the City of San 3ose.
-. You cannot use this form to report traffic accidents, hit and runs and any other traffic
related accidents. If you exchanged information and left the scene of an accident and still
need a report taken, you must come in person to the police department.
- You cannot use this form iF YOU HAVE SUSPECT INFORMATION. You must call yo
report into a dispatcher or come in person to the police department.
- You can use this form to only report the following incident types:
· Auto Burglary - Someone broke into your locked car and took items from within. B
your car was left unlocked, it is considered a theft.
· Theft - The unlawful taking of the personal property of another.
· WI(D()N()I \C('I(I'I'(}NI.IN~(RI F(IRI'5, OF \NY FINAN('I%I.(RIME: FRAUD.
I:N \UTI ll)I~IZI,;I) [ SI, Ill,{ RU}II C \ RD~., I"()R(;I';ICY, ANn II)I,;NTIT',' TIIEI"T:
· Vandalism - Malicious mischief or damage done to your property excluding
vehictes~ * ' *To report gang graffiti, please diat 3-1-1 officer response is
required for this type of graffiti.
· Vehicle Tampering - Damaging, defacing, or removing any parts of a vehicle, i.e. car
window is smashed; car was keyed.
· Harassing Phone Calls - Immediate hang-ups, obscene language, threats (with no
http://www.sjpd.org/CrimeRpt4/Instructions.htm /7-~ ~, 10/22/02
Sa. Jos6 Police online reporting ~'age 2 of 2
suspect information)
· Lost/Stolen Property - Property that is lost or stolen, with no suspect information i.e.
wallets or purses. For lost or stolen license plates you must call 311 or come to the
police department to file a report.
IiF YOU ARE REPORTING A LOST OR STOLEN CELLULAR TELEPHONE: We dO not
accept 'lost' cellular telephone reports. Call your cellular telephone provider and advise the~
that you 'lost' your telephone.
Our on-line reporting website does not have the ability to screen your repo~
to make sure they fit into the above criteria. If your report does not fit the
above listed criteria it will be rejected when it is reviewed by police person~
and a reason why will be e-mailed to you. This will cause you significant
delay in the reporting of the crime. Upon completing your or, line report, yo~
will receive a case number in the mail within 10 working days. If you need helF
in determining what type of crime you are trying to report, then you may call (408) 277-
8900 and speak with a dispatcher seven days a week, 24 hours a day. If you need to come
to the police department or prefer to make a report with a police officer, then you may corr
to the police department at 201 W. Mission Street, open seven days a week from 6:00 A.M.
to Midnight. If you are requesting information on an existing report or need copies, you will
need to call records at (408) 277-4460 or 277-4143.
Please click on 'REPORT' after you have read the instructions.
REPORT
http://www.sjpd.org/CrimeRpt4/lnstructions.htrn / 7- 7 10122102
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA ACCEPTING $212,310 FROM THE 2002 LOCAL LAW
ENFORCEMENT BLOCK GRANT AND AMENDING THE FY 02-03
POLICE BUDGET AND APPROPRIATING $49,580 FOR POLICE
TECHNOLOGY, $33,968 FOR CRIME LAB EQUIPMENT, $36,300 FOR
OFFICER SAFETY EQUIPMENT, $50,000 TO SUPPORT THE SCHOOL
COMMUNITY POLICING PARTNERSHIP, AND $42,462 TO SUPPORT
THE SOUTH BAY DRUG COURT AND AUTHORIZING THE CHIEF OF
POLICE TO UTILIZE (REPROGRAM) SAVINGS RESULTING FROM
THE COMPETITIVE PROCUREMENT PROCESS FOR ADDITIONAL
UNSPECIFIED OFFICER SAFETY EQUIPMENT AND SUPPLIES.
WHEREAS, the Fiscal Year 2000-01 Federal budget appropriates $212,310 to
the City of Chula Vista Police Department from the Local Law Enforcement Block Grant
fund; and,
WHEREAS, these funds were appropriated based on a three-year average Part I
violent crimes for purposes stipulated by the Local Law Enforcement Block Grant
program; and,
WHEREAS, the City Council held a public hearing on November 5, 2002 to
notice use of the LLEBG funding in the amount of $49,580 for police technology,
$33,968 for crime lab equipment, $36,300 for officer safety equipment, $50,000 to
support the School Community Policing Partnership, and $42,462 to support the South
Bay Drug Court; and,
WHEREAS, the Fiscal Year 2002-03 Police budget will be amended to add
$169,848 for equipment and personnel; and $42,462 for the South Bay Drug Court; and,
WHEREAS, the $23,590 local cash match requirement will be met from the State
COPS 2002 grant; and,
WHEREAS, if savings result from the competitive procurement process, the
Chief of Police will be authorized to utilize savings for additional unspecified officer
safety equipment and supplies.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby accept $212,310 for local law enforcement from the Bureau of
Justice Local Law Enforcement Grant program.
Presented by: Approved as to form by:
Richard P. Emerson John M. K~heny ~/ (~"" '
Police Chief City Attorney
COUNCIL AGENDA STATEMENT
Item /S
Meeting Date 11/5/02
ITEM TITLE: Public Hearing regarding the formation of Community Facilities
District No. 0SM (Village 6 - McMillin Otay Ranch and Otay
Ranch Company)
A. Resolution of the City Council of the City
of Chula Vista, California, forming and establishing
Community Facilities District No. 08M (Village 6
McMillin Otay Ranch and Otay Ranch Company),
designating improvement areas therein and authorizing
submittal of levy of special taxes within each such
improvement area to the qualified electors thereof
B. Resolution of the City Council of the City
of Chula Vista, California, acting in its capacity as the
legislative body of Community Facilities District No. 08M
(Village 6 - McMillin Otay Ranch and Otay Ranch
Company) declaring the results of a special election in such
Community Facilities District
C. Ordinance of the City Council of the City of
Chula Vista, California, acting as the legislative body of
Community Facilities District No. 08M (Village 6 -
McMillin Otay Ranch and Otay Ranch Company)
authorizing the lev3/ of a special tax within each
improvement area of such Community Facilities District
SUBMITTED BY: Director of Public Works~
F'
REVIEWED BY: City Manag (4/5ths Vote: Yes__ No X )
On August 20, 2002 the City Council initiated the CFD No. 0SM proceedings by
adoption of Resolutions 2002-318 through 2002-320. On October 8, 2002 City Council
approved the modification to the Rate and Method of Apportionment. Tonight's action
will conclude the formal proceedings to establish CFD No. 08M. This district will fund
the perpetual operation and maintenance of slopes, medians and parkways and storm
water treatment facilities associated with Village 6 - McMillin Otay Ranch and Otay
Ranch Company. The City has retained the services of MuniFinancial as special tax
Meeting Date 11/5/02
consultant and Best Best and Krieger LLP as legal counsel to provide assistance during
the proceedings.
RECOMMENDATION: That Council:
1. Reopen Public Heating continued from October 8th and October 22nd meeting
and receive testimony from the public,
2. Approve the resolution forming and establishing Community Facilities District
No. 0SM (Village 6 - McMillin Otay Ranch and Otay Ranch Company),
designating improvement areas therein and authorizing submittal of levy of
special taxes within each such improvement area to the qualified electors thereof,
3. Conduct a Special Tax Election,
4. Approve the resolution declaring the results of a special election in Community
Facilities District No. 08M (Village 6 - McMillin Otay Ranch and Otay Ranch
Company), and
5. Approve the ordinance authorizing the levy of special tax within each
improvement area of Community Facilities District No. 08M (Village 6 -
McMillin Otay Ranch and Otay Ranch Company).
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
On January 13, 1998, Council adopted the "City of Chula Vista Statement of Goals and
Policies regarding the establishment of Community Facilities Districts" (the "Goals and
Policies"). The approval of this document ratified the use of CFDs as a public financing
mechanism for (1) the construction and/or acquisition of public infrastructure, and (2) the
financing of authorized public services. Taxes levied by maintenance districts, such as
CFD No. 0SM, are currently excluded from the 2% maximum tax criterion set forth in the
Goals and Policies.
On April 28, 1998, Council, acting under its Charter authority, enacted the "Chula Vista
Community Facilities District Ordinance" (the "Ordinance"). The Ordinance adopted the
Mello-Rbos Act with modifications to accomplish the following: 1) incorporate all
maintenance activities authorized by the "Landscaping & Lighting Act of 1972" ("1972
Act"), 2) include certain maintenance activities not listed in the "Mello-Roos Act" or the
"1972 Act", and 3) establish an operating reserve fund for open space districts.
CFD 08M will provide the necessary funding for the operation and maintenance of public
landscaping and storm water improvements serving Village 6 - McMillin Otay Ranch and
Page3, Item [~
Meeting Date 11/5/02
Otay Ranch Company by levying an annual "special tax", which is collected from the
property owners with/n CFD 0SM in conjunction with the property taxes. There is no
direct cost to the City. All expenses related to the district administration, including
levying and collecting the special taxes, are also funded from such special taxes.
The proposed CFD No. 08M is consistent with the above-mentioned Ordinance and the
Goals and Policies. In addition, staff has met with the developer to discuss their concerns,
clarify the intent of the Goals and Policies and Ordinance, and review the proposed
special tax rates and the methodology for the apportionment of the special taxes. All of
the issues raised by the developers have been discussed and solutions, satisfactory to all
parties, were incorporated in the "Rate and Method of Apportionment" (the "RMA")
approved at the August 20, 2002 Council meeting and modified at the October 8, 2002
Council meeting.
During it's August 20, 2002 meeting, City Council approved Resolution No. 2002-320
which ordered the preparation of a Community Facilities District Report ("Report").
During it's October 8, 2002 meeting City Council approved the modification of the
Report to include increased Special Tax rates for Improvement Area No. 1. The report
includes the following information in greater detail:
Area of Benefit
The proposed boundaries of CFD No. 0SM encompass parcels located within the Village
6. The district will be divided into two Improvement Areas based on benefit and
developer, one for McMillin Otay Ranch and the other for the Otay Ranch Company.
McMillin Otay Ranch LLC owns approximately 75% of the property within
Improvement Area No. 1. Otay Ranch Company owns 100% of the property within
Improvement Area No. 2. McMillin Otay Ranch is proposed to contain approximately
482 single-family detached homes, 212 multi-family units, a private high school on
approximately 38 acres and a church on approximately 13.2 acres of Community Purpose
Facility ("CPF') property. Otay Ranch Company Village 6 is proposed to include 313
single-family detached residences, 1079 multifamily units, 2.9 acres of commercial
property, and 5.2 acres of CPF property. Staff has reviewed the proposed boundary map
and has found it acceptable and ready for approval by Council. A reduced copy of the
map is presented in the Report.
Description of the Improvements to be Maintained
The proposed CFD No. 08M will fund the operation and maintenance of the public
landscaping and storm water treatment improvements within the Village 6 - McMillin
Otay Ranch and Otay Ranch Company. The list of the improvements is presented in the
report.
Page 4, Item
Meeting Date 11/5/02
Cost Estimate
The estimated annual budget for CFD No. 0SM, Improvement Area No. 1 presented on
October 8 is approximately $530,581. This budget includes a total of $513,159 (includes
additional 10% to fund an operating reserve) for maintenance, $17,422 for CFD
administration (preparing reports, levying and collecting taxes, public assistance, etc.) by
the Engineering Division. The estimated annual budget for CFD No. 0SM, Improvement
Area No. 2 is approximately $306,218. This budget includes a total of $288,796 (includes
additional 10% to fund an operating reserve) for maintenance, $17,422 for CFD
administration (preparing reports, levying and collecting taxes, public assistance, etc.) by
the Engineering Division. Staff (Public Works/Operations and Engineering) and
MuniFinancial have reviewed and approved the proposed budget. The detailed budgets
are included in the Report.
Proposed Special Tax
CFD 08M has four proposed categories of taxation, as follows:
· Residential Developed Parcels (Single Family and Multi-Family Residences) are
taxed based on the square footage of the structure.
· Commercial Parcels are taxed on the acreage of the parcel.
· The Final Mapped properties which include all single family residential parcels
for which a building permit has not been issued are taxed on acreage of the parcel.
· Vacant land (Other Taxable property) is taxed on acreage of the parcel.
· The Exempt Category includes all publicly owned parcels, Homeowner's
Association parcels, and certain CPF property owned by non-profit organizations.
Developed Parcels are those parcels for which a building permit has been issued. The
proposed maximum special tax rate in the RMA, on all Developed Parcels was
determined by dividing the estimated annual budget at buildout (plus an operating reserve
allocation of 10% of the annual budget) by the total estimated square fbotage of
development at buildout (reduced by 15% to avoid a possible revenue shortfall in the
event that the actual square footage of development does not meet the developer's current
projections).
The proposed maximum special tax rate in the RMA on vacant land has been determined
by dividing the estimated annual budget at buildout (plus a reserve allocation of 10% of
the annual budget) by the estimated net tot acreage within the district.
Collection of Taxes
At the beginning of each fiscal year the City shall determine the amount of the Special
Tax Liability (budget plus reserve) of each Improvement Area. Then, the special taxes
Page 5, Item /~
Meeting Date 11/5/02
will first be levied on the Residential Developed Parcels. If this pool of funds is not
enough to fund the Special Tax Liability, as may be the case in the early years of
development, the district will levy the special tax on the vacant land starting with Final
Mapped Property. The buffer of having the vacant land covering any portion of the
Special Tax Liability not funded from special taxes levied on Residential Developed
Parcels will disappear once the area has been fully developed. If the Special Tax Liability
for any fiscal year is less than the maximum special tax authorized to be levied on the
Developed Parcels, the actual rate of the special taxes to be levied in that specific year
will be reduced accordingly.
Following is a brief discussion of some key issues regarding the "Rate and Method of
Apportionment (RMA) of Special Taxes":
The maximnn~ special taxes rates shall be adjusted each year for inflation using a
factor equal to the increase, if any, of the annual change of the San Diego
Consumer Price Index.
· The Ordinance requires that the developer maintain the landscape improvements
for the minimum period of one year following their completion. During this
period the District will collect the special taxes with the purpose of building up a
six months operating reserve. The RMA provides that the annual budget for any
year may include an amount deemed necessary to maintain an adequate level of
this operating reserve fund.
· The maximum special tax rates are based on the best estimate by the developer of
the square footage of residential development within CFD 0SM (reduced by
15%). This reduction in estimated total square footage of development has the net
result of raising the maximum special tax that can be levied on futura residential
parcels to avoid a possible shortfall in special tax revenue in the event that the
actual square footage of development is less than the projected square footage on
which the computation of the special tax rates has been based. If the actual square
footage of development meets or exceeds the projections on which the special tax
rates were based, the actual special tax rate necessary to be levied am~ually to
fund the Special Tax Liability may be less than the authorized maximum special
tax.
· The special tax formula provides that any cost due to delinquent special taxes on
vacant land shall be apportioned to the Improvement Area where the delinquent
parcels are located.
· The annual budget used to calculate the special tax rates are only the "best
estimates" of the cost of maintenance at buildout. There is always a risk that
actual expenses in future years may be higher than the total maximum collectable
special taxes. This may result in reduced levels of maintenance of landscaping,
Page 6, Item
Meeting Date 11/5/02
unless the property owners approve an increase in the special tax rates (2/3 voter's
approval is required), which is considered unlikely. Staff believes, however, that
the proposed maximum special tax rates contain enough of a cushion in the
operating reserve, the inflation adjustment, and the assumed reduction of total
square footage of development to minimize the risk of future special tax revenue
shortfalls.
Proposed Maximum Annual Special Taxes
The proposed maximum annual special tax rates lbr fiscal year 2003/04 for a typical
dwelling unit within Improvement Area No. 1 of CFD 0SM is as follows:
Unit Type with Average Square Footage MeMillin Otay Ranch
Single Family Detached (Average Product Proposed 2,778
Square Feet) $715.54
Multi-Family (Average Product Proposed for the Vistas at
1,345 SF) $346.57
Vacant Land $4,431.88 / Acre
Private High School/Church $4,431.88 / Acre
The Special Tax Rates for Improvement Area No. 2 (Otay Ranch Company) are as
follows:
Unit Type with Average Square Footage Otay Ranch Company
Single Family Detached (Average Product Proposed 2,130 $383.18
Square Feet)
Multi-Family (Average Product Proposed 1,350 Square $207.18
Feet)
Vacant Land $3,729/Acre
Commercial $3,729/Acre
Resolutions/Ordinance
There are two resolutions and one ordinance on today's agenda, which, if adopted, will
accomplish the following:
The RESOLUTION OF FORMATION is the formal action of the City Council forming
and establishing Community Facilities District No. 0SM and authorizes the electors to
vote on the special taxes.
Page 7, Item / ~
Meeting Date 11/5/02
The RESOLUTION DECLARING ELECTION RESULTS is the formal action of the
City Council declaring the results of a special election in Community Facilities District
No. 08M.
The ORDINANCE AUTHORIZiNG THE LEVY OF A SPECIAL TAX is the formal
action of the City Council authorizing the levy of a special tax within each improvement
area of Community Facilities District No. 08M.
FISCAL IMPACT
All costs of formation of the district are being borne by the developers and the on-going
administration will be funded entirely by the district. The City will receive the benefit of
full cost recovering for staff cost involved in the following activities: 1) District
formation (Staff cost estimated at $50,000, and 2) District annual administration costs
(estimated annual staff cost each year is $23,850 and an additional $11,000 for the
contractual administration for the Engineering Division.)
Exhibits:
1) Community Facilities District Report
J:\Engineer\AGENDA\CAS ROF CFD 08M I 1-12-02 mtg doc
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT 08M
(VILLAGE 6, MCMILLIN OTAY RANCH AND OTAY RANCH
COMPANY)
COMMUNITY FACILITIES DISTRICT REPORT
CITY OF
CHUIA VISI'A
Submitted: October 9, 2002
MuniFinancial
Corporate Office Regional Offices
28765 Single Oak Drive Antelope Valley, CA Orange County, CA
Suite 200 Jacksonville, FL Phoenix, AZ
Temecula; CA 92590 Los'Angeles, CA San Diego, CA
Tel: (909) 699-3990 Oakland, CA Sacramento, CA
Tel: (800) 755-MUNI (6864) Seattle, WA
Fax: (909) 699-3460
www.muni.com
CITY OF CHULA VISTA
CITY COUNCIL
SHIRLEY HORTON, MAYOR
PATTY DAVIS, COUNCILMEMBER
STEVE PADILLA, COUNCILMEMBER
JERRY RINDONE, COUNCLLMEMBER
MARY SAI,AS, COUNCILMEMBER
CITY MANAGER
DAVE ROWLANDS
COMMUNITY FACILITIES DISTRICT REPORT
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 08M
TABLE OF CONTENTS PAC.~.
INTRODUCTION ........................................................................................ 1
A. DESCRIPTION OF SERVICES .............................................................. 2
B. BOUNDARIES OF COMMUNITY FACILITIES DISTRICT ............... 6
C. COST ESTIMATES FOR SERVICES ..................................................... 6
D. RATES AND METHODS OF APPORTIONMENT OF SPECIAL
TAXES ..................................................................................................... 6
E. GENERAL TERMS AND CONDITIONS .............................................. 7
F. CONCLUSION ........................................................................................ 7
EXHIBIT A ................................................................................................A-1
BOUNDA1LIES OF DISTRICT AND BOUNDARY MAP ................................................................................. A-1
EXHIBIT B ................................................................................................B-1
COST ESTLMATES .............................................................................................................................................. B- 1
EXHIBIT B-1 ........................................................................................................................................................... B-7
LANDSCAPE RESPONSIBILITY MAP, IMPROVEMENT ARF~ NO. 1 (~MCNfTI I IN OTAY RANCH) ................................. B-7
EXHIBIT B-2 ........................................................................................................................................................... B-8
LANDSCAPE RESPONSIBILITY MAp, IMPROVEMENT AREA NO. 2(OTAY R2kNCH COMPANY) ...................................
EXHIBIT C ................................................................................................ C-1
RATE AND MI~THOD OF APPORTIONMENT ..............................................................................................C-1
LMPROVEMENT AREA NO. l ........................................................................................................................... C-I
RATE AND METHOD OF APPORTIONMENT .............................................................................................. C-9
[MPROVEMI~NT .A_R_EA NO. 2 ........................................................................................................................... C-9
COMMUNITY FACILITIES DISTRICT REPORT
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 08M
(Village 6, McMillin Otay Ranch and Otay Ranch Company)
INTRODUCTION
WHEREAS, the City Council of the City of Chula Vista (hereinafter referred to as the "Agency" or
"legislative body of the local Agency"), in the State of Calfforni% did, pursuant to the provisions of
the Mello-Roos CornrnuD. ity Facilities Act of 1982, being Chapter 2.5 of Part 1, of Division 2, of
Tide 5 of the Government Code of the State o£ California ("Act"), and specifically Section 53321.5
thereof and the City of Chula Vista Cornmutlity Facil/ties District Ordinance enacted pursuant to the
powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the
Constitution of the State of California ("Ordinance") (the Act and Ordinance may be referred to
collectively as the "Community Facilities District Law", expressly ordered by adoption of Resolution
No. 2002-320 the filing of a written Community Facilities District Report ("Report") with the
Agency for a proposed Community Facilities District with two designated improvement areas, which
Community Facilities District shall be referred to as Cornmur~ity Facilities District No. 08M (Village
6, McMillin Otay Ranch and Otay Ranch Company), (hereinafter referred to as "CFD No. 08M");
and
WHEREAS, the Report generally contains the following:
a. a description of the Services by type which are required to adequately meet the needs of
CFD No. 08M;
b. an estimate of the cost of providing the Services, inducting incidental expenses and all other
related costs including but not limited to the determination of the amount of any special
taxes, collection of any special taxes, or costs otherwise incurred in order to carry out the
authorized purposes of the Agency with respect to CFD No. 08M and any other expenses
incidental to the maintenance and inspection of the authorized work to be paid through the
proposed special taxes;
c. the rotes and methods of apportionment of the special tax in sufficient detail to allow each
property owner within the proposed CFD No. 08M to estimate the maximum annual
amount of payment.
