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HomeMy WebLinkAboutAgenda Packet 2002/11/19CITY COUNCIL AGENDA November 19, 2002 6:00 p.m. Council Chambers Public Services Building · 276 Fourth Avenue, Chula Vista CI'IY OF CHUIA VISTA City Council Patty Davis Stephen C. Padilla Jerry R. Rindone Mary Salas Shirley A. Horton, Mayor City Manager David D. Rowlands, Jr. City Attorney John M. Kaheny City Clerk 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 19, 2002 6:00 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 · OATH OF OFFICE: Juan Celaya - Human Relations Commission PRESENTATION OF A PROCLAMATION BY MAYOR HORTON TO SUNNY SHY, ASSISTANT DIRECTOR OF RECREATION, RECOGNIZING HER AS SHE RETIRES FOR HER YEARS OF SERVICE WITH THE CITY OF CHULA VISTA RECREATION DEPARTMENT, HER ADVOCACY OF THE RECREATION PROFESSION, AND DEVELOPMENT OF THE POSITIVE RECREATION PROGRAMS THAT SHE WAS INSTRUMENTAL IN DEVELOPING CONSENT CALENDAR (Items 1 through 12) 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 after Action Items. Items pulled by the public will be the first items of business. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHAPTER 17.10 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO UPDATES IN THE PARKS ACQUISITION AND DEVELOPMENT FEES TO PAY FOR PARKLAND ACQUISITION AND VARIOUS PARK FACILITIES WITHIN THE CITY OF CHULA VISTA'S GENERAL PLAN AREA BOUNDARY (SECOND READING AND ADOPTION) ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHAPTER 3.50 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO UPDATES IN THE PUBLIC FACILITIES DEVELOPMENT IMPACT FEES TO PAY FOR VARIOUS PUBLIC FACILITIES WITHIN THE CITY OF CHULA VISTA'S GENERAL PLAN AREA BOUNDARY (SECOND READING AND ADOPTION) Adoption of the ordinance amending Chapter 17.10 of the Chula Vista Municipal Code updates the amount of parkland acreage to be dedicated for residential development, which contributes to an increase in the inqieu fees for park development and land acquisition. The new ordinance also redbfines park development improvement specifications. Adoption of the ordinance amending Chapter 3.50 of the Chula Vista Municipal Code adds a new recreation component to the public facilities to be financed by the Public Facilities Development Impact Fee. The new ordinance also redefines various land use categories for determining fees, and updates the impact fee structure (Director of Budget and Analysis) Staff recommendation: Council place the ordinances on second reading for adoption. ORDiNANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE FOURTH AMENDMENT TO THE SOUTHWEST REDEVELOPMENT PLAN (SECOND READING AND ADOPTION) The Redevelopment Agency's authority to use eminent domain within the Southwest Redevelopment Area will expire on November 27, 2002 unless the City Council amends the Redevelopment Plan extending that authority for an additional 12-year period. Adoption of the ordinance approves this amendment to the Southwest Redevelopment Plan, extending the time period to use eminent domain to acquire cormmercial or industrial properties needed to implement a project that would benefit the community. (Director of Community Development) Staff recommendation: Council place the ordinance on second reading for adoption. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A DONATION IN THE AMOUNT OF $50, AMENDiNG THE FISCAL YEAR 2003 BUDGET, AND APPROPRIATiNG SAID DONATED FUNDS (4/5THS VOTE REQUIRED) The Fire Prevention Bureau recently received a donation in the amount of $50 from COSTCO. The donation was presented to the Fire Prevention Bureau to support community outreach efforts. (Fire Chief) Staffrecommendation: Council adopt the resolution. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A DONATION IN THE AMOUNT OF $3,000, AMENDING THE FISCAL YEAR 2003 BUDGET, AND APPROPRIATING SAID FUNDS (4/5THS VOTE REQUIRED) The Fire Department has received an unanticipated donation of $3,000 from an anonymous donor. The department is recommending the funds be used to create a Fire Department Honor Guard. The Honor Guard will be the first one in the department's 82- year history. The eleven-member guard will represent the department at commtmity events. (Fire Chief) Staff recommendation: Council adopt the resolution. Page 2 - CouncilAgenda 11/19/02 8A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED GRANT FUNDS IN THE AMOUNT OF $35,515, AMENDING THE FISCAL YEAR 2003 BUDGET, AND APPROPRIATING SAID FUNDS (4/STHS VOTE REQUIRED) As part of the Fiscal Year 2001 Office of Justice Programs, State Domestic Preparedness Program, local fire departments are scheduled to receive grant funding via the County of San Diego, Office of Emergency Services. Based on a population allocation formula, the Chula Vista Fire Department is eligible to receive $35,515. These funds may be used to purchase specified domestic preparedness equipment. After reviewing the list of equipment, the Fire Department is reconunending these funds be used to purchase breathing apparatus. (Fire Chief) Staff recommendation: Council adopt the resolution. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHAPTER 18.54 OF THE CHULA VISTA MUNICIPAL CODE, RELATING TO FLOODPLAIN REGULATIONS The City's Floodplain Ordinance, Chapter 18.54 of the Municipal Code, was originally adopted by Council on November 14, 1978. Revisions to the ordinance are necessary in order to meet the minimum requirements of the Federal Emergency Management Agency. (Director of Public Works) Staffrecommendation: Council place the ordinance on first reading. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROViNG A FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND MUNIFINANCIAL FOR ENGINEERING SERVICES, APPROVING THE APPROPRIATION OF $200,000 FOR SAID FIRST AMENDMENT FROM THE AVAILABLE FUND BALANCE IN THE TRANSPORTATION DEVELOPMENT IMPACT FEE FUND, AND AUTHORIZiNG THE MAYOR TO EXECUTE SAID AMENDMENT (4/5THS VOTE REQUIRED) The City Council approved Resolution No. 2001-344 on October 9, 2001, approving a contract with MuniFinancial for auditing and administering the City's Development Impact Fee (DIF) programs. This agreement for engineering auditing services allows the City to respond to the ongoing DIF audit/credit work and streamline the permit issuance process. (Director of Public Works) Staffrecommendation: Council adopt the resolution. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH MUNIFINANCIAL, LLC FOR THE SPECIAL TAX CONSULTANT SERVICES REQUIRED FOR THE ANNEXATION OF VILLAGE SIX AND VILLAGE ELEVEN TO IMPROVEMENT AREA A OF THE EXISTING OTAY RANCH PRESERVE MAINTENANCE DISTRICT (CFD 97-2), AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT Page 3 - Council Agenda 11/19/02 10 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH BEST BEST AND KRIEGER, LLP, FOR THE SPECIAL TAX LEGAL COUNSEL SERVICES REQUIRED FOR THE ANNEXATION OF VILLAGE SIX AND VILLAGE ELEVEN TO IMPROVEMENT AREA A OF THE EXIST1NG OTAY RANCH PRESERVE MAINTENANCE DISTRICT (CFD 97-2), AND AUTHORIZING THE MAYOR TO EXECUTE SAiD AMENDMENT The consultant, MuniFinancial, LLC has been providing special tax consultant services, and the Consultant, Best, Best and Krieger, LLP has been providing the Special Tax Legal Counsel necessary for the formation of many Maintenance Commtmity Facilities Districts within the City of Chula Vista. The scope of their services included in the original agreement was to provide special tax services for the formation of Maintenance Community Facilities Districts for Eastlake III Woods & Vistas, McMillin Company Village Six, Otay Ranch Village Six, Brookfield-Shea-Otay Village Eleven, Village Twelve Freeway Commercial and Eastlake Land Swap Parcel, pursuant to the "Mello- Roos Community Facilities Act of 1982". Staff is recommending that the consultants' agreements be amended to enable the consultants to continue to provide needed services for the required annexation of Villages Six and Eleven to Improvement Area A of CFD 97-2. (Director of Public Works) Staff recommendation: Council adopt the resolutions. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROViNG THE SECOND AMENDMENT TO THE ACQUISITION/FINANCING AGREEMENT WITH MCMILLIN OTAY RANCH FOR COMMUNITY FACILITIES DISTRICT NO. 97-3, ( MCMILLIN OTAY RANCH SPA ONE), AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT On December 8, 1998, Council approved the acquisition/financing agreement for Community Facilities District No. 97-3 (CFD 97-3). This agreement set forth the conditions and procedures for acquiring the McMillin Otay Ranch SPA One improvements from the developer. The proposed second amendment will provide the developer with the option to use proceeds from CFD 97-3 to satisfy performance obligations set fourth in the agreement for financing the construction of Olympic Parkway and related roadway improvements. (Director of Public Works) Staff recommendation: Council adopt the resolution. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROViNG FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP AND AGREEMENT AFFECTING REAL PROPERTY, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT ON BEHALF OF THE CITY RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA, NNP-TRIMARK SAN MIGUEL RANCH AND SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP REGARDiNG TRANSFER OF RIGHT- OF-WAY FOR THE CONSTRUCTION AND OPERATION OF THE STATE ROUTE 125 SOUTH TOLL ROAD, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT ON BEHALF OF THE CITY Page4 - CouncilAgenda 11/19/02 The City has entered into two agreements relating to the construction of State Route 125 (SR-125) Toll Road. The first agreement was dated April 16, 2002, and was between the City and San Diego Expressway Limited Partnership (SDELP) to facilitate development of the SR-125 Toll Road facility within the ~eographic boundaries of the City. The second agreement, dated July 23, 2002, was between the City, NNP-Trimark San Miguel Ranch and SDELP regarding the transfer of right-of-way for the construction and operation of the SR-125 Toll Road facility. Both agreements specify that the escrow deadline is December 31, 2002, and that if that date is not met, the agreement is terminated. Due to certain actions outside the control of SDELP, that date cannot be met, and an amendment for both agreements needs to be approved in order to extend the date of termination. (Director of Public Works) Staffrecommendation: Council adopt the resolutions. 11. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA PLACING THE HOUSE LOCATED AT 435 "E" STREET, THE WILLIAM ADA MONROE HOUSE, ON THE CITY OF CHULA VISTA'S LIST OF HISTORIC SITES IN ACCORDANCE WITH MUNICIPAL CODE SECTION 2.32.070(A) The property owner of 435 "E" Street has requested that her property be considered for inclusion on Chula Vista's List of Historic Sites. (Director of Planning and Building) Staff recommendation: Council adopt the resolution. 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 NOVEMBER 12, 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. ORAL COMMUNICATIONS Persons speaking 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. Page 5 - Council Agenda 11/19/02 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. 13. CONSIDERATION OF ADOPTION OF AN URGENCY ORDINANCE MODIFYING THE EXISTING TELEGRAPH CANYON SEWER PUMPED FLOWS DEVELOPMENT iMPACT FEE URGENCY ORDINANCE On October 22, 2002, City Council approved Urgency Ordinance No. 2885-A, modifying Ordinance No. 2582. This proposed urgency ordinance enables the City to continue to collect the fee during the sixty-day waiting period before the regular ordinance becomes effective. (Director of Public Works) Staff recommendation: Council conduct the public heating and adopt the following urgency ordinance: URGENCY 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 (4/5THS VOTE REQUIRED) 14. CONSIDERATION OF ADOPTION OF AN ORDINANCE AMENDING CHAPTER X (BUILDING AND HOUSING) OF THE CITY'S MASTER FEE SCHEDULE BY INCREASING BUILDING PERMIT FEES TO REFLECT iNCREASED CONSTRUCTION iNSPECTION COSTS, AND ADOPTION OF A RESOLUTION APPROVING VARIOUS PERSONNEL AND EQUIPMENT ADDITIONS IN THE PUBLIC WORKS DEPARTMENT (CONTINUED FROM 11/12/02) As part of its strong commitment to promoting the health and safety of the comanunity at large, the City of Chula Vista currently requires and conducts a comprehensive set of building-related inspections on all new construction. The recent adoption of a new National Pollution Discharge Elimination System (NPDES) permit by the San Diego Regional Water Quality Control Board has created the need for extensive additional inspections to ensure that the city remains in compliance with the compulsory requirements of the permit. The city's current inspection staff is insufficient to carry out this increased workload and additional staffing is therefore required. Staff is recommending an adjustment to the building permit fees to reflect the increased costs associated with inspection of new construction. (Director of Public Works) Staff recommendation: Council conduct the public hearing, place the following ordinance on first reading, and adopt the resolution: ORDINANCE OF THE CiTY COUNCIL OF THE CITY OF CHULA VISTA, AMENDING CHAPTER X (BUILDING AND HOUSING) OF THE CITY'S MASTER FEE SCHEDULE BY INCREASING BUILDING PERMIT FEES TO REFLECT INCREASED CONSTRUCTION INSPECTION COSTS Page 6 - Council Agenda 11/19/02 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CREATiNG A NEW CLASSIFICATION OF STORM WATER COMPLIANCE iNSPECTOR iN THE CHULA VISTA EMPLOYEES ASSOCIATION (CVEA) BARGAINING UNIT; AMEND1NG THE FISCAL YEAR 2003 BUDGET TO ADD TWO STORM WATER COMPLIANCE INSPECTORS, ONE MAINTENANCE WORKER IAI, AND ONE SENIOR MAINTENANCE WORKER TO THE PUBLIC WORKS DEPARTMENT; TRANSFERRING $79,530 FROM SUPPLIES AND SERVICES TO TRANSFERS OUT IN THE STORM DRAIN REVENUE FUND; APPROPRIATING $114,652 FOR PERSONNEL SERVICES AND RELATED SUPPLIES AND SERVICES IN THE PUBLIC WORKS DEPARTMENT, BASED ON UNANTICIPATED REVENUE FROM TRANSFERS IN FROM THE STORM DRAIN FUND AND BUILDING PERMIT FEES; TRANSFERRING $22,100 FROM SUPPLIES AND SERVICES TO CAPITAL IN THE FISCAL YEAR 2003 STORM DRAIN REVENUE FUND BUDGET TO PURCHASE AN iNSPECTION VEHICLE AND RELATED EQUIPMENT; AND APPROPRIATiNG $20,600 FROM THE AVAILABLE BALANCE OF THE PUBLIC FACILITIES DEVELOPMENT IMPACT FEE FUND FOR THE PURCHASE OF THE SECOND INSPECTION VEHICLE (4/5THS VOTE REQUIRED) ITEMS PUl,LED FROM THE CONSENT CALENDAR OTHER BUSINESS 15. CITY MANAGER'S REPORTS Scheduling of meetings 16. MAYOR'S REPORTS 17. COUNCIL COMMENTS Jerry Rindone: Ratification of appointment to the Community School Task Force - Mike Green (to replace Mikki Zbikowski) CLOSED SESSION Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council Meeting at the City Clerk's office in accordance with the Ralph 3/~ Brown Act (Government Code 54957. 7). 18. CONFERENCE WITH LEGAL COUNSEL REGARDiNG ANTICIPATED LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(B) · One case 19. CONFERENCE WITH LEGAL COUNSEL REGARDiNG EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(A) Building Industry Association of San Diego v. State Water Resources Control Board, et al; San Diego Superior Court Case No. GIC 780263 Page 7 - Council Agenda 11/19/02 20. CONFERENCE WITH REAL PROPERTY NEGOTIATOR PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: Assessor's Parcel No. i517-072-08 (located at 1196 Industrial Boulevard) Negotiating Parties: City of Chula Vista (Scott Noya of Daley & Heft) and Lindley Family Trust, Owner Under Negotiation: Price and terms for acquisition 21. CONFERENCE WITH REAL PROPERTY NEGOTIATOR PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: Assessor's Parcel No. 618-200-59 (approximately 5.2 acres of vacant commercial land located on Oxford Street, between Broadway and Industrial Boulevard) Negotiating Parties: City of Chula Vista (Andy Campbell, Lyle Haynes) and Robert B. Lapidus, Esq. (on behalf of the owner) Under Negotiation: Price and terms for acquisition 22. CONFERENCE WITH REAL PROPERTY NEGOTIATOR PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: The Chula Vista Mmficipal Golf Course on Bonita Road and seven adjacent acres owned by the City. Negotiating