For particulars, reference is made to the Resolution of Intention (Resolution No.2002-319), the
Resolution of Modifying the Resolution of Intention (Resohidon No. 2002-397), and the Resolution
MuniFinancial Page- I City of Chula Vitta
i!~_ d/0157 ./aa/ Community Facilities District No. 0SM
Ordering the Preparation of the Community Facilities District Report (Resolution No. 2002-320)
previously approved.
NOW THEREFORE, MuniFinanelal. the appointed responsible firm directed to prepare the
Report, pursuant to the provisions of the Code, does hereby submit the following:.
A. DESCRIPTION OF SERVICES
The public services described below a.re proposed to be maintained by Community Facilities District
No. 08M. The landscaping improvements include, but are not limited to, all landscaping material
and facilities within each Improvement Area. These improvements include turf, ground cover,
shrubs, trees, plants, irrigation and drainage systems, ornamental lighting structures, masonry walls
or other fencing, trails, and associated appurtenant facilities located within the streetscape (parkway,
median and slope perimeter landscaping) surrounding the development and trails, perimeter wails,
and perimeter fencing in the development. The storm water quality improvements include, but are
not limited to, maintenance of all storm water quality improvements within each Improvement Area.
These services include the maintenance, repair, and replacement of storm drains, catch basin inserts,
hydrodynamic devices, infdtmfion basins, Vactor truck and sirnil,r facilities. Both the landscape
maintenance and storm drain maintenance allow for the collection of reserve ftmd and
administration costs.
Improvement Area No. 1 0VlcMillin Otay Ranch)
Landscaping Maintenance
Olympic Parkway (Between La Media Road and Neighborhood R-7a)
Medians -Prorata share not to exceed 50%
· South side of parkway
Trails
· Slopes
La Media Road (Between Santa Venetia Street to Olympic P~arkway) · Medians - Prorata share not to exceed 50%
· East side of parkway
· Trails
· Slopes
Birch Road (Between La Media and SR 125)
· Medians - Prorata share not to exceed 50%
· North side of parkway
· Trails
· Slopes _
Magdalena Avenue
· Medians - (All between Birch Road to Neighborhood R-4)
MuniFinancial Page-2 City of Chula Vina
/ . Community Facilities District No. 0SM
· South side of parkway between Birch Road and Neighborhood R-6
· North side of parkway along frontage of Neighborhood R-4 to appro~m.tely 300' east of
Santa Venetia Street, including Village Pathway and lighting.
Santa Venetia Street · Medians - Prorata share orS00' median east of La Media Road
· North side of parkway between La Media Road and Magdalena Avenue, including Village
pathway and lighting.
· South side of parkway along frontage of Neighborhood R-4 to Magdalena
View-park Way · Pazkways to East boundary orR-3
· Slopes
Open Space Slope in transit lot north of R-10
Open Space Lot O in Neighborhood R3
Interior Parkways
· Includes the landscaping between the curb and sidewalk on all interior residential parkways
within Improvement &rea No. 1
Pedestrian Bridges · Prorata share of bridge between Village Six and Village Five
· Prorata share of bridge between Village Six and Village Two
Storm Water Quality Maintenance · Poggi Canyon Detention Basin (Prorata share)
· Poggi Canyon Channel (Prorata share)
Perimeter Walls & Fencing
· Perimeter walls within perimeter slopes adjacent to Olympic Parkway
· Perimeter walls within perimeter slopes adjacent to La Media
· Perimeter wails within perimeter slopes adjacent to Magdalena Road
· Perimeter walls within perkneter slopes adjacent to Santa Venetia Street
· Perimeter walls v05thin pem-neter slopes adjacent to Magdalena Avenue
· Perimeter walls veithin perimeter slopes adjacent to Viewpark Way
Facilities directly related to removal of contaminants and solids from stoma water throughout the
Improvement Area including but not limited to stoma drams, catch basin inserts, hydrodynamic
devices, infiltration basins, and similar facilities.
MuniFinancial Page-3 City of Chula Vista
/~.~//~ Community Facilities District No. 0SM
Improvement Area No. 2 (Otay Ranch Company)
Landscaping Maintenance
Olympic Parkway (Between Neighborhood R-Th and SR 125)
Medians -Prorata share not to exceed 50%
· South side of parkway
· Trails
Slopes
La Media Road (Between Santa Venetia Street and Birch Road) · Medians - Prorata share not to exceed 50%
· East side of parkway
· Trails
· Slopes
Birch Road (Between La Media and Magdalena Avenue) · Medians - Protata share not to exceed 50%
· North side of parkway
· Trails
· Slopes
East P~lomar Street · Medians - (All between Olympic Parkway and Magdalena Avenue)
· North and south side of parkway between Olympic Parkway and Magdalena Avenue
· Slopes
Magdalena Avenue
· North side of parkway between Birch Road and Neighbothood R4 and from East Palom.r
Street to appzoximatdy 300' east of Santa Venetia Street
Santa Venetia Street · Medians - Prorata share from La Media Road to Neighborhood R-4
· South side of parkway from La Media Road to Neighbor. hood R-4
Pedestrian Bridges · Prorata share of bzidge between Village Six and Village Five
· Prorata share of b~idge between Village Six and Village Two
Storm Water Quality Maintenance · Poggi Canyon Detention Basin (Ptotata share)
· Poggi Canyon Channel (Prorata share)
MuniFinancial Page4 City of Chula Vina
~ /oL~ // ~ Community Faxilides District No. 08M
Perimeter Walls
· Perimeter walls within pertmeter slopes adjacent to Olympic Parkway
· Perimeter walls within pet~meter slopes adjacent to La Media
Perimeter walls w/thio penmeter slopes adjacent to Birch Road
· Perimeter walls within pertmeter slopes adjacent to East Palom~r Street
· Perimeter walls within penmeter slopes adjacent to Santa Venetia Street
· Perimeter walls within perimeter slopes adjacent to Birch Road
Facilities directly related to removal of contamin.uts and solids from storm water throughout the
Improvement Area including storm drains, catch basin inserts, hydrodynamic devices, filtration
basins, and similar facilities.
SUBSTITUTION OF FACLLITES
The description of the Facilities and Services, as set forth above, is general in its nature. The final
nature and locadon of the Facilities and Services will be determined upon the preparation of find
plans and specifications. The final plans may show substitutes in lieu of, or modification to, the
proposed Facilities and ServS. ces in order to provide the public facilities necessitated by development
occq~rring in the District, and any such substitution shall not be a change or modification in the
proceedings as long as such substitute facilities and services serve a function or provide a service
substantially similar to that function served or the service provided by the Facilities and Service
described above.
MuniFinancial Page-5 City of Cbula Vista
/~ /~- Community Facilities District No. 0SM
B. BOUNDARIES OF COMMUNITY FACILITIES DISTRICT
The boundaries of CFD No. 08M coincide with previously established parcels as shown on the
latest County Assessor maps or approved parcel maps and include all properties on which special
taxes may be levied to pay for the costs of services.
The boundaries of CFD No. 08M axe described on "Exhibit A", reduced scale maps entitled
"Proposed Boundary Map of Community Facilities District No. 08M" which axe attached hereto
and incorporated herein. A full-scale map is on file with the Clerk of the City of Chula Vista and
was recorded with the County Recorder, County of San Diego in Book 36 page 39 in the Book of
Maps of Assessment and Community Facilities Districts, Instrument Number 2002-0751574.
C. COST ESTIMATES FOR SERVICES
The establishment of CFD No. 08M was required to fund the perpetual operation and maintenance
of slopes, medians, parkways, trails, perimeter walls, perimeter fencing and storm water treatment
facilities associated with Village 6, McMillin Otay Ranch and Otay Ranch Company. The initial
budgets are estimated to be approXmaately $530,581 for Improvement Area No. 1 and $316,696 for
Improvement Area No. 2.
For the esHm~ted location of the improvements and a more detailed cost estimate, please refer to
"Exhibit B".
D. RATES AND METHODS OF APPORTIONMENT OF SPECIAL
TAXES
The Resolution of Intention (Resolution No. 2002-319) generally sets forth the rates and methods of
apportionment of the special tax, which allows each property owner within the proposed CFD to
estimate the annual amount that would be required for payment if a special tax were levied. The Rate
and Method for Improvement Area No. 1 has been modified by the Resolution Proposing to
Modify the Resolution of Intention (Resolution No. 2002-397).
The modification to the Rate and Method of Apportionment for Improvement Area No. 1 includes
the ability to levy for additional landscaping including interior parkways, slopes along Viewpark Way
and the slope associated with the Open Space Lot north of R-10. The maintenance of this additional
landscaping has increased the MaxLmum Special Tax Rates and property owners may expect to see
their annual Special. Tax increase by approximately 24o/o from $0.208 per square foot to $0.258 per
square foot.
For partic~l~rs of the rates and methods of apptYrdonment, see "Exhibit C", Rates and Methods of
Apportionment of Special Tax.
MuniFinancial Page-6 City of Chula Vista
~ /~5~/ffa~ Community Facilities District No. 0SM
E. GENERAL TERMS AND CONDITIONS
Services
The description of the Services, as set forth herein, is general in nature. The final nature and
location of the facilities that will be m~iq. takled will be determined upon the preparation of final
plans and specifications or the approval of services.
F. CONCLUSION
Based on information provided by, and discussions with, the Agency and the property ownezs, the
Services and Facilities listed in this Report are those that are necessary to meet increased demands
placed on the Agency as a result of development ocm~rrlng within the botmd~ries of the City of
Chub. Vista. Further, it is my opinion that the special tax rotes and methods of apportionment as set
forth in "Exhibit C" are equitable and are not discriminatory or arbitrary and permit a purchaser of
property subject to the special tax a fair means of determining his or her obligation.
MurfiFinancial
By:
Lyn Graber
MuniFinancial Page-7 City of Chula Wuta
'~-: /<~ ~ f 7 Community Facilities District No. 0SM
EXHIBIT A
BOUNDARIES OF DISTRICT AND BOUNDARY MAP
Bound,-mes of Dislxict:
The exterior boundaries of CFD No. 08M are shown on that certain map now on file in the Office
of the City Clerk entitled "Proposed Bounckr~ Map Community Facilities District No. 08M". This
map indicates by a boundary line the extent of the temtou included in proposed CFD No. 08M,
each improvement area and shall govern for all details as to the extent of CFD No. 08M and each
Improvement A~ea. The parcels of real property within CFD No. 08M are described more
particularly on the Assessor Parcel Maps and recorded Parcel Maps that are on file in the office of
the San Diego County Assessor and are incorporated into this Report by reference.
Boundary Map:
A reduced copy of the Boundary Map follows. The oliginal of such map is on file in the Office of
the City Clerk and in the records of the County Recorder, County of San Diego, and State of
California. The t~ngnl~r portion of IA No. 2 extending east of Future SR 125 will be removed
from CFD 08M upon recordation of a map that separates it from the remaining parcel that is within
CFD 08M.
Site Location:
-- Improvement Area No. 1
Improvement Area No. 1 (McMilll, Otay Ranch) is proposed to include 482 Single Family
Residences, 212 Multi-Family units, and 44.2 taxable acres of chuzch and CPF Propexty.
Improvement Area No. 1 is located north of Birch Road, south of Olympic Parkway, v~est of SR
125 (a future road), and east of La Media Road.
Improvement Area No. 2
Improvement Area No. 2 (Otay Ranch Company) is proposed to include 443 Single F~rnily
Residences, 910 Multi-Family units and 2.6 acres of commercial development. Improvement Area
No. 2 is generally located in two areas. The first area is located east of La Media Road, north of
Birch Road, west of Magdalena Avenue, west of properties located on Trail Wood Dtlve, and south
of Santa Venetia Street. The second area is located south of Olympic Parkway, east of the propexties
located on Oak Point Drive, north of Santa Venetia Street, north of Magdalena Avenue, and north
of East Palomnr Street.
MuniFinancial Page A--I City of Cbula Vista
/d"/f~ ~ Community Facilities Di~trict No. ORM
CHUIA vISrA
EXHIBIT B
COST ESTIMATES
Improvement Area No. 1
I. LANDSCAPE MAINTENANCE BUDGET
Area Cost Total
Landscaped Per Duratlnn Annual Cost
Olympic Parkway
Planted Area - Slopes 200,000 $ 0.240 Yr $ 48,000
Planted Area - Parkways 48,200 $ 0.470 Yr $ 22,654
Planted Area - Median 11,000 $ 0.540 Yr $ 5,940
D.G. Trail 6,000 $ 0.057 Yr 342.
Total $ 76,936
La Media Road
Planted Area - Median 7,700 $ 0.540 Yr $ 4,158
Planted Area - Slopes 127,400 $ 0.240 Yr 30,576
Planted Area - Parkways 40,000 $ 0.420 Yr 16,800
D.G. Trail 4,500 $ 0.057 Yr 257
Total $ 51,791
Santa Venetia Street
Planted Area - Median 1,500 $ 0.540 Yr $ 810
Planted Area - Slopes 15,600 $ 0.240 Yr 3,744
Planted Area - Parkways 38,500 $ 0.420 Yr 16,170
Planted Area - Turf 27,700 $ 0.450 Yr 12,465
D.G. Trail 2,000 $ 0.057 Yr 114
Total $ 33,303
Magdalena Avenue
Planted Area - Median 1,200 $ 0.540 Yr $ 648
Planted Area - Slopes 9,700 $ 0.240 Yr 2,328
Planted Area - Parkways 54,800 $ 0.420 Yr 23,016
Planted Area - Turf 53,200 $ 0.450 Yr 23,940
Total $ 49,932
MuniFinancial Page B-1 City of Chula Wuta
//7_. ~ _ Community Facilities District No. 08M
/adO
CHU~ VISTA
Area Cost Total
Birch Road Landscaped Per Duration Annual Cost
Planted Area - Media~a 18,100 $ 0.540 Yr $ 9,774
Pla~ted Area - Parkways 75,000 $ 0.420 Yr 31,500
Total $ 41,274
l~.nhanced Walkway {Adjacent to Lots 25 and 26)
Planted Area - Slopes 1,400 $ 0.240 Yr $ 336
Planted Areas - Parkway 5,41)0 $ 0.420 Yr $ 2~68
D.G. Trail 2,000 $ 0.057 Yr 114
Total $ 2,718
Viewpark Way
Pla~ted Area - Slopes 9,600 $ 0.240 Yr $ 2,304
Interior Parkways (throughout development)
Plmted Areas - Parkway 204,200 $ 0.420 Yr $ 85,764
Open Space Lot Slope 16,507 $ 0.240 Yr $ 3,962
walls, Monuments & Fencing
Masonry Walls 5,325 $ 0.833 Yr $ 4,436
View Walls 5,550 $ 0.493 Yr $ 2,736
Split Poi1 Fences 1,000 $ 1.500 Yr $ 1,500
Tota/ $ 8,672
Street Trees 478 $ 55.00 Yr $ 26,290
LaMedia Road Pedestrian Bridge 1 $ 1,120.00 Yr $ 1,120
Viewpark Way - Planted Area 18,528 $ 0.420 Yr $ 7,782
Village Pathway Lighting 51 $ 82.500 Yr $ 4,208
Total Landscal>e Maintenance $ 396,054
MuniFinancial Page B-2 City of Chula Vista
: /otg~.~l/ Community Facilities District No. 08M
CHUIA vIsrA
I~. STORM WATER MAINTENANCE BUDGET
Number Cost per Services Total
Village 6 Stormwater Maintenance of Units Service per Year ~nnn~! CoM'
Drainpacs - Maintenance 113 $ 100 4 45,200
Drainpacs - Replace Filter Bag 113 $ 200 0.5 11,300
Total $ 56,500
Poggi Cyn
Chamael 1 $ 1,692 l $ 1,692
Detention Basin 1 $ 2,294 12,294
Total , $ 3,986
Vactor Truck o) 1 $ 64,489 0.13 $ 8,384
Total Storm Water Maintenance $ 68,870
TOTAL LANDSCAPE AND STORM WATER MAINTENANCE $ 464,924
ADMINISTRATIVE EXPENSES $ 17,422
IV. Reserve $ 48,235
V. Total Annual Cost $ 530,581
(1) Vactor Truck - "Cost per Service" represents the Village 6 Improveaa~ent Area No. 1 proportionate shard of the
replacement Storm Water Quality Vactor unit. "Service per Year" represents the annual factor, that when multiplied by
the Cost per Serdce, results in an annual amount paid into a fund contributed to by certain rnalnr~n~nce CFI)'s in the
City of Chula Vista that will be used to replace the existing Vactor mt using m eight year cyde.
MuniFinancial Page B-3 City ftC. hula Vista
-- /0~ ~)_,,)_.' Community Facilities District No. 0SM
CHU~A VISTA
Improvement Area No. 2
I. LANDSCAPE MAINTENANCE BUDGET
Area Cost Total
Code Landscaped Per Duration Annual Cost
Improvement Area No. 2 (Otay
Ranch)
Slopes
Planted Area - Slopes 3 373,223 $ 0.240 Yr $ 89,574
Olympic Parkway
Planted Area - Medians 1 16,910 $ 0.420 Yr 7,102
Planted Area - Parkways 1 60,620 $ 0.420 Yr $ 25,460
Total $ 122,136
La Media Road
Planted Area - Median 1 2,5200 $ 0.420 Yr $ 10,584
Planted Area - Parkways 1 7,330 $ 0.420 Yr $ 3,079
· Total $ 13,663
E. Palomar Street
Pedestrian Lights 13 $ 82.500 Yr $ 1,073
: Planted Area - Median 1 46,900 $ 0.420 Yr $ 19,698
~ Turf- Median 2 7,730 $ 0.540 Yr 4,174
Planted Area - Parkways 1 15,550 $ 0.420 Yr $ 6,531
Tuff- Paxkways 2 21,090 $ 0.540 Yr 11,389
! Total $ 42,864
Birch Road
Planted Area - Median 1 26,640 $ 0.420 Yr $ 11,189
Planted Area - Par&ways 1 7,130 $ 0.420 Yr $ 2,995
Total $ 14~183
Santa Venetia Street
Planted Area - Parkways 1 4,800 $ 0.420 Yr $ 2,016
Planted Area - Turf 2 _. 7,370 $ 0.540 Yr $ 3,980
Total $ 5,996
MuniFinancial Page 34 City of Chula Vista
~ Community Facilities District No. 08M
CHULA VbTA
Area Cost Total
Magdalena Code Tandscaped Per Duration Annual Cost
Pedesn4~, Lights 15 $ 82.500 Yr $ 1,238
Planted Area - Median 1 9,800 $ 0.420 Yr $ 4,116
Tuff- Median 2 13,250 $ 0.540 Yr $ 7,155
Total $ 12,509
Viewpark Way
Planted Area - Parkways 1 $ 0.420 Yr $
Planted Area - Turf 2 15,830 $ 0.540 Yr $ 8,548
Total $ 8,548
Walls & Fencing
Masonry Wails 6,150 $ 0.833 Yr $ 5,125
Split Raft Feaxces 1,020 $ 1.500 Yr $ 1,530
Total $ 6,655
Other
Street Trees 455 $ 55.000 Yr $ 25,025
Ped Bridge from xFfllage 6 to
2 0.5 $ 2,240.000 Yr $ 672
Ped Bridge from Village 6 to
5 0.5 $ 2.240.000 Yt $ 672
Total $ 26~369
Total Landscape
Maintenance $ 252,923
]ff. STORM WATER MAINTENANCE
BUDGET
Village 6 Stormwater Number of Cost per Services Total Annual
Maintenance Units Service per Year Cost
CDS Screen Replacement 2 $ 67 1 134
_6.nnual CDS Unit Inspection 2 $ 370 1 740
Drafiapacs - Maintenance 15 $ 100 4 6,000
Dtai~pacs - Replace Filter Bag 15 $ 200 0.5 1,500
CDS Offline Units - 2 $ 450 4 3,600
Vortechnics Unit 1 $ 500 4 2,000
Total $ 13,974
MuniFinancial Page B-5 City of Chula V'~s~a
' /0/5.4 ~ Community Facilities District No. 0SM
CHUL~ VISTA
Number of Cost per Services Total Annual
Units Service per Year Cost
Poggi Canyon
Ch~,~el 1 $ 798 Yr $ 798
Detention Basin I $ 1,082 Yr $ 1,082
Total $ 1,880
Vactor Truck 01 13.126.13 $ 0.13 $ 1,706
$ 1,706
Total Storm Water Maintenance $ 17,560
TOTAL LANDSCAPE AND STORM WATER MAINTENANCE COST PER
YEAR $ 270,484
I]I. ADMINISTRATIVE EXPENSES $ 17,422
IN'. Reserve $ 28,791
V. Total Annual Cost $ 316,696
(1) Vactor Truck - "Cost per Service" represents the V'flLage 6 Improvement Area No. 1 proportionate shaxd of the
replacement Storm Water Quality Vactor umt. "Service per Year" represents the axmual factor, that when mul6plied by
the Cost per Service, results in an annual amount paid into a fund contributed to by certain maintenance CFD's in the
City of Chula Vista that will be used to replace the existing Vactor using an eight year cycle.