Parties: City of Chula Vista (Sid Morris), American Golf Corporation, County of San Diego, and Bitterlin Development Corporation. Under Negotiation: Price and terms of disposition and/or lease. ADJOURNMENT to an Adjourned Regular Meeting to be held in Closed Session on November 26, 2002 at 4:00 p.m. in the Council Conference Room, and thence to the Regular Meeting of November 26, 2002, at 6:00 p.m. in the Council Chambers. Page 8 - Council Agenda 11/19/02 ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY OF CHULA VISTA, CALIFORNIA, AMENDING CHAPTER 17.10 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO A DEVELOPMENT IMPACT FEE TO PAY FOR PARK ACQUISITION AND DEVELOPMENT WITHIN THE CITY OF CHULA VISTA'S GENERAL PLAN AREA BOUNDARY WHEREAS, the City Council is placing an ordinance on its first reading which will increase the development impact fee to finance public facilities within the City of Chula Vista; and WHEREAS, pursuant to Government Code Section 66017(a), the fees increased by that ordinance will not become effective until sixty (60) days after its second reading; and WHEREAS, developments in the City which will impact various parks will be applying for final map approval during the interim period before the development impact fee increase 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, state law requires said urgency ordinance to be adopted by a four-fifths vote; and WHEREAS, cost estimates to develop the needed public parklands and park facilities have been updated; and WHEREAS, the cost to acquire suitable parkland has been updated; and WHEREAS, the average number of people occupying new households has increased, placing a greater impact on parks and recreation usage; and WHEREAS, Park Acquisition and Development fees have historically been insufficient to construct large recreation facilities; and WHEREAS, the City Council adopted the Parks and Recreation Master Plan by Resolution , on November 12, 2002; NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: 1 SECTION 1: Findinqs The City Council finds that developers of land within Chula Vista's General Plan area boundary should be required to mitigate the burden created by development through the payment of an impact fee for acquisition of public parkland and development of public park facilities within the boundaries of the development and for public facilities outside the boundaries of the development which are needed to provide service to the development in accordance with City standards; and The City Council finds, affer consideration of the evidence presented to it including the "Park Acquisition & Development Fee,. 2002 Update", that certain amendments are necessary in order to assure that there are sufficient funds available to finance the facilities necessary to maintain public service levels; and The City Council finds, based on the evidence presented at the meeting, the City's General Plan, the City's Parks & Recreation Master Plan, and the various reports and information received by the City Council in the ordinary course of its business, that the imposition of park acquisition and development fees on all development for which final map approval has not been issued is necessary in order to protect the public health, safety and welfare and in order to assure effective implementation of the City's General Plan; and The City Council finds that the amount of the amended fees levied by this ordinance does not exceed the estimated cost of providing public park facilities. SECTION 2: Finding of Urgency That the City Council of the City of Chula Vista finds that it is necessary that its development impact fee for public parks go into effect immediately in order that all developers of properties in the City pay their fair share of the cost of public parks improvements relating to the impacts caused by their development. Immediate implementation of this fee is necessary due to the current and immediate threat to the public welfare that will result should there be a shortfall in the amount of money necessary to pay for the various public park facilities thereby resulting in a decline in service levels. The City Council finds that the prospect of a shortfall, inadequacy of park facilities for the public welfare and concerns about an increased charge to remaining property owners constitutes a current immediate threat to the public health, welfare and safety justifying the immediate imposition of this fee. SECTION 3: That Sections 17.10.020, 17.10.040, 17.10.050, 17.10,060 and 17.10,100 of the Chula Vista Municipal Code shall be amended to read as follows: 17.10.020 Determination of park and requirements benefiting regulated subdivisions. recreational The park and recreational facilities for which dedication of land and improvements thereon and/or payment of a fee is required by this chapter shall be those facilities as herein set forth in CVMC 17.10.050 and _a_s_generally set forth in the Parks and Recreation Master Plan and in the__park and recreational element of the general plan of the city adopted by Resolution No. 3519 on September 22, 1964, and as thereafter amended. (Ord. 2243 § 1, 1987; Ord. 1668 § 1, 1976). 17.10.040 Area to be dedicated - Required when - Amounts for certain uses. The amount of parkland dedication required, in accordance with CVMC 17.10.010 through 17.10.110, is based on a standard of three acres per 1,000 people and shall be offered at the time of filing of the final map. The area to be dedicated shall be as follows: A. Single-family dwelling units, includinq sinqle family detached homes and detached condominiums. 3.22_3_.5~2 persons per dwelling unit, 423~46_0 square feet per unit, or one acre per 103 9~ units; C. Dup~es~2;48¢ersen..s ,,-,-,4,-,,,~ ..... ~* 325 ....... feet-pepunit, or one acre per 134 units; !3. Multiple-family dwelling units, including attached condominiums, townhouses, d_uplexe_s, triplexes and apa_rtments,_2.21 2.6__1 persons per dwelling unit, 288 344 square feet per unit, orone acre per 151 128 units; E C. Mobilehomes, 1.64 persons per dwelling unit, 21521~ square feet per unit, or one acre per 203 units; FR. Residential and transient motels/hotels, 1.50 persons per dwelling unit, 196 square feet per unit, or one acre per 222 units. (Ord. 2243 § 1, 1987;Ord. 1806 § 1, 1978; Ord. 1668 § 1, 1976). Dev¢lo~pmen~=proigcts wh ch have receiyed tentat ve msB approypJ az of November 12~2Q02, shall not be_re_quired to contribute additional acreage based on the revised pcrsons~er dwe ng factors as set forth above. 3 17.10.050 Park development improvements -Specifications. In addition to the dedication of land as required in CVMC 17.10.040, it shall be the responsibility of the subdivider to develop all or a portion of such land for neighborhood or community park purposes to the satisfaction of the director of t~ buildinq and park construction. All parks shall include, to the satisfaction of the city, the following elements; meet the following minimum standards; and will be designed, developed, and maintained in accordance with the requirements of the city landscape manual and the Chula Vista Parks and Recreation Master Plan: Grading shall be in accordance with the grading ordinance, street design manual, _the Chula Vista Parks and Recreation Master Pla_n, and the city landscape manual. Improvements that may be required by the city may include: 1. Drainage system. 2. Street improvements. 3. Parking lot with lighting. 4. Concrete circulation system. 5. Security lighting system. 6. Park fixtures, including, but not limited to identification and informational signage, picnic tables, benches, trash receptacles, hot ash containers drinking fountains and bike racks, shall be provided and installed. 7. Landscaping, including trees, shrubs, ground cover, and turf. 8. Automatic irrigation system. 9. Restroom/maintenance facility. 10. Play areas, with equipment for preschoolers and primary school-age children, shall be installed. Disabled individual accessible surfacing shall be installed. 11. One large~--~ale picnic shelte~_.tab~l.e_ shall be provided for every !,000~0~ peop e. Half of required number of picnic tables shall be provided under a shelter. 12. The following sports facilities (night lighting may be required for all of the following): a. One tennis court shall be provided for every.,vw~3,200 people. b. One baseball/so~ball (Or.qan zed Adult) field shall be provided for every 5~0,~00=12 200 people. c. One baseball (Or.qanized Youth) field shall be provided for every 4,400 people. d. One baseball (Practice/Informal) field shall be provided fo_[ every 3,3_00 people~. e. One softball field (Organized Adult) shall be provided for every 7,900 people. f. One softball field (Organized Youth) shall be provided for every 12,700 people. 9. One softball field (Practice/Informal) shall be provided for every 2,850 people. 6. h. One basketball court shall be provided for every ~ nn 2~! 5__0_ people. (t. i. One soccer field (Organ zed Games) shall be provided for every ~. 0,000 5_,40~0 people. j. One soccer field (Practice/informal) shall be provided for every 2,450 people. All utilities shall be extended to the property line. m .................... ~ ....... for~ 3.O~9 li~sha!~ k ...... ;~ ~ ........ ~ nnn .... ~ a ................................................. ¢ ~-, k, u~ ....... =,,-o ...... ~-,,,~. (Ord. 2616 ~ 2, 1994; Ord. 2243 ~ 1, 1987; Ord. 1668 ~ 1, 1976). 17.10.060 Criteria for area to be dedicated. Acceptance of land for parkland is at the city council's discretion, and in exercising its discretion, the council may consider the following criteria, in addition to any other the council considers - relevant: A. Topo§raphy, soils, soil stability, and drainage location of land in subdivision available for dedication. B. Size and shape of the subdivision and land available for dedication. C. Physical relationship of the site to the surrounding neighborhood. D. Location of the site with regard to accessibility to the residents of the neighborhood and its contribution to neighborhood security. E. The amount, usability, and location of publicly owned property available for combination with dedicated lands in the formation of public park and recreation facilities. F. Recommendation of the parks and recreation commission. An offer of dedication may be accepted or rejected by the city council. 5 Consistency with the goals and policies contained in the Chula Vista Parks and Recreation Master Plan. (Ord. 2243 § 1, 1987; Ord. 1961 § 1, 1982; Ord. 1668 § 1, 1976). 17.10.100 Collection and distribution of fees. A. Prior to the recordation by the city of a final subdivision map or recordation by the city of a parcel map or release of either a final subdivision map or pamel map to a developer for recordation, any required fees shall have been paid to the city unless an agreement has been entered into between city, approved by the city council, and the map applicant providing for the subsequent payment of the fee, but in no event later than 60 days after map approval. Said agreement shall provide that such payment shall be, to the satisfaction of the city manager and city attorney, adequately secured by sufficient surety or letter of credit, and shall further provide for interest from date of final map approval at city' s average earnings rates, computed and compounded quarterly, experienced by the city on its average investments (as determined by the city) ("base interest rate"), for the first 60 days after map approval, and thereafter at the base interest rate plus two percentage points until paid, together with any attorney fees and costs incurred in enforcing said agreement. Notwithstanding any other provision of law, the city may withhold final or interim inspection of units for which building permits may have been issued and may withhold issuance of additional building permits, certificates of occupancy if applicable, or any other processing of entitlements on any property or improvements included within the territory of the map so approved or otherwise owned by applicant, until the required fees are received by the city. Any land to be contributed for the purposes outlined in this chapter shall be dedicated to the city and shown on the final subdivision or parcel map at the time of approval. The director of finance shall be responsible for the collection and distribution of fees as set forth in this chapter. Feesm~le .... ¢ .... ;,',hh,~,~'hr,~,-,I ,'~n~,l ....... ;* ..... bo B. Planned developments shall be eligible to receive a credit as determined by the city council, against the amount of land required to be dedicated, or the amount of the fee imposed, for the value of prJwte open space within the development which is usable for active recreational uses. Such credit, if given, shall be determined on a case-by-case basis. (Ord. 2592 ~ 1, 1994; Ord. 2243 ~ 1, J~87; Ord. 1668 ~ 1, 1~7~). 6 SECTION 5: Expiration of this ordinance This ordinance shall be of no further force and effect 30 days after its adoption. SECTION 6: 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 within 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 7: Effective Date This Ordinance shall become effective immediately upon four-fifths vote. Presented by Approved as to form by Cheryl Fruchter Director of Budget and Analysis John M. Kaheny City Attorney J:~Attorney\Ordinance\PAD Urgency Oral 1.doc 7 ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA, CALIFORNIA, AMENDING CHAPTER 3.50 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO A DEVELOPMENT IMPACT FEE (PFDIF) TO PAY FOR VARIOUS PUBLIC FACILITIES WITHIN THE CITY OF CHULA VISTA'S GENERAL PLAN AREA BOUNDARY WHEREAS, in March 2002, the City Council of the City of Chula Vista adopted Ordinance No. 2855, increasing the Public Facilities Impact Fee (PFDIF) from $2,618 to $4,888; and WHEREAS, cost estimates for the current list of needed public facilities have been updated; and WHEREAS, a new Recreation component of the PFDIF will include funding for major recreation facilities such as community centers, gymnasiums, and swimming pools; and WHEREAS, separate PFDIF allocation factors have been derived for four land use categories; WHEREAS, the impact fee is solely based upon that portion of project costs which are attributable to new development; and WHEREAS, the fee increase was developed in conjunction with developers and the Building Industry Association (BIA); and WHEREAS, development is considered to take place in accordance with the Phasing Plan established by the City's Planning Department which is subject to change depending on actual development phasir~g; and WHEREAS, the City Council adopted the Parks and Recreation Master Plan by Resolution , on November 12, 2002; NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES ORDAIN AS FOLLOWS: SECTION 1. That the existing Ordinance Nos. 2432, 2320, 2554, 2810 and 2855 are hereby superseded, and a new Chapter 3.50 is hereby added to the Chula Vista Municipal Code to read as follows: 3.50.010 General Intent. The city's general plan land use and public facilities elements require that adequate public facilities be available to accommodate increased population created by new development within the city of Chula Vista. The city council has determined that new development will create adverse impacts on the city's existing public facilities which must be mitigated by the financing and construction of certain public facilities which are the subject of this chapter. New development contributes to the cumulative burden on these public facilities in direct relationship to the amount of population generated by the development or the gross acreage of the commercial or industrial land in the development. The city council has determined that a reasonable means of financing the public facilities is to charge a fee on all developments in the city of Chuta Vista. Imposition of the public facilities development impact fee on all new development for which building permits have not yet been issued is necessary in order to protect the public safety and welfare thereby ensuring ~nsure effective implementation of the city's general plan. 3.50.020 Definitions. For the purposes or this chapter, the