SUBSTITUTION OF SERVICES AND FACILITIES
The description of the Services and Facilities, as set forth herein, is general in its nature. The final
nature and location of the Services and Facilities will be determined upon the preparation of/Smal
plans and specifications. The final plans may show substitutes in lieu of, or modification to, the
proposed Services and Facilities in order to provide the public Services and Facilities necessitated by
development occurring in CFI) No. 0SM, and any such substitution shall not be a change or
modification in the proceedings as long as such substitute Services and Facilities serve a function or
provide a service substanfi,lly similar to that function served or the service provided by the Services
and Facilities described in this Report. -
MuniFinancial Page B-6 City of Chula Vista
! Community Facilities District No. 0SM
CHUIA VISTA
Exhibit B-!
Landscape Responsibility Map, Improvement Area No. 1 (McMillin Otay Ranch)
MCMILLIN LOMAS VERDES
VILLAGE 6
MAINTENANCE RESPONSIBILITY
?
CHU~ VISTA
EXHIBIT C
RATE AND METHOD OF APPORTIONMENT
IMPROVEMENT AREA NO. 1
(McMillin Otay Ranch)
A Special Tax of Community Facilities District No. 08M (Village 6, McMillin Otay Ranch and Otay
Ranch Company) of the City of Chula Vista C'CFD") shall be levied on all Assessor's Parcels in
Improvement Area No. 1 of the CED and collected each Fiscal Year commencing in Fiscal Year
2002-03 in an amount determined through the application of the rate and method of apportionment
of the Speciai Tax set forth below. All of the real property in the CF'D, unless exempted by law or
by the provisions hereof, shall be taxed for the purposes, to the extent and in the rnanrter herein
provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's
Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area
shown on the applicable Final Subdivision Map, other final map, other parcel map, other
condominium plan, or functionally equivalent map or instrument recorded in the Office of
- - the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage
multiplied by 43,560.
- "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter
2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California.
'-' "Administrative Expenses" means the actual or estimated costs incurred by the City,
acting for and on behalf of the CED as the administrator thereof, to determine, levy and
collect the Special Taxes, including salaries of City employees al:Id a proportionate amount of
the City's general administrative ove~ead related thereto, and the fees of consultants and
legal counsel providMg sex'vices related to the administration of the CFI); the costs of
collecting installments of the Special Taxes; and any other costs required to administer IA
No. 1 of the CFD as determined by the City.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an
assigned assessor's parcel number.
"Assessor's Parcel Map" means an official map of the Assessor of the County designating
parcels by assessor's paxcel number.
"CED Administrator" means an offic~l of-the City, or designee thereof, responsible for
deterrninlng the Special Tax Requirement and providing for the levT and collection of the
Special Taxes.
MuniFinancial Page C-I City of Chula Vista
Community Facilities District No 0SM
CHUIA VISIA
"CFD" means Community Facilities District No. 08M of the City of Chula Vista.
"City" means the City of Chula Vista.
"City Clerk" means the City Clerk for the City of Chula Vista or his or her designee.
"City Manager" means the City Manager for the City of Chula Vista or his or her designee.
"Community Purpose Facility Property" or "CPF Property" means all Assessor's
Parcels which axe classified as community purpose facilities and meet the requirements of
City of Chula Vista Ordinance No. 2452.
"Council" means the City Council of the City of Chula Vista, acting as the legislative body
of the CFD.
"County" means the County of San Diego, California.
Developed Property means all Taxable Property for which a building permit was issued
after January 1, 2002, but prior to the March 1st precedhg the Fiscal Year in which the
Special Tax is being levied.
"Final Map Property" means a single family resident/al lot created by a Final Subdivision
Map, but which is not classified as Developed Property.
"Final Subdivision Map" means a subdivision of property creating single family residential
buildable lots by recordation of a final subdivision map or parcel map pursuant to the
Subdivision Map Act (California Government Code Section 66410 et seq.), or recordation of
a condominium plan pursuant to Californi~ Civil Code 1352, that creates individual lots for
which building permits may be issued without further subdivision and is recorded prior to
March 1 preceding the Fiscal Year in which the Special Tax is being levied.
"Fiscal Year" means the period start/ngJuly 1 and ending on the following June 30.
"Improvement Area No. 1" or "IA No. 1" means Improvement Area No. 1 of the CFD,
as identified on the boundary map for the CFD.
"Land Use Class" means any of the classes listed in Table 1 or Table 2.
"Landscape Maintenance" means the labor, material, administration, personnel,
equipment and utilities necessary to maintain landscaped improvements w/thin the public
fight-of-ways, parkways, slopes, wetlands and other public easements throughout the CFD.
"Landscape Maintenance Requirement" means, for any Fiscal Year in which Special
Taxes are levied, the amount equal to- the -budgeted costs for Landscape Maintenance
applicable to IA No. 1 for such Fiscal Year.
MuniFinancial Page C-2 City af Chula Wtsta
//~ ~ Community Facilities District No. OaM
CHUIA VISTA
'Wlaximum Special Tax" means the maximum Special Tax, determined in accordance with
Section C below, that may be levied in any Fiscal Year on any Assessor's Parcel of Taxable
Property.
'Wlulti-Family Property" means allAssessor's Parcels of Developed Property for wkich a
building permit has been issued for a residential sl~ucture consisting o£ two or more
residential units that share common walls, including, but not limited to, duplexes, triplexes,
townhomes, condominiums, and apartment traits.
"Non-Residential Property" means ail Assessor's Parcels of Developed Property for
which a building permit(s) has been issued for a structure or structures for non-residential
use. Including lot S-2 and CPF-2.
"Operating Fund" means a fund that shall be maintained for IA No. 1 for each Fiscal Year
to pay for Landscape Maintenance and Storm Water Quality Maintenance and
Admiaistrative Expenses.
"Operating Fund Requirement" means, for any Fiscal Year, the sum of the applicable
Landscape Maintenance Requirement and the applicable Storm Water Quality Maintenance
Requirement.
"Other Taxable Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property, Final Map Property, or Taxable Property Owners Association
Property.
"Property Owner Association Property" means any property within the boundaries IA
No. t of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument
recorded with the County Recorder to, a property owner association, including any master or
sub-association.
"Proportionately" means in a manner such that the ratio of the actual Spedal Tax levy to
the Maximum Special Tax is equal for all Assessor's Parcels of Taxable Property within each
Land Use Class.
"Public Property" means any property within the boundaries of IA No. 1 of the CFD that
is, at the time of the CFD formation, expected to be used for any public purpose and is
owned by or dedicated to the federal gove. rm~ent, the State, the County, the City or any
other public agency.
"Reserve Fund" means a fund that shall be maintained for IA No. 1 for each Fiscal Year to
provide necessary cash flow for the first six months of each Fiscal Year, reserve capital to
cover monitoring, maintenance and repair cost overruns and delinquendes in the payment of
Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies.
"Reserve Fund Requirement" means an amount equal to up to 100% of the Operating
Fund Requirement for any Fiscal Year.
MuniFinancial Page C-3 City of Chula Vista
Community Facilities District No. 0SM
CHULA VISTA
"Residential Property" means all Assessor's Parcels of Developed Property for which a
building permit(s) has been issued for purposes of consmxcting one resident/al dwelling unit.
"Special Tax" means the Special Tax levied pursuant to the provisions of sections C and D
below in each Fiscal Year on each Assessor's Parcel of Developed Property and
Undeveloped Property in LA No. 1 to fund the Special Tax Requirement.
"Special Tax Requirement" means that mount required in any Fiscal Year for IA No. 1
to: (a) (7 pay the Landscape Maintenance Requirement; (ii) pay the Storm Water Quality
Maintenance Requkement3 (iii) pay reasonable Administrative Expenses; (iv) pay any
mounts required to establish or replenish the Reserve Fund to the Reserve Fund
Requirement; (v) pay for reasonably anticipated delinquent Special Taxes based on the
delinquency rate for Special Taxes levied in the previous Fiscal Year; less Co) a credit for
funds available to reduce the annual Special Tax levy, including the excess, if any, in the
Reserve Fund above the Reserve Fund Requirement.
"Square Foot" means the square footage as shown on an Assessor's Parcel's building
pemait of Residential Property or Multi-Family Property, excluding garages or other
structures not used as living space.
"State" means the State o£ California.
"Storm Water Quality Maintenance" means the maintenance of detention basins, storm
drains, catch basin inserts, hydrodynamic devices, infiltration basins, and all other facilities
that axe direcdy related to storm water quality control throughout IA No. 1.
"Storm Water Quality Maintenance Requirement" means for any Fiscal Year an
amount equal to the budgeted costs for Storm Water Quality Maintenance applicable to LA
No. 1 for the current Fiscal Year in which Special Taxes are levied.
"Taxable Property" means all of the Assessor's Parcels within the botmchfies of IA No. 1
of the CFD that are not exempt from the Special Tax pursuant to law or as defined below.
"Tax-Exempt Property" means an Assessor's ParCel not subject to the Special Tax. Tax-
Exempt Property includes: (i) Public Property, or (ii) Property Owner Association Property,
or ('iii) Assessor's Parcels with public or utility easements making impractical their utilization
for other than the purposes set forth in the easement.
"Taxable Property Owner Association Property" means ali Assoc/ation Property
wh/ch is not exempt from the Special Taxx pursuant to Section E below.
"Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property.
MuniFinancial Page C4 City of Chula l/~sta
Community Facilities District No. 0SM
' CHUIA VISTA
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year using the definitions above, all Taxable Property within IA No. 1 of the
CFD shall be classified as Developed Propen7, Final Map Property or Undeveloped
Property, and shall be subject to Special Taxes ptttsuant to Sections C and D below.
Developed Property shall be further assigned to a Land Use Class as specified in Table 1.
Undeveloped Property shall be further assigned to a L~nd Use Class as specified in Table 2.
C. MAXIMUM SPECIAL TAX RATE
1. Developed Property
TABI.I~ 1
· Maximum Special Tax for Developed Property
Community Facilities District No. 0SM
Improvement Area No. 1
Land Storm Maximum
Use Description Landscape Water Quality Special Tax
Class Maintenance Maintenance
1 Resident/al Property $0.220 per Sq Ft $0.038 per Sq Ft $0.258 per Sq Ft
2 Multi-Family Property $0.220 per Sq Ft $0.038 per Sq Ft $0.258 per Sq Ft
3 Non-Residential Property $3,777.89 per Acre $653.99 per Acre $4,431.88 per Acre
Multiple Land Use Clas,es
In some instances an Assessor's Parcel of Developed Property may cor~tain more
than one Land Use Class. The Max/mum Special Tax that may be levied on an
Assessor's Parcel shall be the sum of the Maximum Special Tax levies that may be
levied on all Land Use Classes located on that Assessor's Parcel. The CFD
Administrator's shall determine the allocation to each Land Use Class.
MuniFinancial Page C.5 City of Chula Vbta
Community Facilities District No. 0SM
-
CHUlA VlS~
2. Undeveloped Property
TABLE 2
Maximum Special Tax for Undeveloped Property
Community Facilities District No. 08M
Improvement Area No. 1
Land Landscape Storm Maximum
Use Description Maintenance Water Quality Special Tax
Class Maintenance
4 Final Map Property $3,777.89 per Acre $653.99 per Acre $4,431.88 per Acre
5 Other Taxable Property $3,777.89 per Acre $653.99 per Acre $4,431.88 per Acre
6 Taxable Property Owner $3,777.89 per Acre $653.99 per Acre $4,431.88 per Acre
Association Property
3. Annual Escalation of Maximum Special Tax
The Maximum Special Tax as shown in the tables above that may be lev/ed on each
Assessor's Parcel in IA No. 1 shall be increased each Fiscal Year beginning in Fiscal
. _ Year 2003-04 and thereafter by a factor equal to the annual percentage change in the
San Diego Metropolitan Area All Urban Consumer Price Index (Ail Items).
-- D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2002-03, and for each following Fiscal Yea.r, the Council shall
levy the IA No. 1 Special Tax at the rates established pursuant to steps 1 through 4 below so
that the mount of the Special Tax lev/ed equals the Special Tax Requirement. The Special
Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied proportionately on each Assessor's Parcel of
Developed Property up to 100% of the applicable Maximum Special Tax;
Second: If additional monies are needed to sadsfy the Special Tax Requirement after the
first step has been completed, the Spedal Tax shall be levied Proportionately on each
Assessor's Parcel of Final Map Property at up to 100% of the Maximum Special Tax for
Final Map Property;
Third: If additional monies are needed to satisfy the Special Tax Requirement after the first
two steps have been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Other Taxable Property at-up to 100% of the Maximum Special Tax for
Other Taxable Property;
MuniFinancial Page G6 City of Chula Vista
./ Community Facgities District No. 08M
" CHUL~ VISTA
Fourth: If additional moneys are needed to satisfy the Special Tax Requirement after the first
three steps have been completed, the Special Tax shall be levied proportionately on each
Assessor's Parcel of Taxable Property Owner Association Property at up to 100% of the
Maximum Special Tax for Taxable Property Owner Association Property.
Notwithstanding the above, under no circumstances will the Special Tax levied against any
Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy
permit for private residential use has been issued be increased by more than ten percent
annually up m the Maximum Special Tax as a consequence of delinquency or default by the
owner of any other Assessor's Parcel within IA No. 1 of the CFD.
E. EXEMPTIONS
The CFI) Administrator shall classify as exempt property (i) Assessor's Parcels defined as
Public Property, and (h) Assessor's Parcels with public or utility easements mot4ng
impractical their utilization for other than the purposes set forth in the easement.
The CFD Administrator shall classify as exempt property those Assessor's Parcels defined as
Property Owner's Association Property provided that no such classification would reduce
the sum of all taxable Property to less than 128.11 Acres. Assessor's Parcels defined as
Property Owner Association Property that cannot be classified as exempt property will be
classified as Taxable Property Owner Association Property and shall be taxed as part of the
fourth step in Section D.
The CFD Adminlstmtor will assign Tax-Exempt status in the chronological order in .which
property becomes exempt.
F. APPEALS
Any landowner or resident who pays the Special Tax and believes that the amount of the
Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD
Admi~strator regarding such error. If following such consultation, the CFD Admlnlstmtor
determines that an error has occurred, the CFI) Admlni~trator may amend the amount of the
Special Tax levied on such Assessor's Parcel. If following such consultation and action, ff any
by the CFD Administrator, the landowner or resident believes such error still exists, such
person may file a written notice with the City Clerk of the City appealing the amount of the
Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City
Clerk shall forward a copy of such notice m the City Manager who shall establish as part of
the proceedings and administration of the CFD, a special three-member Review/Appeal
Committee. The Review/Appeal Committee may establish such procedures, as it deems
necessary to undertake the review of any such appeaL The Review/Appeal Committee shall
interpret this Rate and Method of Apportionment and make determinations relative to the
armual administration of the Special Ta,,r~and -any landowner or resident appeals, as herein
specified. The decision of the Review/Appeal Committee shall be final and binding as to all
persons.
MuniFinancial Page C-7 City of Chula Vista
[ . Community Facilities District No. 08M
- CHUIA VISTA
G. MANNER OF COIJ.F. CTION
Special Taxes levied pursuant to Section D above sh~lt be collected in the same m~nner and
at the same time as ordinary ad valorem property taxes; provided, however, that the CFD
Administrator may directly bill the Special Taxx, may collect Special Taxes at a different time
or in a different manner if necessary to meet the financial obligations of IA No. 1 of the
CFD or as otherwise determined appropriate by the CED Administrator.
H. TERM OF SPECIAL TAX
Taxable Propercy in LA No. 1 of the CFD shall remain subject to the Special Tax in perpetuity.
MuniFinancial Page C-8 City of Chula Wuta
~- /f ~ Community Facilities District No. 08M
CHULA VISTA
RATE AND METHOD OF APPORTIONMENT
IMPROVEMENT AREA NO. 2
(Otay Ranch Company)
A Special Tax of Community Facilities District No. 08M (Village 6, McMillin Otay Ranch and Otay
Ranch Company) of the City of Chula Vista C'CFD') shall be levied on all Assessor's Paxcels in
Improvement Area No. 2 of the CFD and collected each Fiscal Year commencing in Fiscal Year
2002-03 in an mount determined through the application of the rate and method of apportionment
of the Spec/al Tax set fort5 below. All of the real property in the CFD, unless exempted by hw or
by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein
provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's
Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the la~d area
shown on the applicable Final Subdivision Map, other final map, other parcel map, other
condomlnhmx plan, or functionally equivalent map or instrument recorded in the Office of
the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage
multiplied by 43,560.
"Act" means the Mello-Roos Commullity Facilities Act of 1982, as amended, being Chapter
2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California.
"Administrative Expenses" means the actual or es6m~ted costs incurred by the City,
acting for and on behalf of the CFD as the administrator thereof, to determine, levy and
collect the Special Taxes, including s~l~fes of City employees and a proportionate amount of
the City's general administrative overhead related thereto, and the fees of consultants and
legal counsel providing services related to the administration of the CFD; the costs of
collecting installments of the Special Taxes; and any other costs required to administer IA
No. 2 of the CFD as determined by the City.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an
assigned assessor's parcel number.
"Assessor's Parcel Map" means an official map of the Assessor of the County designating
parcels by assessor's parcel number.
"CFD Administrator" means an official of the City, or designee thereof, responsible for
determining the Special Tax Requirement and providing for the levy and collection of the
Special Taxes. -
"CFD" means Commmlity Facilities District No. 08M of the City of Chula Vista.
MuniFinancial Page G9 City of C. bula Wuta
Community Facilities District No. 0SM
CHUIA VISTA
"City" means the City of Chula Vista.
"City Clerk" means the City Clerk for the City of Chula Vista or his or her designee.
"City Manager" means the City Manager for the City of Chu]~ Vista or ins or her designee.
"Community Purpose Facility Property" or "CPF Property" means all Assessor's
Parcels winch are classified as community purpose facilities and meet the requirements of
City of Chula Vista Ordinance No. 2452.
"Council" means the City Council of the City of Chula Vista, acting as the legislative body
of the CFD.
"County" means the County of San Diego, Califomi,.
"Developed Property" means all Taxable Property for winch a building pea=nit was issued
after January 1, 2002, but prior to the Mazch 1st preceding the Fiscal Yeax in which the
Special Tax is being levied.
"Final Map Property" means a single family residential lot created by a Final Subdivision
Map, but winch is not classified as Developed Property..
"Final S bd~ws~on Map means a subdivismn of property creating single family resxdential
buildable lots by recordation of a final subdivision map or parcel map pursuant to the
Subdivision Map Act (Califomi, Government Code Section 66410 et seq.), or recordation of
a condominium plan pursuant to California Civil Code 1352, that creates individual lots for
winch building penmits may be issued without further subdivision and is recorded prior to
March 1 preceding the Fiscal Year in which the Special Tax is being levied.
"Fiscal Year" means the period staffing July 1 and ending on the following June 30.
"Improvement Area No. 2" or "IA No. 2" means Improvement Azea No. 2 of the CFD,
as identified on the boundary map for the CFD.
"Land Use Class" means any of the classes listed in Table 1 or Table 2.
"Landscape Maintenance" means the labor, maw_rial, administration, personnel,
equipment and utilities necessary to maintain landscaped improvements within the public
fight-of-ways, parkways, slopes, wetlands and other public easements throughout the CFD.
"Landscape Maintenance Requirement" means, for any Fiscal Year in winch Special
Taxes are levied, the amount equal to the budgeted costs for Landscape Maintenance
applicable to IA No. 2 for such Fiscal Year.
"Maximum Special Tax" means the maximum Special Tax, determined in accordance with
Section C be/ow, that may be levied in any Fiscal Year on any Assessor's Parcel of Taxable
Property.
MuniFinancial Page C-10 Civy of Chula V-ufa
__r~___ ~"~ Community Facilities District No. 0SM
CHUbs, VISTA
'"Multi-Family Property" means all Assessor's Parcels of Developed Property for which a
building permit has been issued for a residential structure consisting of two or more
residential units thzt share common wails, including, but not limited to, duplexes, triplexes,
town.homes, condomim'ums, and apartment units.
"Non-Residential Property" means all Assessor's Parcels of Developed Property for
which a building permit(s) has been issued for a structttre or structures for non-residential
use.
"Operating Fund" means a fund that shall be mai~r, lned for IA No. 2 for each Fiscal Year
to pay for Landscape Maintenance and Storm Water Quality Maintenance and
Administrative Expenses.
"Operating Fund Requirement" means, for any Fiscal Year, the sum of the applicable
Landscape Maintenance Requirement and the applicable Storm Water Quality Maintenance
Requirement.
"Other Taxable Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property, Final Map Property, or Taxable Property Owners Association
Property.
"Property Owner Association Property" means any property within the bound,ties IA
No. 2 of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument
recorded with the County Recorder to, a property owner association, inducting any master or
sub-association.
"Proportionately" means in a manner such that the ratio of the actual Special Tax levy to
the Maximum Special Tax is equal for all Assessor's Parcels of Taxable Property within each
Land Use Class.