following words or phrases shall be construed as defined in this section, unless from the context it appears that a different meaning is intended. "Building permit" means a permit required by and issued pursuant to the Uniform Building Code as adopted by reference by this city. B. "Developer" means the owner or developer of a development. "Development permit" means any discretionary permit, entitlement or approval for a development project issued under any zoning or subdivision ordinance of the city. "Development project" or "development" means any activity described as the following: Any new residential dwelling unit developed on vacant land; o Any new commercial/office or industrial development constructed on vacant land; O Any expansions to established developments or new developments on non-vacant land in those land use categories listed !n ! =,".d 2above, if the result is a net increase in EDUs dwellingunits. The fee shall be based solely on this net EDUdwel!ing unit increase. o Any new or expanding special land use project; Any special purpose project developed on vacant land or non-vacant tand, or expanded within a pre-existing site, if the result is a net increase in FDUsdwe!ling units. The fee shall be based solely on this net FDUdwel!ing unit increase. o Any other development project not listed above but described in Section 65927 and 65928 of the State Government Code. Eb "Community purpose facility" means a facility which serves one of the following purposes: Social service activities, including such services as Boy Scouts and Girl Scouts, Boys and Girls Club, Alcoholic Anonymous and services for the homeless; Public schools; 3. Private schools; 4. Daycare; 5. Senior care and recreation; 6. Worship, spiritual growth and development; "Special land use" means any non-residential, non-commercial/office or non- industrial development project (e.g., Olympic Training Center, hospitals, utilities), or non-special purpose project. "Special purpose project" means any for-profit community purpose facility (e.g. daycare). "Engineer reportI' refers to the April 20, 1993 "development impact fees for public facilities" report. I. 'Extraord'nary project cost increases means increases resulting from costs that could not have been reasonably foreseen at the time a project budget was established. J. "Extraordinary EDU EDU dwelling unit change" means an increase or decrease in the number of remaining plannedequivalen~ e~ residential dwelling units (:~Us)_-- _ or commerc!~lJi: .ndustrial acres for which building permits have not yet been pulled, which changes the existing total by more than 2,000 dwellinq units or 200 commercial/industrial acres EDUs~(_Ord 2¢55'1, 2002). 3 3.50.030 Public Facilities to be Financed by the Fee. The public facilities ("facilities"), which are the subject matter of the fee, include buildings, equipment and related one-time start-up costs or portions thereof, as detailed in Subsection C below and in the engineer report on file in the office of the city clerk. The city council may modify or amend this list of facilities by written resolution in order to maintain compliance with the city's general plan or the capital improvement program. The facilities are as follows: 2. 3. 4. 5. 6. 7. 8. 9. Civic Center Expansion Police Department Facilities and Equipment Corporation Yard Relocation/Expansion Library System Expansion Fire Suppression System Expansion Geographic information system expansion; Computer system expansion; Telecommunication system expansion; Records management system expansion. 10. Major recreation facilities (community centers, gymnas ums, swimming pools). {Ord 2855'1j 2002% 3.50.040 Territory to which Fee Applicable. The area of the city of Chuia Vista to which the fee herein established shall be applicable shall be the territorial limits of the city of Chula Vista ("territory") as they may from time to time be amended. (Ord 2554 '1, 1993). 3.50.050 Establishment of Fee. A development impact fee ("fee"), *'- .... ~'~4*y4~seed~!!mg' ' unit ("EDU")-basis, is hereby established to pay for the facilities within the territory. The fee shall be paid upon the issuance of building permits for each development project within the city of Chula Vista, except that, at the discretion of the city manager, a developer may prepay all or part of civic center expansion ~nd/or ~i6e4ae.:.ili~es fees that would be applicable to the developer's future development projects. Prepayment would occur at the then current rate; however, the developer has sole responsibility for paying subsequent fee increases resulting from (1) "extraordinary project cost increases", (2) normal annual adjustments in the Consumer Price Index (CPI) or Building Construction Index (BCI), or (3) "extraordinary EDU dwelling unit changes". (Ord 2855% 2C~02). 4 3.50.060 Determination of Fees by Land Use Category~ For purpases af this fee, single family dwelling units shall include single family detached homes and detached aandaminiums~ multi-family dwelling units shall include attached condominiums, townhouses, duplexes, triplexes, and apartments. Commercial/office and industrial development proiects shall be charged on a per acre basis. Development i~pact fees for single family, multi-family~ commercial and industrial land uses shall be based on the demand for service generated by that land use, for each public facility set forth in CVMC 3.50.030: SERVICE DEMAND GENERATED BY LAND USE Single Multi- family family dwelling dwelling Commercial Industrial PUBLIC FACILITY unit unit Acre Acre Police Department Facilities and _Equipment .1725 .4125 .3825 .0325 Corporation Yard .395 .288 .225 .092 _Relocation/Expansion Library System Expansion (residential only) .524 .476 .000 .000 -~ire Suppression System Expansion .380 .370 .200 .050 Major Recreation Facilities .524 .476 .000 .000 (residential only) GENERAL GOVERNMENT Civic Center Expansion .357 .408 .201 .034 Geographic Information System - __ Expansion .357 .408 .201 .034 Computer System Expansion .357 .408 .201 .034 Telecommunication System Expansion .357 ' .408 .201 .034 Records Management System .357 .408 .201 .034 Expansion Administration -- .357 .408 .201 .034 The EDU rate for each special land use development project, as defined in Section 3.50.020, shall be eguivalent to ehar~ the commercial/office rate of 5.00 EDUs per gross acre of land_.~xcept th3t th9 The Olympic Training Center shall be~uivalent te charge,at the industrial rate of ! .25 EDU's per gross acre of land. The EDU rate for each special purpose project, as defined in Section 3.50.020, shall be equivalent to one- half charged ~t the commerciaJ/g?!_c~ rateef~ EDUs per gross acre of land. The charges shall be those outlined in Section 3.50.090.C. The fee multiplied by the total number of EDUs dwelling units or acres within a given development project represents a developer's fair share ("fair share") for that development project. 5 3.50.070 Time to Determine Amount Due. The fee for each development shall be calculated at the time of buildingpermit issuance and shall be the amount as indicated at that time, and not when the tentative map or final map were granted or applied for, or when the building permit plan check was conducted, or when application was made for the building permit, except that a developer of a development project providing Iow and/or moderate-income housing in accordance with Section ill, Objective 1 of the 1991 housing element of the general plan may request' authorization to prepay or defer the fee for up to 500 EDUs and said request may be approved at the sole discretion of the city manager. In order to facilitate those Iow and/or moderate-income projects which are planned for construction through March 24, 2005, the fee for said projects shall be the fee existing as of March 25, 2002. (Ord 2855'1, 2002). 