"Public Property" means any property within the boundaries of IA No. 2 of the CFD that
is, at the time of the CFI) formation, expected m be used for any public purpose and is
owned by or dedicated to the federal government, the State, the County, the City or any
other public agency.
"Reserve Fund" means a fund that shall be rnai~tained for IA No. 2 for each Fiscal Year to
provide necessary cash flow for the first six months of each Fiscal Year, reserve capital to
cover monitoring, maintenance and repair cost overruns and delinquencies in the payment of
Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies.
"Reserve Fund Requirement" means an mount equal to up to 100% of the Operating
Fund Requirement for any Fiscal Year.
"Residential Property" means all Assessor's Parcels of Developed Property for which a
building permit(s) has been issued for purposes of constructing one residential dwelling unit.
MuniFinancial Page C-I 1 City of C~uia Vista
[ ,r"~/2~ CommunityFacilitiesDistricrNo. 08M
CHU~A VISTA
"Special Tax" me,ms the Special Tax levied pursuant to the provisions of sections C and D
below in each Fiscal Year on each Assessor's Parcel of Developed Property and
Undeveloped Propert~ in IA No. 2 to fund the Special Tax Requitement~
"Special Tax Requirement" means that amount requi~ed in any Fiscal Year for IA No. 2
to: (a) (i) pay the Landscape Maintenance Requirement; (h) pay the Storm Water Quality
Maintenance Requirement; ('Ri) pay reasonable Adm~nlstmtive F_.xpenses; (iv) pay any
amounts requ~ed to establish or replenish the Rese~e Fund to the Reserve Fund
Requirement; (v) pay for reasonably anticipated d~llnquent Special Taxes based on the
delinquency rate for Special Taxes levied in the previous Fiscal Ye'~,, less Co) a cxedit for
funds available to reduce the annual Special Tax levy, including the excess, if any, in the
Reserve Fund above the Reserve Fund Requkement.
"Square Foot" means the square footage as shown on an Assessor's Parcel's building
permit of Residential Property or Mu/ti-Family Property, exduding garages or other
structures not used as living space.
"State" means the State of California.
"Storm Water Quality Maintenance" means the maintenance of detention basins, stoma
drains, catch basin inserts, hydrodynamic devices, infiltration basins, and all other facilities
that are clirecfly related to stoma water quality control throughout IA No. 2.
"Storm Water Quality Maintenance Requirement" means for any Fiscal Year an
amount equal to the budgeted costs for Stoma Water Quality Maintenance applicable to IA
No. 2 for the current Fiscal Year in which Spec/al Taxes are levied.
-- "Taxable Property" means all of the Assessor's Parcels w/thin the boundaries of IA No. 2
of the CFD that are not exempt from the Spec/al Tax pursuant to law or as defined below.
"Tax-Exempt Property" means an Assessor's Parcel not subject to the Special Tax. Tax-
Exempt Property includes: (i) Public Property, or (ii) Property Owner Association Property,
or (ih) Assessor's Parcels defined as Community Purpose Facility Property that is owned by a
non-profit organization and has provided proof to the City prior to the March 1st preceding
the Fiscal Year in which the Special Tax is being levied of the organization's non-profit
stares, or (v) Assessor's Parcels with public or utility easements m~kln§ impractical their
utilization for other than the purposes set forth in the easement.
"Taxable Property Owner Association Property" means all Association Property which
is not exempt from the Special Tax pursuant to Section E below.
"Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property.
MuniFinancial Page C-12 City of Chula Vista
~i /~(~ 4~~ Community Facilities District No. 08M
CHU[A VISTA
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year using the definitions above, all Taxable Property wi*bin IA No. 2 of the
CFD shall be classified as Developed Property, Final Map Property or Undeveloped
Property, and shall be subject to Special Taxes pursuant to Sections C and D below.
Developed Property shall be further assigned to a Land Use Class as specified in Table 1.
Undeveloped Property shall be further assigned to a Land Use Class as specified in Table 2.
Assessor's Parcels of CPF Property not classified as exempt in accordance with Section E
below shall be taxed as Non-Residential Property when such A '
ssessor s Parcel is classified as
Developed Property. If the Assessor's Parcel is Undeveloped it shall be classified as Other
Taxable Property.
C. MAXIMUM SPECIAL TAX RATE
1. Developed Property
TABLE 1
Maximum Special Tax for Developed Property
Community Facilities District No. 0SM
Improvement Area No. 2
Land Storm Maximum
Use Description Landscape Water Quality Special Tax
Class Maintenance Maintenance
1 Residential Property $0.168 per Sq Ft $0.012 per Sq Ft $0.180 per Sq Ft
.._ 2 tv[vid-Family Property $0.168 per Sq Ft $0.012 per Sq Ft $0.180 per Sq Ft
3 Non-Residential Properv/ $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
Multiple Land Use Classes
In some instances an Assessor's Parcel of Developed Property may contain more
than one Land Use Class. The Mwdm~ma Special Tax that may be lev/ed on such an
Assessor's Parcel shall be the sum of the Maximum Special Tax levies that may be
levied on all Land Use Classes located on that Assessor's Parcel. The CFD
Administrator's shall determine the allocation to each Land Use CLass.
Muni£inancial Page C-13 Ciey of Chula Vista
Community Facilities District No. 08M
-- CHULA VISTA
2. Undeveloped Property
TABLE 2
Maximum Special Tax for Undeveloped Property
Community Facilities District No. 08M
Improvement Area No. 2
Land Landscape Sto~ Maximum
Use Description Maintenance Water Quality Special Tax
Class Maintenance
4 Final Map Property $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
5 Other Taxable Property $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
6 Taxable Property Owner $3,475.96 per Acre $251.35 pet Acre $3,727.31 per Acre
Association Property
3. Annual Escalation of Maximum Special Tax
The Maximum Special Tax as shown in the rabies above that may be levied on each
Assessor's Parcel in IA No. 2 shall be increased each Fiscal Year beginning in Fiscal
.. Year 2003-04 and thereafter by a factor equal to the annual percentage change in the
San Diego Metropolitan &tea All Urban Consumer Price Index (All Items).
~- D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2002-03, and for each following Fiscal Year, the Council sh~ll
levy the IA No. 2 Special Tax at the rates established pursuant to steps 1 through 4 below so
that the amount of the Special Tax levied equals the Special Tax Requirement. The Special
Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied proportionately on each Assessor's Parcel of
Developed Property up to 100% of the applicable Maximum Special Tax;
Second: If additional monies are needed to satisfy the Special Tax Requirement after the
first step has been completed, the Spedal Tax shall be levied Proportionately on each
Assessor's Parcel of Final Map Property at up to 100% of the Maximum Special Tax for
Final Map Property;'
Third: If additional monies are needed to satisfy the Special Tax Requirement after the first
two steps have been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Other Taxable Property at up to 100% of the Maximum Spec/al Tax for
Other Taxable Property;
MuniFinancial Page C-14 City of Chula Vista
'~ , Community Facilities District No. 0SM
CHUIA V~'A
Fourth: If additional moneys aze needed to satisfy the Special Tax Requirement after the fi~st
thzee steps have been completed, the Special Tax shall be levied proportionately on each
AsseSsor's Parcel of Taxable Property Owner Association Property at up to 100% of the
applicable Ma~irmxm Special Tax for Taxable Property Owner Association Property.
Notwithstanding the above, under no circumstances will the Special Tax levied against any
Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy
permit for private residential use has been issued be increased by more than ten percent
annually up to the Maximum Special Tax as a consequence of &llnquency or default by the
owner of any other Assessor's Parcel within IA No. 2 of the CFI3.
E. EXEMPTIONS
The CFD Administrator shall classify as exempt property (i) Assessor's Parcels defined as
Public Property, (ii) Assessor's Parcels defined as Community Purpose Facility Property that
are owned by a non-profit organization which has provided proof to the City prior to the
March 1st preceding the Fiscal Year in which the Special Tax is being levied of the
orgamZadon's non-profit stares, and (iii) Assessor's Parcels with public or utility easements
making impractical their utilization for other than the purposes set forth in the easement.
The CFI) Administrator shall classify as exempt property those Assessor's Parcels defined as
Property Owner's Association Property provided that no such classification would reduce
the sum of all taxable Property to less than 124.90 Acres. Assessor's Parcels defined as
Property Owner Association Property that cannot be classified as exempt property will be
classified as Taxable Property Owner Association Property and shall be taxed as part of the
fourth step in Section D.
The CFD Administrator will assign Tax-F~xempt status in the chronological order in which
property becomes exempt.
F. APPEALS
Any landowner or resident who pays the Spe,%! Tax and believes that the amount of the
Special Tax levied on thei~ Assessor's Parcel is in e~or shall first consult with the CFD
Administrator regarding such error. If following such consultation, the CFD _Aclmini~ttator
determines that an error has occurred, the CFD Administrator may amend the amount of the
Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any
by the CFI3 AAm;nistrator, the landowner or resident believes such error still exists, such
person may file a written notice with the City Clerk of the City appealing the mount of the
Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City
Clerk shall forward a copy of such notice to the City Manager who shall establish as part of
the proceedings and administration of the CFI3, a special tl~ee-member Review/Appeal
Committee. The Review/Appeal Committee may establish such procedures, as k deems
necessary to undertake the review of any such appeal. The Review/Appeal Committee shall
interpret this Rate and Method of Apportionment and make determinations relative to the
annual administration of the Special Tax and any landowner or resident appeals, as herein
MuniPinanciat Page C-15 City of Chula Visea
, Community Facilities District No. 08M
CHUIA VISTA
spec/fled. The decision of the Review/Appeal Committee shall be final and binding as to all
persons. LA_ No. 2
G. MANNER OF COl J.F. CTION
Special Taxes levied pursuant to Section D above shall be collected in the same manner and
at the same time as ordiua~ ~/valorem property taxes; provided, however, that the CFI)
_Admini~rlator may directly bill the Special Tax, may collect Special Taxes at a different time
or in a different manner i~ necessary to meet the financial obligations of IA No. 2 of the
CFI) or as otherwise determined appropriate by the CFD Administrator.
H. TERM OF SPECIAL TAX
Taxable Property in IA No. 2 of the CFI3 shall remain subject to the Spec/al Tax in perpetuity.
MuniFinanclal Page C-16 City of Chula Vista
Community Facilities District No. 0SM
,
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA, CALIFORNIA, FORM1NG AND
ESTABLISHING COMMUNITY FACILITIES DISTRICT NO.
08M (VILLAGE 6 - MCMILLIN OTAY RANCH AND OTAY
RANCH COMPANY) AND AUTHORIZING SUBMITTAL OF
LEVY OF SPECIAL TAXES TO THE QUALIFIED ELECTORS
WHEREAS, a public hearing has been held and concluded, and the City Council of the
City of Chula Vista (the "City Council"), now desires to proceed with the establishment of a
community facilities district and to designate two improvement areas therein, pursuant to the
terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5,
Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act") and the
City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers
reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of
the State of California (the "Ordinance") (the Act and the Ordinance may be referred to
collectively as the "Community Facilities District Law"). Such Community Facilities District
shall hereinafter be referred to as Community Facilities District No. 08M (Village 6 - McMillin
Otay Ranch and Otay Ranch Company) (the "District"); and,
WHEREAS, notice of a public hearing relating to the establishment of the District, the
extent of the District, the designation of the Improvement Areas within the District, the financing
of certain types of services and all other related matters has been given, and a Community
Facilities District Report, as ordered by this City Council, has been presented to this City
Council and has been made a part of the record of the hearing to establish such District; and,
WHEREAS, following the opening of the public hearing on October 8, 2002, the City
Council proposed to modify Resolution No. 2002-319, the Resolution of Intention to form the
District, in a way that will increase the probable special tax to be paid by the owners of certain
lots or parcels within the District and the City Council directed that a report be prepared that
includes an analysis of the impact of the proposed modifications on the probable special tax to
be paid by the owners of such lots or parcels in the District (the "Supplemental Report"); and
WHEREAS, the public hearing was continued to permit the preparation of the
Supplemental Report; and
WHEREAS, the Supplemental Report has been presented to this City Council and has
also been made a part of the record of the hearing to establish such District; and
WHEREAS, all communications relating to the establishment of the District, the
designation of the Improvement Areas, the proposed services and the rates and methods of
apportionment of the special tax proposed to be levied within each Improvement Area have been
presented, and it has further been determined that a majority protest as defined by law has not
been received against these proceedings or the levy of the special tax within either Improvement
Area; and
1
J:XAtIorney\RESO\CFD 08M formation.doc
WHEREAS, inasmuch as there have been less than twelve (12) registered voters residing
within the territory of each Improvement Area of the District for at least the preceding ninety
(90) days, the authorization to levy special taxes within each Improvement Area of the District
shall be submitted to the landowners of each such Improvement Area, such landowners being the
qualified electors as authorized by law.
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
SECTION 1. Recitals. The above recitals are all true and correct.
SECTION 2. Determinations. It is hereby determined by this City Council that:
A. All prior proceedings pertaining to the formation of the District and
designation of the improvement Areas were valid and taken in conformity
with the requirements of the law, and specifically the provisions of the
Community Facilities District Law, and that this finding and determination
is made pursuant to the provisions of Government Code Section 53325.1.
B. The written protests received, if any, do not represent a majority protest as
defined by the applicable provisions of the Community Facilities District
Law and, therefore, the special tax proposed to be levied within each
Improvement Area of the District has not been precluded by majority
protest pursuant to Section 53324 of the Government Code of the State of
California.
C. The District as proposed conforms with the City of Chula Vista Statement
of Goals and Policies Regarding the Establishment of Community
Facilities Districts (the "Goals and Policies"), as amended.
D. Less than twelve (12) registered voters have resided within the territory of
each Improvement Area within the District for each of the ninety (90) days
preceding the close of the public hearing, therefore, pursuant to the Act the
qualified electors of each of the Improvement Areas within the District
shall be the landowners of such Improvement Area as such term is defined
in Government Code Section 53317(0 and each such landowner who is
the owner of record as of the close of the public hearing, or the authorized
representative thereof, shall have one vote for each acre or portion of an
acre of land that she or he owns within such Improvement Area.
E. The time limit specified by the Community Facilities District Law for
conducting an election to submit the levy of the special taxes to the
qualified electors of each Improvement Area of the District and the
requirements for impartial analysis and ballot arguments have been
waived with the unanimous consent of the qualified electors of each such
Improvement Area.
2
F. The City Clerk, acting as the election official, has consented to conducting
any required election on a date which is less than 125 days following the
adoption of any resolution forming and establishing the District.
SECTION 3. Community Facilities District Report. The Community Facilities District
Report, as now submitted and as supplemented by the Supplemental Report, shall stand as the
Community Facilities District Report for all future proceedings and all terms and contents are
approved as set forth therein.
SECTION 4. Name of District. This legislative body does hereby establish and declare
the formation of the Community Facilities District known and designated as "COMMUNITY
FACILITIES DISTRICT NO. 08M (VILLAGE 6 - MCMILLIN OTAY RANCH AND OTAY
RANCH COMPANY)."
SECTION 5. Boundaries of the District and the Improvement Areas. The boundaries of
the District and each of the Improvement Areas are generally described as follows:
All property within the boundaries of Community Facilities District No. 08M (Village
6 - McMillin Otay Ranch and Otay Ranch Company), as shown on a boundary map as
previously approved by this legislative body, such map designated by the name of this
Community Facilities District, a copy of which is on file in the Office of the City Clerk.
The boundary map of the proposed District has been filed pursuant to Sections 3111 and
3113 of the Streets and Highways Code of the State of California in the Office of the
County Recorder of the County of San Diego, at Page of Book of the
Book of Maps of Assessment and Community Facilities Districts for such County.
SECTION 6. Designation of Improvement Areas. For purposes of financing of, or
contributing to the financing of the types of services described in Section 7 below, this City
Council, acting pursuant to Government Code Section 53350, hereby designates portions of the
District as the following Improvement Areas as shown on the Boundary Map of the District:
IMPROVEMENT AREA NO. 1
IMPROVEMENT AREA NO. 2
SECTION 7. Types of Services. It is the intention of this City Council to finance certain
services that are in addition to those provided in or required for the territory within the District
and will not be replacing services already available. A general description of the services to be
provided is as follows:
The maintenance of (a) landscaped areas within the public rights-of-
ways and other public easements throughout the District and (b)
facilities that are directly related to storm water quality control
throughout the District.
Such maintenance shall include, but not be limited to, the provision of all labor, material,
administration, personnel, equipment and utilities necessary to maintain such landscaped areas
and such storm water quality control facilities.
It is the intention of the City Council to finance all direct, administrative and incidental
annual costs and expenses necessary to provide the authorized maintenance and services.
For a full and complete description of the public services, reference is made to the final
Community Facilities District Report, a copy of which is on file in the Office of the City Clerk.
For all particulars, reference is made to such Community Facilities District Report.
SECTION 8. Special Tax. Except where funds are otherwise available special taxes,
secured by recordation of a continuing lien against all non-exempt real property in the respective
Improvement Areas of the District, are hereby authorized, subject to voter approval, to be levied
annually within the boundaries of such District. Under no cimumstances will the special tax
authorized to be levied within an Improvement Area be increased as a consequence of
delinquency or default by the owner of any other parcel or parcels used for private residential
purposes and located within such Improvement Area by more than 10 pement. For further
particulars as to the rate and method of apportionment of the special tax proposed to be levied
within Improvement Area No. 1, reference is made to the attached and incorporated Exhibit "A",
which sets forth in sufficient detail the method of apportionment to allow each landowner or
resident within such Improvement Area to clearly estimate the maximum amount that such
person will have to pay for such services. For further particulars as to the rate and method of
apportionment of the special tax proposed to be levied within Improvement Area No. 2,
reference is made to the attached and incorporated Exhibit "B", which sets forth in sufficient
detail the method of apportionment to allow each landowner or resident within such
Improvement Area to clearly estimate the maximum amount that such person will have to pay
for such services.
The special taxes herein authorized shall be collected in the same manner as ad valorem
property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any
case of delinquency, as applicable for ad valorem taxes; however, as applicable, this legislative
body may, by resolution, establish and adopt an alternate or supplemental procedure as
necessary. Any special taxes that may not be collected on the County tax roll shall be collected
through a direct billing procedure by the Treasurer of the City of Chula Vista, acting for and on
behalf of the District.
Upon recordation of a Notice of Special Tax Lien pursuant to Section 3114.5 of the
Streets and Highways Code of the State of California, a continuing lien to secure each levy of the
special tax shall attach to all non-exempt real property in the District and this lien shall continue
m force and effect until the special tax obligation is prepaid and permanently satisfied and the
lien canceled in accordance with law or until collection of the tax by the legislative body ceases.
SECTION 9. _Special Tax Accountability Measures. Pursuant to and in compliance with
the provisions of Government Code Section 50075.1, this City Council hereby establishes the
4
following accountability measures pertaining to the levy by the District of the special taxes
described in Section 8 above:
A. Each such special tax shall be levied for the specific purposes set forth in Section
8. above.
B. The proceeds of the levy of each such special tax shall be applied only to the
specific applicable purposes set forth in Section 8. above.
C. The District shall establish a separate account into which the proceeds of each
such special tax shall be deposited.
D. The City Manager or his or her designee, acting for and on behalf of the District,
shall annually file a report with the City Council as required pursuant to
Government Code Section 50075.3.
SECTION 8. Preparation of Annual Tax Roll. The name, address and telephone
number of the office, department or bureau which will be responsible for preparing annually a
current roll of special tax levy obligations by Assessor's parcel number and which shall be
responsible for estimating future special tax levies pursuant to Section 53340.1 of the
Government Code of the State of California, are as follows:
Engineering Department
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 92010
(619) 691-5021
SECTION 10. Election. This legislative body herewith submits the levy of the special
taxes to the qualified electors of each Improvement Area within the District, such electors being
the landowners within each such Improvement Area with each landowner having one (1) vote for
each acre or portion thereof of land which he or she owns within each such Improvement Area.
This legislative body hereby further directs that the separate ballot propositions relating
to the levy of the above referenced special taxes within each Improvement Area be combined
and consolidated with the proposition set forth in Section 11 below relating to the establishment
of an appropriations limit for the District.
The propositions related to the levy of the special taxes shall, together with a proposition
to establish an appropriations limit for the District, shall be submitted to the qualified voters at a
special election to be held on (a) August 13, 2002 immediately following the adoption of this
resolution or (b) such other date as the qualified electors and the City Clerk may mutually agree
and such election shall be a special election to be conducted by the City Clerk (hereinafter
referred to as the "Election Official"). If either or both of the propositions for the levy of the
special taxes receive the approval of more than two-thirds (2/3) of the votes cast on the
proposition, the special tax thereby approved may be levied as provided for in this Resolution.
SECTION 11. Ballot Proposals. The ballot proposals to be submitted to the qualified
voters at the election shall generally be as follows:
IMPROVEMENT AREA NO. 1
PROPOSITION A
Shall the City of Chula Vista Community Facilities District No. 08M (Village 6 -
McMillin Otay Ranch and Otay Ranch Company), subject to accountability
measures set forth in Resolution No. , levy a special tax throughout
Improvement Area No. 1 of such district pursuant to the rate and method of
apportionment thereof set forth in such resolution (the "Rate and Method") for the
purposes of financing the Special Tax Requirement as defined in the Rate and
Method?
IMPROVEMENT AREA NO. 2
PROPOSITION B
Shall the City of Chula Vista Community Facilities District No. 08M (Village 6 -
McMillin Otay Ranch and Otay Ranch Company), subject to accountability
measures set forth in Resolution No. , levy a special tax throughout
Improvement Area No. 2 of such district pursuant to the rate and method of
apportionment thereof set forth in such resolution (the "Rate and Method") for the
purposes of financing the Special Tax Requirement as defined in the Rate and
Method?
IMPROVEMENT AREA NOS. 1 AND 2
PROPOSITION C
Shall the City of Chula Vista Community Facilities District No. 08M (Village 6 -
McMillin Otay Ranch and Otay Ranch Company) establish an Article XIIIB
appropriations limit equal to $2,000,0007
SECTION 12. Vote. The appropriate mark placed in the voting square after the word
"YES" shall be counted in favor of the adoption of the proposition, and the appropriate mark
placed in the voting square after the word "NO" in the manner as authorized, shall be counted
against the adoption of such proposition.
SECTION 13. Election Procedure. The Election Official is hereby authorized to take
any and all steps necessary for holding the above election. The Election Official shall perform
and render all services and proceedings incidental to and connected with the conduct of the
election, including but not limited to, the following:
6
1. Prepare and furnish to the necessary election supplies for the conduct of the
election.
2. Cause to be printed the requisite number of official ballots, tally sheets and other
necessary forms.
3. Furnish official ballots for the qualified electors of each Improvement Area of the
District.
4. Cause the official ballots to be presented to the qualified electors, as required by
law.
5. Receive the returns of the election and supplies.
6. Sort and assemble the election material and supplies in preparation for the
canvassing of the returns.
7. Canvass the returns of the election.
8. Furnish a tabulation of the number of votes given in the election.
9. Conduct and handle all other matters relating to the proceedings and conduct of
the election in the manner and form as required by law.
Presented by Approved as to form by:
John P. Lippitt John Kaheny
Director of Public Works City Attorney
7
Exhibit "A"
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 08M
RATE AND METHOD OF APPORTIONMENT FOR
IMPROVEMENT AREA NO. 1
(Otay Ranch Village 6)
A Special Tax of Community Facilities District No. 08M (Otay Ranch Village 6) of the City of Chula
Vista ("CFD") shall be levied on all Assessor's Parcels in Improvement Area No. 1 of the CFD and
collected each Fiscal Year commencing in Fiscal Year 2002-03 in an amount determined through the
application of the rate and method of apportionment of the Special Tax set forth below. All of the
real property in the CFD, unless exempted by law or by the provisions hereof, shall be taxed for the
purposes, to the extent and in the manner herein provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's
Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area
shown on the applicable Final Subdivision Map, other final map, other parcel map, other
condominium plan, or functionally equivalent map or instrument recorded in the Office of
the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage
multiplied by 43,560.
"Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter
2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California.
"Administrative Expenses" means the actual or estimated costs incurred by the City,
acting for and on behalf of the CFD as the administrator thereof, to determine, levy and
collect the Special Taxes, including salaries of City employees and a proportionate amount of
the City's general administrative overhead related thereto, and the fees of consultants and
legal counsel providing services related to the administration of the CFD; the costs of
collecting installments of the Special Taxes; and any other costs required to administer IA
No. 1 of the CFD as determ/ned by the City.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an
assigned assessor's parcel number.
"Assessor's Parcel Map" means an official map of the Assessor of the County designating
parcels by assessor's parcel number.
"CFD Administrator" means an official of the City, or designee thereof, respbnsible for
determining the Special Tax Requirement and providing for the levy and collection of the
Special Taxes.
"CFD" means Community Facilities District No. 08M of the City of Chnla Vista.
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillin) Page I
"City" means the City of Chula Vista.
"City Clerk" means the City Clerk for the City of Chula Vista or his or her designee.
"City Manager" means the City Manager for the City of Chula Vista or his or her designee.
"Community Purpose Facility Property" or "CPF Property" means all Assessor's
Parcels which are classified as community purpose facilities and meet the requirements of
City of Chula Vista Ordinance No. 2452.
"Council" means the City Council of the City of Chula Vista, acting as the legislative body
of the CFD.
"County" means the County of San Diego, California.
"Developed Property" means all Taxable Property for which a building permit was issued
after January 1, 2002, but prior to the March 1st preceding the Fiscal Year in which the
Special Tax is being levied.
"Final Map Property" means a single family residential lot created by a Final Subdivision
Map, but which is not dassified as Developed Property.
"Final Subdivision Map" means a subdivision of property creating single family residential
buildable lots by recordation of a final subdivision map or parcel map pursuant to the
Subdivision Map Act (California Government Code Section 66410 et seq.), or recordation of
a condominium plan pursuant to California Civil Code 1352, that creates individual lots for
which building permits may be issued without further subdivision and is recorded prior to
March 1 preceding the Fiscal Year in which the Special Tax is being levied.
"Fiscal Year" means the period starting July 1 and ending on the following June 30.
"Improvement Area No. 1" or "lA No. 1" means Improvement Area No. 1 of the CFD,
as identified on the boundary map for the CFD.
"Land Use Class" means any of the classes listed in Table 1 or Table 2.
"Landscape Maintenance" means the labor, material, administration, personnel,
equipment and utilities necessary to maintain landscaped improvements within the public
right-of-ways, parkways, slopes, wetlands and other public easements throughout the CFD.
"Landscape Maintenance Requirement" means, for any Fiscal Year in which Special
Taxes are levied, the amount equal to the budgeted costs for Landscape Maintenance
applicable to IA No. 1 for such Fiscal Year.
"Maximum Special Tax" means the maximum Special Tax, determined in accordance
with Section C below, that may be levied in any Fiscal Year on any Assessor's Parcel of
Taxable Property.
City of Chula Vista 8/9/2002
CFD 08M, IA1 Village 6 (McMillin) Page 2
"Multi-Family Property" means all Assessor's Parcels of Developed Property for which a
building permit has been issued for a residential structure consisting of two or more
residential units that share common walls, including, but not limited to, duplexes, triplexes,
townhomes, condorninituns, and apartment tmits.
"Non-Residential Property" means all Assessor's Parcels of Developed Property for
which a building permit(s) has been issued for a structure or structures for non-residential
use. Including lot S-2 and CPF-2.
"Operating Fund" means a fund that shall be maintained for IA No. 1 for each Fiscal Year
to pay for Landscape Maintenance and Storm Water Quality Maintenance and
Administrative Expenses.
"Operating Fund Requirement" means, for any Fiscal Year, the sum of the applicable
Landscape Maintenance Requirement and the applicable Storm Water Quality Maintenance
Requirement.
"Other Taxable Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property, Final Map Property, or Taxable Property Owners Association
Property.
"Property Owner Association Property" means any property within the boundaries IA
No. 1 of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument
recorded with the County Recorder to, a property owner association, including any master or
sub-association.
"Proportionately" means in a manner such that the ratio of the actual Special Tax levy to
the Maximum Special Tax is equal for all Assessor's Parcels of Taxable Property within each
Land Use Class.
"Public Property" means any property within the boundaries of IA No. 1 of the CFD that
is, at the time of the CFD formation, expected to be used for any public purpose and is
owned by or dedicated to the federal government, the State, the County, the City or any
other public agency.
"Reserve Fund" means a fund that shall be maintained for IA No. 1 for each Fiscal Year to
provide necessary cash flow for the first six months of each Fiscal Year, reserve capital to
cover monitoring, maintenance and repair cost overruns and delinquencies in the payment of
Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies.
"Reserve Fund Requirement" means an amount equal to up to 100% of the Operating
Fund Requirement for any Fiscal Year.
"Residential Property" means all Assessor's Parcels of Developed Property for which a
building permit(s) has been issued for purposes of constructing one residential dwelling unit.
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillitO Page 3
"Special Tax" means the Special Tax levied pursuant to the provisions of sections C and D
below in each Fiscal Year on each Assessor's Parcel of Developed Property and
Undeveloped Property in LA No. I to fund the Special Tax Requirement.
"Special Tax Requirement" means that amount required in any Fiscal Year for IA No. 1
to: (a) (i) pay the Landscape Maintenance Requirement; (ii) pay the Storm Water Quality
Maintenance Requirement; (iii) pay reasonable Administrative Expenses; (iv) pay any
amounts required to establish or replenish the Reserve Fund to the Reserve Fund
Requirement; (v) pay for reasonably anticipated deiinquent Special Taxes based on the
delinquency rate for Special Taxes levied in the previous Fiscal Year; less (b) a credk for
funds available to reduce the annual Special Tax levy, including the excess, if any, in the
Reserve Fund above the Reserve Fund Requirement.
"Square Foot" means the square footage as shown on an Assessor's Parcel's building
permit of Residential Property or Multi-Family Property, excluding garages or other
structures not used as living space.
"State" means the State of California.
"Storm Water Quality Maintenance" means the maintenance of detention basins, storm
drains, catch basin inserts, hydrodynamic devices, infiltration basins, and all other facilities
that are directly related to storm water quality control throughout LA No. 1.
"Storm Water Quality Maintenance Requirement" means for any Fiscal Year an amount
equal to the budgeted costs for Storm Water Quality Maintenance applicable to LA No. 1 fdr
the current Fiscal Year in which Special Taxes are levied.
"Taxable Property" means all of the Assessor's Parcels within the boundaries of LA No. 1
of the CFD that are not exempt from the Special Tax pursuant to law or as defined below.
"Tax-Exempt Property" means an Assessor's Parcel not subject to the Special Tax. Tax-
Exempt Property includes: (i) Public Property, or (ii) Property Owner Association Property,
or (iii) Assessor's Parcels with public or utility easements making impractical their utilization
for other than the purposes set forth in the easement.
"Taxable Property Owner Association Property" means all Association Property
which is not exempt from the Special Tax pursuant to Section E below.
"Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property.
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year using the definitions above, all Taxable Property within IA No. 1 of the
CFD shall be classified as Developed Property, Final Map Property or Undeveloped
Property, and shall be subject to Special Taxes pursuant to Sections C and D below.
Developed Property shall be further assigned to a Land Use Class as specified in Table 1.
Undeveloped Property shall be further assigned to a Land Use Class as specified in Table 2.
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillin) Page 4
C. MAXIMUM SPECIAL TAX RATE
1. Developed Property
TABLE 1
Maximum Special Tax for Developed Property
Community Facilities District No. 08M
Improvement Area No. 1
Land Storm Maximum
Use Description Landscape Water Quality Special Tax
Class Maintenance Maintenance
1 Residential Property $0.170 per Sq Ft $0.038 per Sq Ft $0.208 per Sq Ft
2 Multi-Family Property $0.170 per Sq Ft $0.038 per Sq Ft $0.208 per Sq Ft
3 Non-Residential Property $2,926.95 per Acre $659.35 per Acre $3,586.30 per Acre
Multiple Land Use Classes
In some instances an Assessor's Parcel of Developed Property may contain more
than one Land Use Class. The Maximum Special Tax that may be levied on an
Assessor's Parcel shall be the sum of the Maximum Special Tax leviel that may be
levied on all Land Use Classes located on that Assessor's Parcel. The CFD
Administrator's shall determine the allocation to each Land Use Class.
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillit0 Page 5
2. Undeveloped Property
TABLE 2
Maximum Special Tax for Undeveloped Property
Community Facilities District No. 08M
Improvement Area No. 1
Land Landscape Storm Maximum
Use Description Maintenance Water Quality Special Tax
Class Maintenance
4 Final Map Property $2,926.95 per Acre $659.35 per Acre $3,586.30 per Acre
5 Other Taxable Property $2,926.95 per Acre $659.35 per Acre $3,586.30 per Acre
6 Taxable Property Owner $2,926.95 per Acre $659.35 per Acre $3,586.30 per Acre
Association Property
3. Annual Escalation of Maximum Special Tax
The Maximum Special Tax as shown in the tables above that may be levied on each
Assessor's Parcel in IA No. 1 shall be increased each Fiscal Year beginning in Fiscal
Year 2003-04 and thereafter by a factor equal to the annual percentage change in the
San Diego Metropolitan Area All Urban Consumer Price Index (All Items).
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Conmaencing with Fiscal Year 2002-03, and for each following Fiscal Year, the Council shall
levy the IA No. 1 Special Tax at the rates established pursuant to steps 1 through 4 below so
that the amount of the Special Tax levied equals the Special Tax Requirement. The Special
Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied proportionately on each Assessor's Parcel of
Developed Property up to 100% of the applicable Maximum Special Tax;
Second: If additional monies are needed to satisfy the Special Tax Requirement after the
first step has been completed, the Special Tax shall be levied Proportionateiy on each
Assessor's Parcel of Final Map Property at up to 100% of the Maximum Special Tax for
Final Map Property;
Third: If additional monies are needed to satisfy the Special Tax Requirement after the first
two steps have been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Other Taxable Property at up to 100% of the Maximum Special Tax for
Other Taxable Property;
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillin) Page 6
Fourth: If additional moneys are needed to satisfy the Special Tax Requirement after the first
three steps have been completed, the Special Tax shall be levied propo~onately on each
Assessor's Parcel of Taxable Property Owner Association Property at up to 100% of the
Maximum Special Tax for Taxable Property Owner Association Property.
Notwithstanding the above, under no circumstances will the Special Tax levied against any
Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy
permit for private residential use has been issued be increased by more than ten percent
annually up to the Maximum Special Tax as a consequence of delinquency or default by the
owner of any other Assessor's Parcel within IA No. 1 of the CFD.
E. EXEMPTIONS
The CFD Administrator shall classify as exempt property (i) Assessor's Parcels defined as
Public Property, and (ii) Assessor's Parcels with public or utility easements making
impractical their utilization for other than the purposes set forth in the easement.
The CFD Administrator shall classify as exempt property those Assessor's Parcels defined as
Property Owner's Association Property provided that no such classification would reduce
the sum of all taxable Property to less than 128.11 Acres. Assessor's Parcels defined as
Property Owner Association Property that cannot be classified as exempt property will be
classified as Taxable Property Owner Association Property and shall be taxed as part of the
fourth step in Section D.
The CFD Administrator will assign Tax-Exempt status in the chronological order in which
property becomes exempt.
F. APPEALS
Any landowner or resident who pays the Special Tax and believes that the amount of the
Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD
Administrator regarding such error. If following such consultation, the CFD Administrator
determines that an error has occurred, the CFD Administrator may amend the amount of the
Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any
by the CFD Administrator, the landowner or resident believes such error still exists, such
person may file a written notice with the City Clerk of the City appealing the amount of the
Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City
Clerk shall forward a copy of such notice to the City Manager who shall establish as part of
the proceedings and administration of the CFD, a special three-member Review/Appeal
Committee. The Review/Appeal Committee may establish such procedures, as it deems
necessary to undertake the review of any such appeal. The Review/Appeal Committee shall
interpret this Rate and Method of Apportionment and make determinations relative to the
annual administration of the Special Tax and any landowner or resident appeals, as herein
specified. The decision of the Review/Appeal Committee shall be final and binding as to all
persons.
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMilli~O Page 7
G. MANNER OF COLLECTION
Special Taxes levied pursuant to Section D above shall be collected in the same manner and
at the same time as ordinary ad va/oron property taxes; provided, however, that the CFD
Administrator may directly bill the Special Tax, may collect Special Taxes at a different time
or in a different manner if necessary to meet the £mancial obligations of IA No. 1 of the
CF1) or as otherwise determined appropriate by the CFD Administrator.
H. TERM OF SPECIAL TAX
Taxable Property in IA No. 1 of the CFD shall remain subject to the Special Tax in perpetuity,
J:\Engineer\LANDDEV\CFD's\Village 6- MaintenanceMRlvlA McMillln IA 1 for ROI.doc
City. of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillin) Page 8
Exhibit "B"
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 0SM
RATE AND METHOD OF APPORTIONMENT FOR
IMPROVEMENT AREA 'NO. 2
(Otay Ranch Village 6)
A Special Tax of Community Facilities District No. 08M (Village 6) of the City of Chula Vista
("CFD") shall be levied on all Assessor's Parcels in Improvement Area No. 2 of the CFD and
collected each Fiscal Year commencing in Fiscal Year 2002-03 in an amount determined through the
application of the rate and method of apportionment of the Special Tax set forth below. All of the
real property in the CFD, unless exempted by law or by the provisions hereof, shall be taxed for the
purposes, to the extent and in the manner herein provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's
Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area
shown on the applicable Final Subdivision Map, other final map, other parcel map, other
condominium plan, or functionally equivalent map or instrument recorded in the Office of
the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage
multiplied by 43,560.
"Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter
2.5, Part l, Division 2 of Title 5 of the Government Code of the State of California.
"Administrative Expenses" means the actual or estimated costs incurred by the City,
acting for and on behalf of the CFD as the administrator thereof, to determine, levy and
collect the Special Taxes, including salaries of City employees and a proportionate amount of
the City's general administrative overhead related thereto, and the fees of consultants and
legal counsel providing services related to the administration of the CFD; the costs of
collecting installments of the Special Taxes; and any other costs required to administer IA
No. 2 of the CFD as determined by the City.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an
assigned assessor's parcel number.
"Assessor's Parcel Map" means an official map of the Assessor of the County designating
parcels by assessor's parcel number.
"CFD Administrator" means an official of the City, or designee thereof, responsible for
determining the Special Tax Requirement and providing for the levy and collection of the
Special Taxes.
"CFD" means Community Facilities District No. 08M of the City of Chula Vista.
City of Chula Vista 10/29/2002
CFD 08M, IA2 Village 6 (Otay Ranch Co.) Page 1
"City" means the City of Chula Vista.
"City Clerk" means the City Clerk for the City of Chula Vista or his or her designee.
"City Manager" means the City Manager for the City of Chula Vista or his or her designee.
"Community Purpose Facility Property" or "CPF Property" means all Assessor's
Parcels which are classified as community purpose facilities and meet the requirements of
City of Chula Vista Ordinance No. 2452.
"Council" means the City Council of the City of Chula Vista, acting as the legislative body
of the CFD.
"County" means the County of San Diego, California.
"Developed Property" means all Taxable Property for which a building permit was issued
after January l, 2002, but prior to the March 1st preceding the Fiscal Year in which the
Special Tax is being levied.
"Final Map Property" means a single family residential lot created by a Final Subdivision
Map, but which is not classified as Developed Property.
"Final Subdivision Map" means a subdiv',sion of property creating single family residential
buildable lots by recordation of a final subdivision map or parcel map pursuant to the
Subdivision Map Act (California Government Code Section 66410 et seq.), or recordation of
a condominium plan pursuant to California Civil Code 1352, that creates individual lots for
which building permits may be issued without further subdivision and is recorded prior to
March I preceding the Fiscal Year in which the Special Tax is being levied.
"Fiscal Year" means the period starting July 1 and ending on the following June 30.
"Improvement Area No. 2" or "IA No. 2" means Improvement Area No. 2 of the CFD,
as identified on the boundary map for the CFD.
"Land Use Class" means any of the classes listed in Table 1 or Table 2.
"Landscape Maintenance" means the labor, material, administration, personnel,
equipment and util/ties necessary to maintain landscaped improvements within the public
right-of-ways, parkways, slopes, wetlands and other public easements throughout the CFD.
"Landscape Maintenance Requirement" means, for any Fiscal Year in which Special
Taxes are levied, the amount equal to the budgeted costs for Landscape Maintenance
applicable to IA No. 2 for such Fiscal Year.
"Maximum Special Tax" means the maximum Special Tax, determined in accordance
with Section C below, that may be levied in any Fiscal Year on any Assessor's Parcel of
Taxable Property.
City of Chula Vista 10/29/2002
CFD 08M, IA2 Village 6 (Otay Ranch Co.) Page 2
"Multi-Family Property" means all Assessor's Parcels of Developed Property for which a
building permit has been issued for a residential structure consisting of two or more
residential units that share common walls, including, but not limited to, duplexes, triplexes,
townhomes, condominiums, and apartment unks.
"Non-Residential Property" means all Assessor's Parcels of Developed Property for
which a building permit(s) has been issued for a structure or structures for non-residential
use,
"Operating Fund" means a fired that shall be maintained for IA No. 2 for each Fiscal Year
to pay for Landscape Maintenance and Storm Water Quality Maintenance and
Administrative Expenses.
"Operating Fund Requirement" means, for any Fiscal Year, the sum of the applicable
Landscape Maintenance Requirement and the applicable Storm Water Quality Maintenance
Requirement.
"Other Taxable Property" means, for each Fiscal Year, ail Taxable Property not classified
as Developed Property, Final Map Property, or Taxable Property Owners Assodadon
Property.
"Property Owner Association Property" means any property within the boundaries IA
No. 2 of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument
recorded with the County Recorder to, a property owner association, including any master or
sub-association.
"Proportionately" means in a manner such that the ratio of the actual Special Tax levy to
the Maximum Special Tax is equal for all Assessor's Parcels of Taxable Property within each
Land Use Class.
"Public Property" means any property within the boundaries of IA No. 2 of the CFD that
is, at the time of the CFD formation, expected to be used for any public purpose and is
owned by or dedicated to the federal government, the State, the County, the City or any
other public agency.
"Reserve Fund" means a fund that shall be maintained for IA No. 2 for each Fiscal Year to
provide necessary cash flow for the first six months of each Fiscal Year, reserve capital to
cover monitoring, maintenance and repair cost overruns and delinquencies in the payment of
Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies.