3.50,080 Purpose and Use of Fee. The fee collected shall be used by the city for the following purposes in such order and at such time as determined by the city council: To pay for such of the facilities that the city council determines should be constructed, installed or purchased at that time, or to reimburse the city for facilities funded by the city from other sources. To reimburse developers who have been required or permitted by Section 3.50.140.A to construct, install or purchase approved facilities listed in Section 3.50.030.C, in such amounts as the council deems appropriate. To repay any and all persons who have, pursuant to prior fee ordinance 2320 or 2432, or pursuant to this ordinance, advanced or otherwise loaned funds for the construction of a facility identified herein. To repay the city for administration costs associated with administration of the fee. 3.50.090 Amount of Fee. The fee shall be the amounts set forth in Sect[on 3.50.090.B and C. The city council may adjust the amount of this fee as necessary to reflect 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, or such other basis; changes in the type, size, location or cost of the facilities to be financed by the fee, changes in land use designation in the city's general plan, and upon other sound engineering, financing and planning information. Adjustments to the fee may be made by resolution amending this section. The fee shall have portions which are, according to the engineer report, allocated to a specific facility ("fee components") which correspond to the costs of the various facilities, plus the administration cost for the fee, which is a percentage of the fee components' total cn~t ,~;,,i,~,.,~ h,, *,.*.., :nu.' oo ;,,,~;,...,~,~ ;., q,~,.,; .... The fee shall be the following, depending on land use: Land Use Residential - Single lam y dwellings Residential - Multi-family dwellings Commercial/Office Industrial Special Land Use Olympic Training Center Public Purpose Nonprofit community purpose facility Special purpose project, inc!uding for-prcfit day c=ro Fee $4,888 $5,048/DU $4,726/DU $20,860 $20,764/acre $20,860 $3,848/acre $20,860 $20,764/acre $6,! !0 $3,848/acre Exempt Exempt $!4,664 $10,382/acre 3.50.100 Development Projects Exempt from the Fee. Development projects by public agencies shall be exempt from the provisions of the fee if those projects are designed to provide the public service for which the agency is charged ("public purpose"). Community purpose facilities which are not operated for profit ("non-profit community purpose facilities") are also exempt inasmuch as these institutions provide benefit to the community as a whole including all land use categories which are the subject matter of the fee. The city council hereby determines that it is appropriate to spread any impact such non-profit community purpose facilities might have to the other land use categories subject to the fee. In the event that a court determines that the exemption herein extended to community purpose facilities shall for any reason be invalid, the city council hereby allocates the non- profit community purpose facilities' fair share to the city of Chula Vista and not to any of the land use categories which are the subject matter of the development impact land use categories. Development projects which are additions or expansions to existing dwelling units or businesses, except special land use projects, shall be exempt if the addition or expansion does not result in a net increase in dwelling units or commercial/industrial acreage 3.50.110 A. Authority for Accounting and Expenditures. Fees collected before the effective date of the ordinance codifying this section. 1. All fees which have accrued shall remain in separate accounts ("accounts") corresponding to the facilities listed in Section 3.50.030, as 7 established by the director of finance, and shall only be expended for the purposes associated with each facility account. The director of finance is authorized to maintain accounts for the various facilities identified in this chapter and to periodically make expenditures from the accounts for the purposes set forth herein. Funds collected on or after the effective date of the ordinance codifying this section. The fees collected shall be deposited into a public facility financing fund ("public facilities development impact fee fund," or alternatively herein "fund") which is hereby created and shall be expended only for the purposes set forth in this chapter. The director of finance is authorized to establish a single fund for the various facilities identified in this chapter and to periodically make expenditures from the fund for the purposes set forth herein. 3.50.120 Findings. The city council finds that collection of the fee established by this chapter at the time of the building permit issuance is necessary to provide funds for the facilities and to ensure certainty in the capital facilities budgeting for growth impacted public facilities. 3.50.130 Fee Additional to Other Fees and Charges. This fee is in addition to the requirements imposed by other city laws, policies or regulations relating to the construction or the financing of the construction of public improvements within subdivisions or developments. 3.50.135 Offer. Mandatory Oversizing of Facility; Duty to Tender Reimbursement Whenever a developer of a development project is required as a condition of approval of a development permit to cause a facility or a portion of a facility to be built to accommodate the demands created by the development project, the city may require the developer to install, purchase or construct the Facility according to design specifications approved by the city, that being with such supplemental size or capacity required by the city ("oversized capacity requirement"). If such a oversized capacity requirement is imposed, the city shall offer to reimburse the developer from the fund either in cash or over time, with interest at the fair market value of money, 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. The city may update the fee calculation as city deems appropriate prior to making such offer. This duty to offer reimbursement shall be independent of the developer's obligation to pay the fee. 8 3.50.140 Developer Construction of Facilities. Whenever a developer of a development project would be required by application of city law or policy as a condition of approval of a development permit to construct or finance a facility, or if a developer proposes to design and construct a portion of a facility in conjunction with the prosecution of a development project within the territory, and follows the procedure for doing same hereinbelow set forth, the city council shall, in the following applicable circumstances, tender only the credit or reimbursement hereinbelow identified for that circumstance. If the cost of the facility, incurred by the developer and acceptable to the city, is less than or equal to that portion of the developer's fair share related to the fee component for that facility, the city may (~nly give a credit ("developer credit") against that portion of the developer's fair share related to the fee component for that facility ("fair share of the fee component"); or, If the cost of the facility, incurred by the developer and acceptable to the city, is greater than that portion of the developer's fair share related to the fee component for that facility, but less than or equal to the developer's total fair share, the city may give a credit which credit shall first be applied against that portion of the fair share related to the fee component for that facility, and the excess costs for the facility shall then be applied as credits against such other fee components of the developer's total fair share as the city manager, in his sole and unfettered discretion, shall determine; or, If the cost of the facility, incurred by the developer and acceptable to the city, is greater than the developer's total fair share, the city may give a credit against the developer's total fair share as the city manager, in his sole and unfettered discretion, shall determine; and/or, the city may tender to the developer a reimbursement agreement to reimburse said developer only from the fund as monies are available, over time, with interest at the fair market value of money, at the option of the city. Unless