"Reserve Fund Requirement" means an amotmt equal to up to 100% of the Operating
Fund Reqtfirement for any Fiscal Year.
"Residential Property" means all Assessor's Parcels of Developed Property for which a
building permit(s) has been issued for purposes of constructing one residential dwelling unit.
City of Chula Vista 10/29/2002
CFD 0SM, IA2 Village 6 (Otay Ranch Co.) Page 3
.,
"Special Tax" means the Special Tax levied pursuant to the provisions of sections C and D
below in each Fiscal Year on each Assessor's Parcel of Developed Property and
Undeveloped Property in IA No. 2 to fund the Special Tax Requirement.
"Special Tax Requirement" means that amount required in any Fiscal Year for IA No. 2
to: (a) (i) pay the Landscape Maintenance Requirement; Cfi) pay the Storm Water Quality
Maintenance Requirement; (iii) pay reasonable Administrative Expenses; (iv) pay any
amounts required to establish or replenish the Reserve Fund to the Reserve Fund
Requirement; (v) pay for reasonably anticipated delinquent Special Taxes based on the
delinquency rate for Special Taxes levied in the previous Fiscal Year; less (b) a credit for
funds available to reduce the annual Special Tax levy, including the excess, if any, in the
Reserve Fund above the Reserve Fund Requirement.
"Square Foot" means the square footage as shown on an Assessor's Parcel's building
permit of Residential Property or Multi-Family Property, excluding garages or other
structures not used as living space.
"State" means the State of California.
"Storm Water Quality Maintenance" means the maintenance of detention basins, storm
drains, catch basin inserts, hydrodynamic devices, infiltration basins, and all other facilities
that are directly related to storm water quality control throughout IA No. 2.
"Storm Water Quality Maintenance Requirement" means for any Fiscal Year an amount
equal to the budgeted costs for Storm Water Quality Maintenance applicable to IA No. 2 for
the current Fiscal Year in which Special Taxes are levied.
"Taxable Property" means all of the Assessor's Parcels within the boundaries of IA No. 2
of the CFD that are not exempt from the Special Tax pursuant to law or as defined below.
"Tax-Exempt Property" means an Assessor's Parcel not subject to the Special Tax. Tax-
Exempt Property includes: (i) Public Property, or (ii) Property Owner Association Property,
or (iii) Assessor's Parcels defined as Community Purpose Facility Property that is owned by a
non-profit organization and has provided proof to the City prior to the March 1st preceding
the Fiscal Year in which the Special Tax is being levied of the organization's non-profit
status, or (v) Assessor's Parcels with public or utility easements making impractical their
utilization for other than the purposes set forth in the easement.
"Taxable Property Owner Association Property" means all Association Property which
is not exempt from the Special Tax pursuant to Section E below.
"Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property.
City of Chula Vista 10/29/2002
CFD 0SM, IA2 Village 6 (Otay Ranch Co.) Page 4
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year using the definitions above, all Taxable Property within IA No. 2 of the
CFD shall be classified as Developed Property, Final Map Property or Undeveloped
Property, and shall be subject to Special Taxes pursuant to Sections C and D below.
Developed Property shall be further assigned to a Land Use Class as specified in Table 1.
Undeveloped Property shall be further assigned to a Land Use Class as specified in Table 2.
Assessor's Parcels of CPF Property not classified as exempt in accordance with Section E
below shall be taxed as Non-Residential Property when such Assessor's Parcel is classified as
Developed Property. If the Assessor's Parcel is Undeveloped it shall be classified as Other
Taxable Property.
C. MAXIMUM SPECIAL TAX RATE
1. Developed Property
TABLE 1
Maximum Special Tax for Developed Property
Community Facilities District No. 08M
Improvement Area No. 2
Land Storm Maximum
Use Description Landscape Water Quality Special Tax
Class Maintenance Maintenance
1 Residential Property $0.168 per Sq Ft $0.012 per Sq Ft $0.180 per Sq Ft
2 Multi-Family Property $0.168 per Sq Ft $0.012 per Sq Ft $0.180 per Sq Ft
3 Non-Residential Property $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
Multiple Land Use Classes
In some instances an Assessor's Parcel of Developed Property may contain more
than one Land Use Class. The Maximum Special Tax that may be levied on such an
Assessor's Parcel shall be the sum of the Maximum Special Tax levies that may be
levied on all Land Use Classes located on that Assessor's Parcel. The CFD
Administrator's shall determine the allocation to each Land Use Class.
2. Undeveloped Property
TABLE 2
Maximum Special Tax for Undeveloped Property
Community Facilities District No. 08M
Improvement Area No. 2
I Land I I Landscape I Storm I Maximum
City of Chula Vista 10/29/2002
CFD 0SM, IA2 Village 6 (Otay Ranch Co.) Page $
¢
Use Description Maintenance Water Quality Special Tax
21ass Maintenance
4 Final Map Property $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
5 Other Taxable Property $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
6 Taxable Property Owner $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
Association Property
3. Annual Escalation of Maximum Special Tax
The Maximum Special Tax as shown in the tables above that may be levied on each
Assessor's Parcel in IA No. 2 shall be increased each Fiscal Year beginning in Fiscal
Year 2004-05 and thereafter by a factor equal to the annual percentage change in the
San Diego Metropolitan Area All Urban Consumer Price Index (All Items).
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2003-04, and for each following Fiscal Year, the Council shall
levy the IA No. 2 Special Tax at the rates established pursuant to steps 1 through 4 below so
that the amount of the Special Tax levied equals the Special Tax Requirement. The Special
Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied proportionately on each Assessor's Parcel of
Developed Property up to 100% of the applicable Maximum Special Tax;
Second: If additional monies are needed to satisfy the Special Tax Requirement after the
first step has been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Final Map Property at up to 100% of the Maximum Special Tax for
Final Map Property;
Third: If additional monies are needed to satisfy the Special Tax Requirement after the first
two steps have been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Other Taxable Property at up to 100% of the Maximum Special Tax for
Other Taxable Property;
Fourth: If additional moneys are needed to satisfy the Special Tax Requirement after the first
three steps have been completed, the Special Tax shall be levied proportionately on each
Assessor's Parcel of Taxable Property Owner Association Property at up to 100% of the
applicable Maximum Special Tax for Taxable Property Owner Association Property.
Notwithstanding the above, under no circumstances will the Special Tax levied against any
Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy
permit for private residential use has been issued be increased by more than ten percent
annually up to the Maximum Special Tax as a consequence of delinquency or default by the
owner of any other Assessor's Parcel within LA No. 2 of the CFD.
City of Chula Vista 10/29/2002
CFD 08M, IA2 Village 6 (Otay Ranch Co.) Page 6
E. EXEMPTIONS
The CFD Administrator shall classify as exempt property (i) Assessor's Parcels defined as
Public Property, (ii) Assessor's Parcels defined as Community Purpose Facility Property that
are owned by a non-profit organization which has provided proof to the City prior to the
March 1st preceding the Fiscal Year in which the Special Tax is being levied of the
organization's non-profit status, and (iii) Assessor's Parcels with public or utility easements
making impractical their utilization for other than the purposes set forth in the easement.
The CFD Administrator shall classify as exempt property those Assessor's Parcels defined as
Property Owner's Association Property provided that no such classification would reduce
the sum of all taxable Property to less than 124.90 Acres. Assessor's Parcels defined as
Property Owner Association Property that cannot be classified as esempt property will be
classified as Taxable Property Owner Association Property and shall be taxed as part of the
fourth step in Section D.
The CFD Administrator will assign Tax-Exempt status in the chronological order in which
property becomes exempt.
F. APPEALS
Any landowner or resident who pays the Special Tax and believes that the amount of the
Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD
Administrator regarding such error. If following such consultation, the CFD Administrator
determines that an error has occurred, the CFD Administrator may amend the amount of the
Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any
by the CFD Administrator, the landowner or resident believes such error still exists, such
person may file a written notice with the City Clerk of the City appealing the amount of the
Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City
Clerk shall forward a copy of such notice to the City Manager who shall establish as part of
the proceedings and administration of the CFD, a special three-member Review/Appeal
Committee. The Review/Appeal Committee may establish such procedures, as it deems
necessary to undertake the review of any such appeal. The Review/Appeal Committee shall
interpret this Rate and Method of Apportionment and make determinations relative to the
annual administration of the Special Tax and any landowner or resident appeals, as herein
specified. The decision of the Review/Appeal Committee shall be final and binding as to all
persons. IA No. 2
G. MANNER OF COLLECTION
Special Taxes levied pursuant to Section D above shall be collected in the same manner and
at the same time as ordinary ad va/oron property taxes; provided, however, that the CFD
Administrator may directly bill the Special Tax, may collect Special Taxes at a different time
or in a different manner if necessary to meet the financial obligations of IA No. 2 of the
CFD or as otherwise determined appropriate by the CFD Administrator.
City of Chula Vista 10/29/2002
CFD 0SM, IA2 Village 6 (Otay Ranch Co.) Page 7
H. TERM OF SPECIAL TAX
Taxable Property in IA No. 2 of the CFD shall remain subject to the Special Tax in perpetuity.
J:\Attorney\ANN\CFDs\McMillin, Otay Ranch & Otay Ranch Co\Ex. B CFD 08M.doc
City of Chula Vista 10/29/2002
CFD 0SM, 1/12 Village 6 (Otay Ranch Co.} Page 8
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACTING IN ITS CAPACITY AS THE
LEGISLATIVE BODY OF COMMUNITY FACILITIES
DISTRICT NO. 08M (VILLAGE 6 MCMILLIN OTAY
RANCH AND OTAY RANCH COMPANY) DECLARING THE
RESULTS OF A SPECIAL ELECTION 1N SUCH
COMMUNITY FACILITIES DISTRICT
WHEREAS, the City Council of the City of Chula Vista (the "City Council"), has
previously undertaken proceedings to create and did establish a Community Facilities District
and designate two improvement areas therein pursuant to the terms and provisions of the "Mello-
Roos Community Facilities Act of 1982," being Chapter 2.5, Part 1, Division 2, Title 5 of the
Government Code of the State of California (the "Act") and the City of Chula Vista Community
Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista
under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the
"Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community
Facilities District Law"). This Community Facilities District is referred to as Community
Facilities District No. 08M (Village 6 - McMillin Otay Ranch And Otay Ranch Company) (the
"District") and the Improvement Areas are designated as Improvement Area No. 1 and
Improvement Area No. 2; and,
WHEREAS, this City Council did call for and order to be held an election to submit to
the qualified electors of each of the Improvement Areas a proposition relating to the levy of
special taxes within such Improvement Area and a separate proposition relating to the
establishment of an appropriations limit for the District; and,
WHEREAS, at this time said election has been held and the measures voted upon and
each such measure did receive the favorable 2/Ys vote of the qualified electors, and this City
Council desires to declare the results of the election in accordance with the provisions of the
Elections Code of the State of California.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista acting as the legislative body of Community Facilities District No. 08M (Village 6 -
McMillin Otay Ranch and Otay Ranch Company), does hereby resolve, declare, find, determine
and order as follows:
Section 1. The above recitals are all true and correct.
Section 2. This City Council hereby receives and approves the Certificate of Election
Official and Statement of Votes Cast, as submitted by the City Clerk, acting in her capacity as
the Election official, said Statement identifying the measures voted upon and the number of
1
J:\AIIorney\RESO\CFD 08M Declar.doc
votes given for and/or against the measures voted upon. A copy of said Certificate and
Statement is attached hereto, marked Exhibit "A", referenced and so incorporated.
Section 3. The City Clerk is hereby directed, pursuant to the provisions of the
Elections Code of the State of California, to enter in the minutes the results of the election as set
forth in said Statement of Votes Cast.
Presented by: Approved as to form by:
John P. Lippitt John Kaheny
Director of Public Works City Attorney
2
J:\Attorney\RESO\CFD 08M Declar.doc
EXHIBIT "A"
CERTIFICATE OF ELECTION OFFICIAL
AND STATEMENT OF VOTES CAST
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
The undersigned, Election Official of the City of Chula Vista, County of San Diego, State of
California, DOES HEREBY CERTIFY that pursuant to the provisions of Section 53326 of the
Government Code and Division 12, commencing with Section 17000 of the Elections Code of the State
of California, l did canvass the returns of the votes cast at the
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 08M
(VILLAGE 6 - MCMILLIN OTAY RANCH AND OTAY RANCH COMPANY)
SPECIAL ELECTION
in said City, held November 5, 2002.
I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast
in said District in said City, and the whole number of votes cast for the Measures in said District in said
City, and the totals of the respective columns and the totals as shown for the Measures are full, true and
correct.
1. VOTES CAST ON PROPOSITION A: YES
NO
2. VOTES CAST ON PROPOSITION B: YES
NO
3. VOTES CAST ON PROPOSITION C: YES
'NO
WITNESS my hand and Official Seal this day of ,2002.
Susan Bigelow, City Clerk
Election Official
City of Chula Vista
State of California
3
J :\A~torneyXRESO\CFD 08M Declar.doc
ORDINANCE NO.
ORDINANCE OF THE CITY COUNCIL OF THE CiTY OF
CHULA VISTA ACTING AS THE LEGISLATIVE BODY OF
COMMUNITY FACILITIES DISTRICT NO. 08M (VILLAGE
6-MCMILLIN OTAY RANCH AND OTAY RANCH
COMPANY) AUTHORIZING THE LEVY OF A SPECIAL TAX
WITHIN EACH IMPROVEMENT AREA OF SUCH
COMMUNITY FACILITIES DISTRICT
WHEREAS, the City Council of the City of Chula Vista (the "City Council"), has
initiated proceedings, held a public hearing, conducted an election and received a favorable vote
from the qualified electors authorizing the levy of a special taxes in each of the improvement
areas within a community facilities district, all as authorized pursuant to the terms and provisions
of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1. Division 2,
Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista
Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of
Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California
(the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community
Facilities District Law"). This Community Facilities District is designated as Community
Facilities District No. 08m (Village 6 - McMillin Otay Ranch And Otay Ranch Company) (the
"District") and each of the improvement areas are designated as Improvement Area No. 1 and
Improvement Area No. 2.
The City Council of the City of' Chula Vista, California, acting as the legislative body of
Community Facilities District No. 08M (Village 6 - McMillin Otay Ranch and Otay Ranch
Company), does hereby ordain as follows:
SECTION 1. This City Council does, by the passage of this ordinance, authorize the
levy of special taxes within Improvement Area No. 1 pursuant to the Rate and Method of
Apportionment of Special Taxes as set forth in Exhibit "A" attached hereto (the "Improvement
Area No. 1 Special Tax Formula"), referenced and so incorporated.
This City Council does, by the passage of this ordinance, authorize the levy of special
taxes within improvement Area No. 2 pursuant to the Rate and Method of Apportionment of
Special Taxes as set forth in Exhibit "B" attached hereto (the "Improvement Area No. 2 Special
Tax Formula"), referenced and so incorporated.
SECTION 2. This City Council, acting as the legislative body of the Disthct, is hereby
further authorized, by Resolution, to mmually determine the special taxes to be levied within
Improvement Area No. 1 for the then current tax year or future tax years, except that the special
tax to be levied within Improvement Area No. l shall not exceed the maximum special tax
calculated pursuant to the Improvement Area No. 1 Special Tax Formula, but the special tax may
be levied at a lower rate.
Ordinance No.
Page 2
This City Council, acting as the legislative body of the District, is hereby further
authorized, by Resolution, to annually determine the special taxes to be levied within
Improvement Area No. 2 for the then current tax year or future tax years, except that the special
tax to be levied within Improvement Area No. 2 shall not exceed the maximum special tax
calculated pursuant to the Improvement Area No. 2 Special Tax Formula, but the special tax may
be levied at a lower rate.
SECTION 3. The special taxes herein authorized, to the extent possible, shall be
collected in the same manner as ad valorem property taxes and shall be subject to the same
penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad
valorem taxes; provided, however, the District may utilize a direct billing procedure for any
special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect
the special taxes at a different time or in a different manner if necessary to meet its financial
obligations.
SECTION 4. The special taxes shall be secured by the lien imposed pursuant to Sections
3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall
be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall
continue in force and effect until the special tax obligation is prepaid, permanently satisfied and
canceled in accordance with Section 53344 of the Government Code of the State of California or
until the special tax ceases to be levied by the City Council in the manner provided in Section
53330.5 of said Government Code.
SECTION 5. This Ordinance shall be effective thirty (30) days after its adoption.
Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be
published in a newspaper of general circulation in the City pursuant to the provisions of
Government Code Section 36933.
Presented by: Approved as to form by:
John Lippitt John Kaheny
Director of Public Works City Attorney
J:XAttorney\Ordinance\CFD 08M Special Tax Levy.doc
2
Exhibit "A"
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 08M
RATE AND METHOD OF APPORTIONMENT FOR
IMPROVEMENT AREA NO. 1
(Otay Ranch Village 6)
A Special Tax of Community Facilities District No. 08M (Otay Ranch Village 6) of the City of Chula
Vista ("CFD") shall be levied on all Assessor's Parcels in Improvement Area No. 1 of the CFD and
collected each Fiscal Year commencing in Fiscal Year 2002-03 in an amount determined through the
application of the rate and method of apportionment of the Special Tax set forth below. All of the
real property in the CFD, unless exempted by law or by the provisions hereof, shall be taxed for the
purposes, to the extent and in the manner herein provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as show~ on an Assessor's
Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area
shown on the applicable Final Subdivision Map, other final map, other parcel map, other
condominium plan, or functionally equivalent map or instrument recorded in the Office of
the County Recorder. The square footage of an Assessor's Parcel is equal to the Acre~age
multiplied by 43,560.
"Act" means the Mello~Roos Community Facilities Act of 1982, as amended, being Chapter
2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California.
"Administrative Expenses" means the actual or estimated costs incurred by the City,
acting for and on behalf of the CFD as the administrator thereof, to determine, levy and
collect the Special Taxes, including salaries of City employees and a proportionate amount of
the City's general administrative overhead related thereto, and the fees of consultants and
legal counsel providing services related to the administration of the CFD; the costs of
collecting installments of the Special Taxes; and any other costs required to administer IA
No. 1 of the CFD as determined by the City.
"Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an
assigned assessor's parcel nnmber.
"Assessor's Parcel Map" means an official map of the Assessor of the County designating
parcels by assessor's parcel number.
"CFD Administrator" means an official of the City, or designee thereof, responsible for
determining the Special Tax Requirement and providing for the levy and collection of the
Special Taxes.
"CFD" means Community Facilities District No. 08M of the City of Chula Vista.
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillitO Page I
"City" means the City of Ch~a Vista.
"City Clerk" means the City Clerk for the City of Chula Vista or his or her designee.
"City Manager" means the City Manager for the City of Chula Vista or his or her designee.
"Community Purpose Facility Property" or "CPF Property" means all Assessor's
Parcels which are classified as community purpose facilities and meet the requirements of
City of Chula Vista Ordinance No. 2452.
"Council" means the City Council of the City of Chula Vista, acting as the legislative body
of the CFD.
"County" means the County of San Diego, California.
"Developed Property" means all Taxable Property for which a building permit was issued
after January 1, 2002, but prior to the March 1st preceding the Fiscal Year in which the
Special Tax is being levied.
"Final Map Property" means a single family residential lot created by a Final Subdivision
Map, but which is not classified as Developed Property.
"Final Subdivision Map" means a subdivision of property creating single family residential
bnildable lots by recordation of a final subdivision map or parcel map pursuant to the
Subdivision Map Act (California Government Code Section 66410 et seq.), or recordation of
a condominium plan pursuant to C~fornia Civi~ Code 1352, that creates individual lots for
which building permits may be issued without further subdivision and is recorded prior to
March 1 preceding the Fiscal Year in which the Special Tax is being levied~
"Fiscal Year" means the period starting July 1 and ending on the foLiowing June 30.
"Improvement Area No. 1" or "IA No. 1" means Improvement Area No. 1 of the CFD,
as identified on the boundary map for the CFD.
"Land Use Class" means any of the classes listed in Table 1 or Table 2.
"Landscape Maintenance" means the labor, material, administration, personnel,
equipment and utilities necessary to maintain landscaped improvements within the public
right-of-ways, parkways, slopes, wetlands and other public easements throughout the CFD.
"Landscape Maintenance Requirement" means, for any Fiscal Year in which Special
Taxes are levied, the amotmt equal to the budgeted costs for Landscape Maintenance
applicable to LA No. 1 for such Fiscal Year.
"Maximum Special Tax" means the maxirntma Special Tax, determined in accordance
with Section C below, that may be levied in any Fiscal Year on any Assessor's Parcel of
Taxable Property.
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMHlitO Page 2
"Multi-Family Property" means all Assessor's Parcels of Developed Property for which a
building permit has been issued for a residential structure consisting of two or more
residential units that share common walls, including, but not limited to, duplexes, triplexes,
townhomes, condominiums, and apartment units.
"Non-Residential Property" means all Assessor's Parcels of Developed Property for
which a building permit(s) has been issued for a structure or structures for non-residential
use. Including lot S-2 and CPF-2.
"Operating Fund" means a fund that shall be maintained for IA No. 1 for each Fiscal Year
to pay for Landscape Maintenance and Storm Water Quality Maintenance and
Administrative Expenses.
"Operating Fund Requirement" means, for any Fiscal Year, the sum of the applicable
Landscape Maintenance Requirement and the applicable Storm Water Quality Maintenance
Requirement.
"Other Taxable Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property, Final Map Property, or Taxable Property Owners Association
Property.