otherwise stated herein, all Developer Credits shall be calculated on a dollar basis and converted into dwelling units or commercial/industrial acrea~qe e_quivalents EDUs at the time building permits are pulled, based on the then current Fee. 3.50.150 Offer. Procedure for Issuance of Credits or Tender of Reimbursement The city's extension of credits or tender of a reimbursement offer to a developer pursuant to Section 3.50.140 shall be conditioned on the developer complying with the terms and conditions of this section: 9 Written authorization shall be requested by the developer from the city and issued by the city council by written resolution before develope~: may incur any costs eligible for reimbursement relating to the facility. The request for authorization shall contain the information listed in this section and such other information as may from time totime be requested by the city. If the council grants authorization, it shall be by written agreement with the developer, and on the following conditions among such other conditions as the council may from time to time impose: Developer shall prepare all plans and specifications and submit same for approval by the city. Developer shall secure and dedicate any right-of-way required for the facilities. Developer shall secure all required permits and environmental clearances necessary for construction of the facilities. Developer shall provide performance bonds in a form and amount, and with a surety satisfactory to the city (where the developer intends to utilize provisions for immediate credit, the performance bond shall be for 100 percent of the value of the project). 5. Developer shall pay all city fees and costs; The city shall be held harmless and indemnified, and upon tender by the city, defended by the developer for any of the costs and liabilities associated with the construction of the facilities. The city will not be responsible for any of the costs of constructing the facilities. The developer shall advance all necessary funds to construct the facilities. The developer shall secure at least three qualified bids for work to be done. The construction contract shall be granted to the lowest qualified bidder. If qualified, the developer may agree to perform the work at a price equal to or less than the Iow bid. Any claims for additional payment for extra work or charges during construction shall be justified and shall be documented to the satisfaction of the director of public works. The developer shall provide a detailed cost estimate which itemizes those costs of the construction attributable to the facilities and excludes any work attributable to a specific subdivision project. The estimate is preliminary and subject to final determination by the director of public works upon completion of the facilities. 10. The city may grant partial credit for costs incurred by the developer on the facility upon determination of satisfactory incremental completion of a facility, as approved and certified by the director of public works, in an 10 11. amount not to exceed 75 percent of the cost of the construction completed to the time the partial credit is granted, thereby retaining 25 percent of such credits until issuance by the city of a notice of completion. When all work has been completed to the satisfaction of the city, the developer shall submit verification of payments made for the construction of the facility to the city. The director of public works shall make the final determination on expenditures which are eligible for credit or reimbursement. 3.50.~40 3.50~155 Develop_er Transfer of Credits A developer who, in accordance with the provisions of Sections 3.50.140 and 3.50.150, receives credits against future payments of the Fee for one or more Fee Components may transfer those credits as provided herein to another Developer. la) The Developer shall provide the City with written notice of such transfer within thirty (30) days. The notice shall provide the following information: · The name of the Developer to whom the credits were transferred: · The dollar value of transferred credits: · The Fee Component(s) against which the credits will be applied: and · The projected rate, by Fiscal Year, that the credits will be applied, until said credits have been fully redeemed. lb) Credits received by a Developer of a iow-and/or moderate-income project, in accordance with Section 3.50.070 3.50.70 can only be transferred to another Iow-and/or moderateqncome Development Project. 3.50.160 Procedure for Fee Modification or Reduction. Any developer who, because of the nature or type of uses proposed for a development project, contends that application of this fee is unconstitutional or unrelated to mitigation of the burdens of the development, may apply to the city council for a modification or reduction of the fee. The application shall be made in writing and filed with the city clerk not later than ten days after notice of the public hearing on the development permit application for the project is given, or if no development permit is required, at the time of the filing of the building permit application. The application shall state in detail the factual basis for the claim of modification or reduction. The city council shall make reasonable efforts to consider the application within sixty days after its filing. The decision of the city council shall be final. If a reduction or modification is granted, .any change in use within the project shall subject the development to payment of the fee. The procedure provided by this section is additional to any other procedure authorized by law for protection or challenging this fee. 11 3.50.170 Fund Loans. A. Loans by the city. The city may loan funds to the fund to pay for facilities should the fund have insufficient funds to cover the cos,t of said facility. Said loans, if granted, shall be approved upon the adoption of the annual city budget and shall carry interest rates as set by the city council for each fiscal year. A schedule for repayment of said loans shall be established at the time they are made and approved by the council, with a maximum term not to exceed the life of the fund. Developer loans. A developer may loan funds to the city as outlined in Sections 3.50.140 and 3.50.150(c)(14). The city may repay said developer loans with interest, under the terms listed in A. above. 3.50.180 Effective Date. This ordinance shalt become effective sixty days after its second reading and adoption. SECTION 2: Findings The City Council finds that developers of land within Chula Vista's General Plan area boundary should be required to mitigate the burden created by development through the payment of an impact fee for construction of public facilities within the boundaries of the development and for public facilities outside the boundaries of the development which are needed to provide service to the development in accordance with City standards; and The City Council finds that the legislative findings and determinations set forth in Ordinance No. 2855 continue to be true and correct; and The City Council finds, after consideration of the evidence presented to it including the "Public Facilities DIF, November 2002 Amendment", that certain amendments are necessary in order to assure that there are sufficient funds available to finance the facilities necessary to maintain public service levels; and The City Council finds, based on the evidence presented at the meeting, the City's General Plan, the City's Parks & Recreation Master Plan, and the various reports and information received by the City Council in the ordinary course of its business, that the imposition of public facilities impact fees on all development for which building permits have not been issued is necessary in order to protect the public health, safety and welfare and in order to assure effective implementation of the City's General Plan; and 12 -/2. The City Council finds that the amount of the amended fees levied by this ordinance does not exceed the estimated cost of providing the public facilities. SECTION 3: Time limit for protest