"Property Owner Association Property" means any property within the boundaries IA
No. 1 of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument
recorded with the County Recorder to, a property owner association, including any master or
sub-association.
"Proportionately" means in a manner such that the ratio of the actual Special Tax levy to
the Maximum Special Tax is equal for all Assessor's Parcels of Taxable Property within each
Land Use Class.
"Public Property" means any property within the boundaries of IA No. 1 of the CFD that
is, at the time of the CFD formation, expected to be used for any public purpose and is
owned by or dedicated to the federal government, the State, the County, the City or any
other public agency.
"Reserve Fund" means a fund that shall be maintained for IA No. 1 for each Fiscal Year to
provide necessary cash flow for the first six months of each Fiscal Year, reserve capital to
cover monitoring, maintenance and repair cost overnms and delinquencies in the payment of
Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies.
"Reserve Fund Requirement" means an amount equal to up to 100% of the Operating
Fund Requirement for any Fiscal Year.
"Residential Property" means all Assessor's Parcels of Developed Property for which a
building permit(s) has been issued for purposes of constructing one residential dwelling unit.
City of Chula Vi.sm 8/9/2002
CFD 0SM, IA 1 Village 6 (McMiLlilt) Page 3
"Special Tax" means the Special Tax levied pursuant to the provisions of sections C and D
below in each Fiscal Year on each Assessor's Parcel of Developed Property and
Undeveloped Property in IA No. 1 to fund the Special Tax Requirement.
"Special Tax Requirement" means that amount required in any Fiscal Year for IA No. 1
to: (a) (i) pay the Landscape Maintenance Requirement; (ii) pay the Storm Water Quality
Maintenance Requirement; (iii) pay reasonable Administrative Expenses; (iv) pay any
amounts required to establish or replenish the Reserve Fund to the Reserve Fund
Requirement; (v) pay for reasonably anticipated delinquent Special Taxes based on the
delinquency rate for Special Taxes levied in the previous Fiscal Year; less (b) a credit for
funds available to reduce the annual Special Tax levy, induding the excess, if any, in the
Reserve Fund above the Reserve Fund Requirement.
"Square Foot" means the square footage as shown on an Assessor's Parcel's building
permit of Residential Property or Multi-Family Property, excluding garages or other
structures not used as liv'mg space.
"State" means the State of California.
"Storm Water Quality Maintenance" means the maintenance of detention basins, storm
drains, catch basin inserts, hydrodynamic devices, infiltration basins, and all other facilities
that axe directly related to storm water quality control throughout IA No. 1.
"Storm Water Quality Maintenance Requirement" means for any Fiscal Year an amount
equal to the budgeted costs for Storm Water Quality Maintenance applicable to IA No. 1 for
the current Fiscal Year in which Special Taxes are levied.
"Taxable Property" means ali of the Assessor's Parcels within the boundaries of IA No. 1
of the CFD that are not exempt from the Special Tax pursuant to law or as defined below.
"Tax-Exempt Property" means an Assessor's Parcel not subject to the Special Tax. Tax-
Exempt Properv/includes: (i) Public Property, or (ii) Property Owner Association Property,
or ('iii) Assessor's Parcels with public or utility easements making impractical their utilization
for other than the purposes set forth in the easement.
"Taxable Property Owner Association Property" means all Association Property
which is not exempt from the Special Tax pursuant to Section E below.
"Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property.
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year using the definitions above, all Taxable Property within IA No. 1 of the
CFD shall be classified as Developed Property, Final Map Property or Undeveloped
Property, and shall be subject to Special Taxes pursuant to Sections C and D below.
Developed Property shall be further assigned to a Land Use Class as specified in Table 1.
Undeveloped Property shall be further assigned to a Land Use Class as specified in Table 2.
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillin) Page 4
C. MAXIMUM SPECIAL TAX RATE
1. Developed Property
TABLE 1
Maximum Special Tax for Developed Property
Community Facilities District No. 08M
Improvement Area No. 1
Land Storm Maximum
Use Description Landscape Water Quality Special Tax
Class Maintenance Maintenance
1 Residential Property $0.170 per Sq Ft $0.038 per Sq Ft $0.208 per Sq Ft
2 Multi-Family Property $0.170 per Sq Ft $0.038 per Sq Ft $0.208 per Sq Ft
3 Non-Residential Property $2,926.95 per Acre $659.35 per Acre $3,586.30 per Acre
Multiple Land Use Classes
In some instances an Assessor's Parcel of Developed Property may contain more
than one Land Use Class. The Maximum Special Tax that may be levied on an
Assessor's Parcel shall be the sum of the Maximum Special Tax levies that may be
levied on all Land Use Classes located on that Assessor's Parcel. The CFD
Administrator's shall determine the allocation to each Land Use Class.
City of Chula Vista 8/9/2002
CFD 0SM, IAI Village 6 (McMillin) Page 5
-77
2. Undeveloped Property
TABLE 2
Maximum Special Tax for Undeveloped Property
Community Facilities District No. 08M
Improvement Area No. 1
Land Landscape Storm Maximum
Use Description Maintenance Water Quality Special Tax
Class Ma'mtenance
4 Final Map Property $2,926.95 per Acre $659.35 per Acre $3,586.30 per Acre
5 Other Taxable Property $2,926.95 per Acre $659.35 per Acre $3,586.30 per Acre
6 Taxable Property Owner $2,926.95 per Acre $659.35 per Acre $3,586.30 per Acre
Association Property
3. Annual Escalation of Maximum Special Tax
The Maximum Special Tax as shown in the tables above that may be levied on each
Assessor's Parcel in IA No. 1 shall be increased each Fiscal Year beginning in Fiscal
Year 2003-04 and thereafter by a factor equal to the annual percentage change in the
San Diego Metropolitan Area Ail Urban Consumer Price Index (All Items).
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2002-03, and for each following Fiscal Year, the Council shall
levy the IA No. 1 Special Tax at the rates established pursuant to steps 1 through 4 below so
that the amount of the Special Tax levied equals the Special Tax Requirement. The Special
Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied proportionately on each Assessor's Parcel of
Developed Property up to 100% of the applicable Maximum Special Tax;
Second: If additional monies are needed to satisfy the Special Tax Requirement after the
first step has been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Final Map Property at up to 100% of the Maximum Special Tax for
Final Map Property;
Third: If additional monies are needed to satisfy the Special Tax Requirement after the first
two steps have been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Other Taxable Property at up to 100% of the Maximum Special Tax for
Other Taxable Property;
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillin) Page 6
Fourth: if additional moneys are needed to satisfy the Special Tax Requirement after the first
three steps have been completed, the Special Tax shall be levied proportionately on each
Assessor's Parcel of Taxable Property Owner Association Property at up to 100% of the
Maximum Special Tax for Taxable Property Owner Association Property.
Notwithstanding the above, under no circumstances will the Special Tax levied against any
Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy
permit for private residential use has been issued be increased by more than ten percent
annually up to the Maximum Special Tax as a consequence of delinquency or default by the
owner of any other Assessor's Parcel within IA No. 1 of the CFD.
E. EXEMPTIONS
The CFD Administrator shall classify as exempt property (i) Assessor's Parcels defined as
Public Property, and (ii) Assessor's Parcels with public or utility easements making
impractical their utilization for other than the purposes set forth in the easement.
The CFD Administrator shall classify as exempt property those Assessor's Parcels defined as
Property Owner's Association Property provided that no such classification would reduce
the sum of all taxable Property to less than 128.11 Acres. Assessor's Parcels defined as
Property Owner Association Property that cannot be classified as exempt property will be
classified as Taxable Property Owner Association Property and shall be taxed as part of the
fourth step in Section D.
The CFD Administrator will assign Tax-Exempt status in the chronological order in which
property becomes exempt.
F. APPEALS
Any landowner or resident who pays the Special Tax and believes that the amount of the
Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD
Administrator regarding such error. If following such consultation, the CFD Administrator
determines that an error has occurred, the CFD Administrator may amend the amount of the
Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any
by the CFD Administrator, the landowner or resident believes such error still exists, such
person may file a written notice with the City Clerk of the City appealing the amount of the
Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City
Clerk shall forward a copy of such notice to the City Manager who shall establish as part of
the proceedings and administration of the CFD, a special three-member Review/Appeal
Committee. The Review/Appeal Committee may establish such procedures, as it deems
necessary to undertake the review of any such appeal. The Review/Appeal Committee shall
interpret this Rate and Method of Apportionment and make determinations relative to the
annual administration of the Special Tax and any landowner or resident appeals, as herein
specified. The decision of the Review/Appeal Committee shall be final and binding as to all
persons.
City of Chula Vista 8/9/2002
CFD 0SM, IAI Village 6 (McMillin) Page 7
G. MANNER OF COLLECTION
Special Taxes levied pursuant to Section D above shall be collected in the same manner and
at the same time as ordinary ad vabam property taxes; provided, however, that the CFD
Administrator may directly bill the Special Tax, may collect Special Taxes at a different time
or in a different manner if necessary to meet the financial obligations of IA No. 1 of the
CFD or as otherwise determined appropriate by the CFD Administrator.
H. TERM OF SPECIAL TAX
Taxable Property in IA No. 1 of the CFD shall remain subject to the Special Tax in perpetuity.
J:\Enghaeer\LdO4DDEV\CFD's\Vi]lage 6- Mah~tenanceMRMA Mdvlillin IA1 for ROI.doc
City of Chula Vista 8/9/2002
CFD 08M, IAI Village 6 (McMillin) Page 8
Exhibit "B"
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 08M
RATE AND METHOD OF APPORTIONMENT FOR
IMPROVEMENT AREA NO. 2
(Otay Ranch Village 6)
A Special Tax of Community Facilities District No. 08M (Village 6) of the City of Chula Vista
("CFD") shall be levied on all Assessor's Parcels in Improvement Area No. 2 of the CFD and
collected each Fiscal Year commencing in Fiscal Year 2002-03 in an amount determined through the
application of the rate and method of apportionment of the Special Tax set forth below. All of the
real property in the CFD, unless exempted by law or by the provisions hereof, shall be taxed for the
purposes, to the extent and in the manner herein provided.
A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
"Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's
Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area
shown on the applicable Final Subdivision Map, other final map, other parcel map, other
condominium plan, or functionally equivalent map or instrument recorded in the Office of
the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage
muitiplied by 43,560.
"Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter
2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California.
"Administrative Expenses" means the actual or estimated costs incurred by the City,
acting for and on behalf of the CFD as the administrator thereof, to determine, levy and
collect the Special Taxes, including salaries of City employees and a proportionate amount of
the City's general administrative overhead related thereto, and the fees of consultants and
legal counsel providing services related to the administration of the CFD; the costs of
collecting installments of the Special Taxes; and any other costs requixed to administer IA
No. 2 of the CFD as determined by the City.
"Assessor's Parcel" means a lot or parcei shown in an Assessor's Parcel Map with an
assigned assessor's parcel number.
"Assessor's Parcel Map" means an official map of the Assessor of the County designating
parcels by assessor's parcel number.
"CFD Administrator" means an official of the City, or designee thereof, responsible for
determining the Special Tax Requirement and providing for the levy and coliection of the
Special Taxes.
"CFD" means Community Facilities District No. 08M of the City of Chula Vista.
(~¥ty of Chula Vista 10/29/2002
CFD 0SM, IA2 Village 6 (Otay Ranch Co.) Page 1
"City" means the City of Chu~a Vista.
"City Clerk" means the City Clerk for the City of Chula Vista or his or her designee.
"City Manager" means the City Manager for the City of Chula Vista or his or her designee.
"Community Purpose Facility Property" or "CPF Property" means all Assessor's
Parcels which are classified as commtmity purpose facilities and meet the requirements of
City of Chula Vista Ordinance No. 2452.
"Council" means the City Council of the City of Chula Vista, acting as the legislative body
of the CFD.
"County" means the County o£ San Diego, California.
"Developed Property" means all Taxable Property for which a building permit was issued
after January 1, 2002, but prior to the March 1st preceding the Fiscal Year in which the
Special Tax is being levied.
"Final Map Property" means a single fa~y residential lot created by a Final Subdivision
Map, but which is not classified as Developed Property.
"Final Subdivision Map" means a subdivision of property creating single family residential
buildable lots by recordation of a final subdivision map or parcel map pursuant to the
Subdivision Map Act (California Government Code Section 66410 et seq.), or recordation of
a condominium plan pursuant to California Civil Code 1352, that creates individual lots for
wtfich building permits may be issued without further subdivision and is recorded prior to
March 1 preceding the Fiscal Year in which the Special Tax is being levied.
"Fiscal Year" means the period starting Jttly 1 and ending on the following June 30.
"Improvement Area No. 2" or "IA No. 2" means Improvement Area No. 2 of the CFD,
as identified on the boundary map for the CFD.
"Land Use Class" means any of the classes listed in Table 1 or Table 2.
"Landscape Maintenance" means the labor, material, administration, personnel,
equipment and utilities necessary to maintain landscaped improvements within the public
right-of-ways, parkways, slopes, wetlands and other public easements throughout the CFD.
"Landscape Maintenance Requirement" means, for any Fiscal Year in which Special
Taxes are levied, the amount equal to the budgeted costs for Landscape Maintenance
applicable to IA No. 2 for such Fiscal Year.
"Maximum Special Tax" means the maximum Special Tax, determined in accordance
with Section C below, that may be levied in any Fiscal Year on any Assessor's Parcel of
Taxable Property.
City of Chula Vista 10/29/2002
CFD 0SM, IA2 Village 6 (Otay Ranch Co.) Page 2
"Multi-Family Property" means all Assessor's Parcels of Developed Property for which a
building permit has been issued for a residential structure consisting of two or more
residential units that share common walls, including, but not limited to, duplexes, triplexes,
townhomes, condominiums, and apartment units.
"Non-Residential Property" means all Assessor's Parcels of Developed Property for
which a building permit(s) has been issued for a structure or structures for non-residential
use,
"Operating Fund" means a fund that shall be maintained for IA No. 2 for each Fiscal Year
to pay for Landscape Maintenance and Storm Water Quality Maintenance and
Administrative Expenses.
"Operating Fund Requirement" means, for any Fiscal Year, the sum of the applicable
Landscape Maintenance Requirement and the applicable Storm Water Quality Maintenance
Requirement.
"Other Taxable Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property, Final Map Property, or Taxable Property Owners Association
Property.
"Property Owner Association Property" means any property within the boundaries IA
No. 2 of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument
recorded with the County Recorder to, a property owner association, including any master or
sub-association.
"Proportionately" means in a manner such that the ratio of the actual Special Tax levy to
the Maximum Special Tax is equal for all Assessor's Parcels of Taxable Property within each
Land Use Class.
"Public Property" means any property within the boundaries of IA No. 2 of the CFD that
is, at the time of the CFD formation, expected to be used for any public purpose and is
owned by or dedicated to the federal government, the State, the County, the City or any
other public agency.
"Reserve Fund" means a fund that shall be malntalffed for lA No. 2 for each Fiscal Year to
provide necessary cash flow for the first slx months of each Fiscal Year, reserve capital to
cover monitoring, maintenance and repair cost overruns and delinquendes in the payment of
Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies.
"Reserve Fund Requirement" means an amount equal to up to 100% of the Operating
Fund Requirement for any Fiscal Year.
"Residential Property" means all Assessor's Parcels of Developed Property for which a
building permit(s) has been issued for purposes of constructing one residential dwelling unit.
City of Chula Vista 10/29/2002
CFD 08M, IA2 Village 6 (Otay Ranch Co.) Page 3
"Special Tax" means the Special Tax levied pursuant to the provisions of sections C and D
below in each Fiscal Year on each Assessor's Parcel of Developed Property and
Undeveloped Property in IA No. 2 to fund the Special Tax Requirement.
"Special Tax Requirement" means that amount required in any Fiscal Year for IA No. 2
to: (a) (i) pay the Landscape Maintenance Requirement; (ii) pay the Storm Water Quality
Maintenance Requirement; ('dj) pay reasonable Administrative Expenses; (iv) pay any
amounts required to establish or replenish the Reserve Fund to the Reserve Fund
Requirement; (v) pay for reasonably anticipated delinquent Special Taxes based on the
delinquency rate for Special Taxes levied in the previous Fiscal Year; less (b) a credit for
funds available to reduce the annual Special Tax levy, including the excess, if any, in the
Reserve Fund above the Reserve Fund Requirement.
"Square Foot" means the square footage as shown on an Assessor's Parcel's building
permit of Residential Property or Multi-Family Property, excluding garages or other
structures not used as living space.
"State" means the State of California.
"Storm Water Quality Maintenance" means the maintenance of detention basins, storm
drains, catch basin inserts, hydrodynamic devices, inf'fltration basins, and all other facilities
that are directly related to storm water quality control throughout IA No. 2.
"Storm Water Quality Maintenance Requirement" means for any Fiscal Year an amount
equal to the budgeted costs for Storm Water QualityMaintenance applicable to IA No. 2 for
the current Fiscal Year in which Special Taxes are levied.
"Taxable Property" means all of the Assessor's Parcels within the boundaries of IA No. 2
of the CFD that are not exempt from the Special Tax pursuant to law or as defined below.
"Tax-Exempt Property" means an Assessor's Parcel not subject to the Special Tax. Tax-
Exempt Property includes: (i) Public Property, or (ii) Property Owner Association Property,
or (ih') Assessor's Parcels defined as Community Purpose Facility Property that is owned by a
non-profit organization and has provided proof to the City prior to the March 1st preceding
the Fiscal Year in which the Special Tax is being levied of the organization's non-profit
status, or (v) Assessor's Parcels with public or utility easements making impractical their
utilization for other than the purposes set forth in the easement.
"Taxable Property Owner Association Property" means all Association Property which
is not exempt from the Special Tax pursuant to Section E below.
"Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified
as Developed Property.
City of Chula Vista 10/29/2002
CFD 08M, IA2 Village 6 (Otay Ranch Co.) Page 4
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year using the de£mitions above, all Taxable Property within IA No. 2 of the
CFD shall be classified as Developed Property, Final Map Property or Undeveloped
Property, and shall be subject to Special Taxes pursuant to Sections C and D below.
Developed Property shall be further assigned to a Land Use Class as specified in Table 1.
Undeveloped Property shall be further assigned to a Land Use Class as specified in Table 2.
Assessor's Parcels of CPF Property not classified as exempt in accordance with Section E
below shall be taxed as Non-Residential Property when such Assessor's Parcel is classified as
Developed Property. If the Assessor's Parcel is Undeveloped it shall be classified as Other
Taxable Property.
C. MAXIMUM SPECIAL TAX RATE
1. Developed Property
TABLE 1
Maximum Special Tax for Developed Property
Community Facilities District No. 08M
Improvement Area No. 2
Land Storm Maximum
Use Description Landscape Water Quality Special Tax
Class Maintenance Maintenance
1 Residential Property $0.168 per Sq Ft $0.012 per Sq Ft $0.180 per Sq Ft
2 Multi-Family Property $0~168 per Sq Ft $0.012 per Sq Ft $0.180 per Sq Ft
3 Non-Residential Property $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
Multiple Land Use Classes
In some instances an Assessor's Parcel of Developed Property may contain more
than one Land Use Class. The Maximum Special Tax that may be levied on such an
Assessor's Parcel shall be the sum of the Maximum Special Tax levies that may be
levied on all Land Use Classes located on that Assessor's Parcel. The CFD
Administrator's shall determine the allocation to each Land Use Class.
2. Undeveloped Property
TABLE 2
Maximum Special Tax for Undeveloped Property
Community Facilities District No. 08M
Improvement Area No. 2
LandI Landscape Storm I Maximum ]
City of Chula Vista 10/29/2002
CFD 0SM, L42 Village 6 (Otay Ranch Co.) Page 5
~Use Description Maintenance Water Quality Special Tax
Class Maintenance
4 Final Map Property $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
5 Other Taxable Property $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
6 Taxable Property Owner $3,475.96 per Acre $251.35 per Acre $3,727.31 per Acre
Association Property
3. Annual Escalation of Maximum Special Tax
The Maximum Special Tax as shown in the tables above that may be levied on each
Assessor's Parcel in IA No. 2 shall be increased each Fiscal Year beginning in Fiscal
Year 2004-05 and thereafter by a factor equal to the annual percentage change in the
San Diego Metropolitan Area All Urban Consumer Price Index (All Items).
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2003-04, and for each following Fiscal Year, the Council shall
levy the IA No. 2 Special Tax at the rates established pursuant to steps 1 through 4 below so
that the amount of the Special Tax levied equals the Special Tax Requirement. The Special
Tax shall be levied each Fiscal Year as follows:
First: The Special Tax shall be levied proportionately on each Assessor's Parcel 6f
Developed Property up to 100% of the applicable Maximum Special Tax;
Second: If additional monies are needed to satisfy the Special Tax Requirement after the
first step has been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Final Map Property at up to 100% of the Maximum Special Tax for
Final Map Property;
Third: If additional monies are needed to satisfy the Special Tax Requirement after the first
two steps have been completed, the Special Tax shall be levied Proportionately on each
Assessor's Parcel of Other Taxable Property at up to 100% of the Maximum Special Tax for
Other Taxable Property;
Fourth: If additional moneys are needed to satisfy the Special Tax Requirement after the first
three steps have been completed, the Special Tax shall be levied proportionately on each
Assessor's Parcel of Taxable Property Owner Association Property at up to 100% of the
applicable Maximum Special Tax for Taxable Property Owner Association Property.
Notwithstanding the above, under no circumstances w'dl the Special Tax levied against any
Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy
permit for private residential use has been issued be increased by more than ten percent
annually up to the Maximum Special Tax as a conseqnence of delinquency or default by the
owner of any other Assessor's Parcel wkhin IA No. 2 of the CFD.
City of Chula Vista 10/29/2002
CFD 08M, IA2 Village 6 (Otay Ranch Co.) Page 6
E. EXEMPTIONS
The CFD Administrator shall classify as exempt property (i) Assessor's Parcels defined as
Public Property, (ii) Assessor's Parcels defined as Community Purpose Facility Property that
are owned by a non-profit organization which has provided proof to the City prior to the
March 1st preceding the Fiscal Year in which the Special Tax is being levied of the
organization's non-profit status, and ('rii) Assessor's Parcels with public or utility easements
making impractical their utilization for other than the purposes set forth in the easement.
The CFD Administrator shall classify as exempt property those Assessor's Parcels defined as
Property Owner's Association Property provided that no such classification would reduce
the sum of all taxable Property to less than 124.90 Acres. Assessor's Parcels del'reed as
Property Owner Association Property that cannot be classified as exempt property will be
classified as Taxable Property Owner Association Property and shall be taxed as part of the
fourth step in Section D.
The CFD Administrator will assign Tax-Exempt status in the chronological order in which
property becomes exempt.
F. APPEALS
Any landowner or resident who pays the Special Tax and believes that the amount of the
Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD
Administrator regarding such error. If following such consultation, the CFD Administrator
determines that an error has occurred, the CFD Administrator may amend the amount of the
Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any
by the CFD Administrator, the landowner or resident believes such error still exists, such
person may file a written notice with the City Clerk of the City appealing the amount of the
Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City
Clerk shall forward a copy of such notice to the City Manager who shall establish as part of
the proceedings and administration of the CFD, a special three-member Review/Appeal
Committee. The Review/Appeal Committee may establish such procedures, as it deems
necessary to undertake the review of any such appeal. The Review/Appeal Committee shall
interpret this Rate and Method of Apportionment and make determinations relative to the
annual administration of the Special Tax and any landowner or resident appeals, as herein
specified. The decision of the Review/Appeal Committee shall be final and binding as to all
persons. IA No. 2
G. MANNER OF COLLECTION
Special Taxes levied pursuant to Section D above shall be collected in the same manner and
at the same time as ordinary ad w.k~on property taxes; provided, however, that the CFD
Administrator may directly bill the Special Tax, may collect Special Taxes at a different time
or in a different manner if necessary to meet the financial obligations of IA No. 2 of the
CFD or as otherwise determined appropriate by the CFD Administrator.
Cily of Chula Vista 10/29/2002
CFD 08M, IA2 Village 6 (Otay Ranch Co.) Page 7
H. TERM OF SPECIAL TAX
Taxable Property in lA No.2 of the CFD shall remain subject to the Special Tax in perpetuity.
J:\AttomeyIANN\CFDs\McMil1ín, Otay Ranch & Otay Ranch CoIEx. B CFD 08M.doc
City of Chula Vista
CFD 08M, fA2 Village 6 (Otuy Ranch Co.)
10/29/2002
Page 8
/¡;·fþ
The Sacramento Bee -- sacbee.com -- Dan Walters: Today's winrlát¡wllwww.sacbee.com/content/politics/v-print/story/5077919p-608...
!f!IL' .. ./Ir
CHOOSE YOUR. . . ~
NEXT CAR. ~
DoII,eA.. 0 Inklt Rep
Cor "'.Plling
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This story is taken from Dolitics at sacbee.com.
Dan Walters: Today's winner will stare into bottomless
pit of budget deficits
By Dan Walters -- Bee Columnist - (Published November 5, 2002)
Whichever aspirant is elected governor of California today -- and the odds favor Democratic
Gov. Gray Davis over Republican rival Bill Simon -- he will immediately stare into a budgetary
abyss of incalculable depth.
The state's budget crisis is so severe and so endemic that it will dominate the next
governorship and perhaps the next decade. However it is resolved -- if, in fact, it is -- will
alter the fiscal politics of California for a generation. It culminates a quarter-century of fiscal
denial, born of Proposition 13's passage in 1978s, capped by what happened in the late
1990s, under Davis and his Republican predecessor, Pete Wilson.
As the state roared out of recession in the mid-1990s, state revenues soared, primarily
because of income taxes on capital gains and stock options in the high-tech sector. The
prudent course would have been to sock away this windfall into reserves and/or spend it on
one-time projects, such as filling a huge need for public works. But prudence gave way to
short-term politics as Republicans demanded tax cuts and Democrats pushed for more health
and education spending. Satisfying both created a multibillion-dollar gap between the state's
spending commitments and its dependable revenue sources. And when the high-tech bubble
burst, the state went from a $12 billion surplus to a $24 billion deficit in a matter of months.
California's fiscal house of cards collapsed during an election year and the result, after weeks
of public teeth gnashing last summer, was the worst excuse for a budget in recent California
history, "balanced" only because of $15 billion-plus in direct and indirect borrowing and a
bunch of "savings" and "revenue" estimates that were highly inflated. It's evident, for
instance, that a "golden handshake" early retirement program for state workers, pegged to
save $285 million, is more paper than actuality, with many state agencies electing not to
participate.
The 2002-03 budget did almost nothing about the underlying structural imbalance, leading to
authoritative estimates that the state faces a gap between income and outgo of at least $50
billion over the next five years, and that number is probably too low. It wouldn't surprise
anyone if the chasm hit $60 billion.
What's worse, the deficit will not be bridged even if the state recovers smartly from its current
economic slowdown because it stems from that high-tech income tax bubble that will not be
replicated. And to compound the political difficulty of the situation, the Legislature is
dominated by liberals who will resist major spending reductions and want to raise taxes
and/or continue deficit-covering loans.
Assuming that Davis is re-elected today, what he and the Legislature do about the budget gap
will depend largely on whether he continues the ties to liberals that he forged to gain
re-election this year, or reverts to the centrism he espoused during the first three years of his
first term. Will he, in other words, go along with the liberal demand for higher taxes? Even if
Davis still tacks to port, Democrats will have great difficulty gaining votes for taxes in the
Legislature, because the Republican contingents will, if anything, be more conservative.
lof2
11/5/20022:16 PM
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CllY OF
CHUlA VISfA
OFFICE OFTHE CITY ATTORNEY
DATE:
November 5, 2002
FROM:
The Honorable Mayor and City Council
0Jt C/
John M. Kaheny, City Attorneyþ1,
Absence from Council Meeting
TO:
SUBJECT:
I have been invited to participate in a training exercise at Camp
Pendleton today and I will be absent from tonight's Council
meeting. Senior Assistant City Attorney Ann Moore will be in
attendance.
JMK: 19k
cc: David D. Rowlands, Jr.
Susan Bigelow
J:\attorney\letter\vacation
276 FOURTH AVENUE· CHULA VISTA· CALIFORNIA 91910· (619) 691-5037· FAX (619) 409-5823
~, Po.1·Co~.ume. Recyoled Pep.'
~~f?
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~~~~
~~-~
CllY OF
CHUlA VISfA
OFFICE OF THE CITY ATTORNEY
MEMORANDUM OF LAW
DATE:
November 1, 2002
TO:
FROM:
City/Schools Community Task Force
q)v"\,
Ann Y. Moore, Senior Assistant City Attorney
SUBJECT:
SB 50
The Chula Vista City Council approved the creation of a joint agency task force
comprised of members of the public and representatives fÌom the Sweetwater Union High
School District and Chula Vista Elementary School District ("Task Force"). The Task
Force was formed in response to community concerns of over crowding at local schools.
A number of questions have arisen concerning the City's ability to address the impact of
development on school facilities. The Task Force requested our Office provide an
overview of the key legal principles that pertain to the City's ability to regulate school
facilities.
BACKGROUND
The legal authority that enables cities or counties to provide for public
infrastructure, such as parks, libraries and schools, is derived fÌom a local agency's police
powers and statutory authorization established by the Legislature. The common law
recognized the police power of a city or county to regulate land use to protect the public
health, safety and welfare of its residents. Berman v. Parker, (1954) 348 U.S. 26 (75
S.C!. 98). See also Metro media, Inc. v. City of San Diego, (1980) 26 Ca1.3d 848, 861.
However, a city or county may not regulate pursuant to its police powers in an area
preempted by state law. Candid Enterprises, Inc., v. Grossmont Union High School
District (1985) 39 Ca1.3d 878, 885.
In 1986, the Legislature adopted the School Facilities Legislation (commonly
known as the "Sterling Act") that capped the amount of school fees that could be charged
for residential, commercial and industrial development. The Sterling Act declared the
financing of school facilities a matter of statewide concern and the Legislature occupied
276 FOURTH AVENUE· CHULA VISTA· CALIFORNIA 91910· (619) 691-5037· FAX (619) 409-5823
C;;PI»,.conoume,RecycleoPape,
School Task Force
November 1, 2002
Page 2
the subject matter to the exclusion of all local measures. In addition, the Sterling Act
amended former Govermnent Code § 65996 to prohibit public agencies from denying a
development prOject under the California Environmental Quality Act CCEQA") (Public
Resources Code § 2100 et seq.) or the Subdivision Map Act (Govermnent Code § 66410
et seq.) because of the inadequacy of school facilities.
Beginning in 1988, the courts expanded the power of local agencies to deal with
the impacts of development on schools. A line of appellate cases interpreted the phrase
"development project" to apply only to quasi-adjudicatory actions such as tentative map
approvals and not to legislative decisions like general plan amendments]. The courts held
that cities and counties could consider the availability of school facilities when making
legislative decisions. Mira Development Corp. v. City of San Diego, (\988) 205 Cal.
App.3d 1201 (the Court held a rezoning application denied on basis of inadequate school
facilities is not a development project subject to school facilities law); William S. Hart
Union High School Dist. v. Regional Planning Commission, (1991) 226 Cal. App3d 1612
(the Court determined that the school facilities law did not prohibit an agency from
denying a zoning change based on inadequacy of school facilities where a zoning change
is an essential condition of the project); and Murrieta Valley Unified School Dist. v.
County of Riverside (1991) 228 Cal. App.3d 1212 (the school facilities law did not
preempt authority and duty of county to examine the environmental impact of a general
plan amendment on school facilities and to impose appropriate mitigation measures).
The courts in the Mira-Hart-Murrieta trilogy of cases allowed cities and counties
to conditionally approve or deny legislative approvals for development projects based
upon the inadequacy of school facilities. This gave local jurisdictions an avenue in which
to encourage developers to fully mitigate the impacts on schools caused by new
development.
In 1998, the Legislature enacted Senate Bill 50 ("SB 50"), which made significant
amendments to the statutory scheme for imposing school fees. SB 50 included a 5>9.2
billion state bond measure, which was approved by the voters as Proposition 1 A in the
November 3, 1998, general election. SB 50 is based upon the premise that the financing
of school facilities and the mitigation of land use approvals for such facilities is a matter
of statewide concern. Therefore, only the State should be responsible for the financing of
, A legislative act involves the enactment of legislation that established a broad. generally
applicable rule of conduct on the basis of general public policy. San Diego Building Contractors
Assn. v. City Council. (1974) 13 Ca1.3d 205,213. In addition, only the governing body of a city
or county may make legislative decisions. Kuglar v. Yocum, 69 Cal.2d 371 (1968) and Groch v.
City of Berklev. (1981) 118 Cal. App.3d 518. A quasi-adjudicatory decision describes an
individual development project that is considered in accordance with standards and policies. It
involves the application of a rule to a specific set of existing facts. Pacific Corp. (1983) 149 Cal.
App3d at 175.
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such facilities. SB 50 also invalidated the Mira-Hart-Murrieta trilogy of cases that
previously held that the limitations regarding permissible methods of mitigating school
facilities did not apply to projects requiring legislative approvals. Instead, the fee
provisions of SB 50 now provide the only mitigation for school facilities for all
development projects, whether legislative or quasi-adjudicatory in nature.'
ANALYSIS
In general, a city or county may impose land use regulations providing for public
infrastructure when such actions are reasonably related to the public welfare. However,
with respect to school facilities, the Legislature has "preempted" the field. The
Legislature has determined that the financing of school facilities and the mitigation of
development based on the need of such facilities are of such state importance that state
law should take precedence over local rules. In particular, Govermnent Code § 65995(e)
provides:
. ..For this reason, the Legislature hereby occupies the subject
matter of requirements related to school facilities levied or
imposed in connection with, or made a condition of, any land
use approvaL.. on the need for school facilities to the
exclusion of all other measures, financial or no financial, on
the subjects.
Thus cities, like Chula Vista, are specifically excluded from imposing
development requirements regarding school facilities in a manner inconsistent with state
law on the subject. This means that only school districts can provide mitigation for
school facilities by imposing the school impact fees authorized by state statute under
Education Code § 17620.
However, the most significant change resulting from the passage of SB 50
concerns the local agency's ability to condition its legislative actions to mitigate the
impact of development on schools. SB 50 amended Govermnent Code § 65995(a) to
prohibit cities from imposing conditions in connection with any "adjudicative or
legislative act." In addition, Government Code § 65995(b) specifically eliminated a city's
ability to deny a "Iegislative or adjudicative" act based on inadequate school facilities.
, SB 50 provides for three levels of statutory fèes. The level of fee imposed depends on whether:
(I) State funding is available; (2) the school district is eligible for State funding; and (3) the
school district meet certain additional criteria. (Government Code § 65995 and Education Code
§ 17071.75(a) and § 17072.20(b).) This analysis occurs among the school districts and State
Allocation Board.
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These two statues effectively repealed the Mira-Hart-Murrieta line of cases that
allowed local agencies to either deny or conditionally approve legislative land use
decisions for development projects based upon a project's impact on school facilities.
For most jurisdictions, common legislative actions include the adoption of planning and
zoning ordinances or the General Plan.
In the City of Chula Vista common .legislative acts include the adoption or
amendments of General Development Plans ("GDP"), Sectional Planning Area ("SPA")
Plans or Public Facilities Finance Plans ("PFFP"). These planning documents are unique
to Chula Vista and are used by the City to provide for the systematic planning and the
implementation of such planning within specific areas of master developers such as
Eastlake or Otay Ranch. In particular, the PFFP document is used by the City to describe
the types and timing of constructing the public facilities that would be needed as a result
of the development of a project. Schools were historically considered and dealt with in
this analysis. For Chula Vista, the invalidation of the Mira-Hart-Murrieta line of cases,
means the City can no longer consider the adequacy of school facilities when considering
a development project's GDP, SPA or PFFP documents. In addition, the City can no
longer condition the approval of such documents in order to mitigate school impacts.
This suspension of local authority will last until at least 2006. At that time,
depending on Legislative and electorate action, the suspension mayor may not continue.
If the voters approve a school bond initiative in 2006 or thereafter, the Mira-Hart-
Murrieta repeal will be lifted, and cities will again be able to deny or condition the
approval of a legislative decision involving a development project on the basis of its
impact on school facilities. If a bond measure is not placed on the ballot in 2006, the
suspension of the ability to deny a project will continue indefinitely. (Govermnent Code
§ 65996(1) and § 65997).
Prior to the passage of SB 50, cities also used a number of other tools to mitigate
the impact of development on school facilities, such as requiring developers to dedicate
land for school facilities or to participate in a Mello-Roos Financing District for school
facilities. However with the passage of SB 50 such mechanisms are no longer available.
SB 50 amended Government Code § 65995(a) to prohibit state or local agencies
from imposing school impact mitigation fees. dedications or other requirements
(emphasis added) in excess of those provided in the statute in connection with "any
legislative or adjudicative act... by any state or local agency involving ... the planning,
use or development of real property..." This means a city can no longer require the
dedication of school sites in connection with taking legislative actions such as approving
SP A Plans.
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However, Govermnent Code § 65998 still allows cities to reserve or designate real
property for school sites. Government Code § 65998(a) provides "Nothing in this [Act]
shall be interpreted to limit or prohibit the authority of a local agency to reserve or
designate real property for a school site." Therefore, local agencies can still designate
space for school facilities in its general plan or other planning documents. But cities can
no longer require the dedication of such property in connection with approving
development projects.
In addition, Government Code § 65995(f) and (g) was amended to prohibit cities
from requiring a developer to join a Mello-Roos district to finance school facilities as a
condition of approval of a legislative or adjudicative act. (Govermnent Code § 65995(f)
and (g).)
SB 50 is silent as to whether it preempts all local planning authority pertaining to
development impacts on schools. For instance, a question has been asked whether SB 50
impacts the City's ability to impose a building moratorium on development if there was a
violation of the City's Growth Control Ordinance's (Municipal Code § 19.09.010 et. seq.)
threshold standards for schools.
The City's Growth Management Ordinance is a program that identifies facilities
and improvements necessary to accommodate development and establishes a series of
threshold standards for a number of identified facilities (one of which are schools). It
provides that if the City Council determines, after a noticed public hearing, that a
deficiency exists in one of the threshold standards, the City Council can decide to stop the
issuance of building or development permits until an amendment to the applicable PFFP
which mitigates the deficiency is approved by the City Council. (Municipal Code
§ 19.09.100(c).)
Since SB 50 was enacted a relatively short time ago, there is no case law to turn to
with respect to interpreting the full extent of its application to other types of actions taken
by local agencies. Since there is no case law on this subject, we suggest looking at the
language of SB 50 for guidance. The Legislature clearly intended to occupy this field and
in a large part eliminate the ability of cities from exercising their police power to mitigate
school impacts. (Govermnent Code § 65995(e).) Govermnent Code § 65995(a) reads in
part:
"...a fee, charge, or other requirement for the
construction...of school facilities may not be levied or
imposed in connection with...any legislative...act... involving,
but not limited to, the planning, use or development of real
property..."
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The City's Growth Control Ordinance was intended to provide the City with a
mechanism to mitigate school impacts if necessary. The Growth Control Ordinance
provides that the City Council with the ability to stop the issuance of building permits if
there is a threshold deficiency until a development project's PFFP is amended to mitigate
that deficiency. This clearly appears to contradict the intent of the Legislature in the
passage of SB 50 to limit the ability of cities to mitigate school impacts.
The question of whether SB 50 preempts all local planning authority will most
likely be the subject of future litigation. Therefore, due to the uncertainty in this area of
law, we would advise the City take a conservative approach when considering taking any
action in connection with the Growth Management Ordinance pertaining to school
facilities. If the City is found to have acted inappropriately, it could trigger inverse
condemnation claims. In any event, SB 50 has no effect on the City's ability to exercise
its authority with respect to other threshold standards under its Growth Control
Ordinance.
SB 50 is also silent as to its impact on state and local laws requiring general plan
consistency and other consistency requirements. For instance, California Govermnent
Code § 65300 mandates that all cities and counties adopt an adequate general plan. The
land use element of the General Plan is required to discuss the general distribution and
location of uses of land for education. (Government Code § 65302) However, local
agencies no longer have any authority to provide for such sites.
In addition, a number of laws require land use actions to be consistent with the
General Plan. Govermnent Code § 65860 provides that all zoning ordinances be
consistent with the general plan. Although, charter cites are excluded from this provision,
the City of Chula Vista adopted a similar consistency requirernent. (Municipal Code
§ 19.06.030). Also, the court in Corona-Norco USD v. Corona (1983) 13 Cal. App.4th
1577,1585, held that the Sterling Act preempted the use of the consistency doctrine as it
applied to subdivision maps under Govermnent Code § 66473.5. This raises a number of
question as to whether the same principles would apply to other consistency requirements
pertaining to land use decisions. No doubt such questions will probably be the topic of
future litigation.
Finally, SB 50 makes even the application of CEQA a great deal more difficult.
CEQA requires a city to prepare an EIR and propose mitigation measures for any
significant impacts that would result from the approval of a development project. In
addition, the local agency must make a finding for each significant impact; either that the
project has been changed to void or substantially reduce the impact or that mitigation
measures will be adopted. If the lead agency cannot make this finding, it must make the
finding that economic, social, legal, technical or other considerations make the mitigation
measure infeasible. (Guideline 15091) Under CEQA a project that has significant
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impacts that cannot be mitigated cannot be approved unless such a finding is made by the
local agency.
This means that as a result of the enactment of SB 50, even if a development
project has a significant impact on school facilities, the city cannot impose any mitigation
measures on the project. In addition, a city could not deny the project on the basis of the
development project's significant impact on school facilities. Therefore, the local agency
would have to make a finding when approving the project that mitigation measures
pertaining to school facilities are legally infeasible because of the limitations placed on
local agencies by SB 50. It seems this approach would ensure procedural cOmpliance
with CEQA and allow the City to comply with the provisions ofSB 50.
CONCLUSION
SB 50 has severely limited the options of cities to assist in the financing of new
school facilitates. Thus a planning and/or development project resulting in an impact on
school facilities: (1) may be approved with mitigation measures taken from those
identified in Govermnent Code Section 65996(a); or (2) may be approved without
mitigation measures if none of the subdivision measures are feasible, or (3) may be
disapproved for a reason unrelated to school facilities impacts; but (4) may not be
disapproved or conditioned due to school impacts.
cc: Honorable Mayor and City Council Members
David D. Rowlands, Jr., City Manager
Sid Morris, Assistant City Manager
Bob Leiter, Director of Building & Planning
John Kaheny, City Attorney
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