and iudicial 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 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. Presented by Approved as to form by Cheryl Fruchter Director of Budget and Analysis John Kaheny City Attorney J:\Attorney\Ordinance\PFDIF Ordinance 1.doc 13 ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA APPROVING AND ADOPTING THE FOURTH AMENDMENT TO THE SOUTHWEST REDEVELOPMENT PLAN WHEREAS, the City Council of the City of Chula Vista ("City Council") adopted Ordinance No. 2420 on November 27, 1990, approving and establishing the Redevelopment Plan for the Southwest Redevelopment Project, and the City Council has since amended said Redevelopment Plan on July 9, 1991 by Ordinance No. 2467, on November 6, 1994 by Ordinance No. 2612, and on August 22, 2000 by Ordinance No. 2819; and WHEREAS, in accordance with Section 33333.2 of the California Community Redevelopment Law, Health and Safety Code Section 33000 et seq. ("Law"), the use of eminent domain powers can only occur within twelve (12) years from the date of adoption of the Fourth Amendment to the Redevelopment Plan ("Fourth Amendment"); and WHEREAS, the Redevelopment Agency of the City of Chula Vista ("Agency") has requested that the City Council consider the Fourth Amendment in order to extend the authority to use eminent domain for property acquisition purposes in the Southwest Redevelopment Project Area ("Project Area"); and WHEREAS, the Fourth Amendment does not alter the existing prohibition on using eminent domain on residential property in a residential zone; and WHEREAS, the Agency has previously certified an Environmental Impact Report prepared in connection with the Plan; and WHEREAS, the Planning Commission of the City of Chula Vista ("Planning Commission") has reviewed the Fourth Amendment and has determined that it is consistent with the General Plan of the City of Chula Vista; and WHEREAS, pursuant to the California Environmental Quality Act (Public Resoumes Code Section 21000 et seq.), the Guidelines for Implementation of the California Environmental Quality Act (14 Cal. Code Regs. Section 15000 et seq., and the local procedures adopted by the Agency pursuant thereto, the Agency has prepared and completed a Negative Declaration for the Fourth Amendment; and WHEREAS, pursuant to Section 33452 of the Law, public notice has been duly given, and a full and fair public hearing has been held on the proposed Fourth Amendment in accordance with the requirements of the Community Redevelopment Law; and WHEREAS, at the public hearing on the adoption of the Fourth Amendment, written objections to the Fourth Amendment were submitted to the City Council; and WHEREAS, in accordance with the requirements of the Community Redevelopment Law, prior to the consideration of this Ordinance the City Council reviewed and considered all oral and written objections to the Fourth Amendment presented at or prior to the public hearing, and a~er considering such objections approved and adopted written findings in response to each written objection to the Fourth Amendment submitted to the City Council and based on such written findings overruled such written objections to the Fourth Amendment; NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: Section 1. The purposes and intent of the City Council in adopting the Fourth Amendment is to extend the authority of the Redevelopment Agency of the City of Chula Vista to exercise the power of eminent domain with respect to the Southwest Redevelopment Project Area, subject to the limitations set forth in the Fourth Amendment. The Fourth Amendment is hereby found and determined to be necessary to effectuate the purposes of the Redevelopment Plan for the Southwest Redevelopment Project Area, as amended, in order to alleviate conditions of blight that were found and determined when the Southwest Redevelopment Plan was originally adopted and which findings of blight remain applicable and conclusive. Section 2. Based upon the evidence contained in the Report to the City Council for the Fourth Amendment to the Southwest Redevelopment Plan, incorporated herein by reference, and all of the information, testimony, and evidence presented at the pubic hearing on the Fourth Amendment, the City Council does hereby find, determine, and declare as follows: a) At the time the original Redevelopment Plan was adopted, the Project Area was conclusively determined to be a blighted area, the redevelopment of which is necessary to effectuate the public purposes as set forth in the Law, and that finding and determination is conclusive and remains applicable to the Project Area~ and nothing in the Fourth Amendment requires a reanalysis or redetermination of the finding of blight with respect to the Project Area. Nevertheless, the Report to Council offers additional evidence of the necessity of the Fourth Amendment by providing substantial evidence that blight continues in the Project Area and that the Fourth Amendment is necessary to address the continuing element of blight as set forth in the Report to Council. b) The e Redevelopment Plan, as an~ended by the Fourth Amendment, would continue to redevelop the Project Area in conformity with the Law and in the interests of the public peace, health, safety, and welfare, in that the Fourth Amendment simply extends the authority the Redevelopment Agency currently has to exemise the power of eminent domain within certain limits as set forth in the Fourth Amendment. c) The City Council previously found and determined, which finding is conclusive, that the carrying out of the Redevelopment Plan is economically sound and feasible, and such finding remains applicable. Nothing in the Fourth Amendment affects the Plan's financial provisions or its economic feasibility and thus no further determination or finding is necessary in this regard. d) (e) g) i) The Planning Commission and the City Council have determined that the Fourth Amendment is consistent with the City of Chula Vista General Plan, including, but not limited to the Housing Element of the General Plan. The carrying out of the Redevelopment Plan, as amended by the Fourth Amendment, would promote the public peace, health, safety, and welfare of the commtmity and would effectuate the purposes and policy of the Law, in that the Fourth Amendment will allow the Agency to continue to exercise a current authority and will assist the Agency to alleviate conditions of blight in the Project Area. The condemnation of real property, as provided in the Fourth Amendment, is necessary to the execution of the Redevelopment Plan and adequate provisions have been made for payment for property to be acquired as provided by law. The City Council previously found and determined, which finding is conclusive, that the Agency has a feasible method for the relocation of families and persons displaced from the Project Area, to the extent that implementation of the Redevelopment Plan may result in the temporary or permanent displacement of any occupants of Project Area housing facilities, and such finding and determination remains applicable. Nothing in the Fourth Amendments affects this previously-made finding and determination and no further finding is necessary in this regard.; and (h) The City Council previously found and determined, which finding is conclusive,that there are, or shall be provided, in the Project Area or in other areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the' financial means of the families and persons displaced from the Project Area, decent, safe, and sanitary dwellings equal in number to the number of and available to the displaced families and persons and reasonably accessible to their places of employment. The foregoing finding and determination, previously made by the City Council, remains applicable. Nothing in the Fourth Amendment affects this previously- made finding and determination and no further finding is necessary in this regard. The City Council reaffirms its previously-made finding and determination, which finding is conclusive,that (1) families and persons shall riot be displaced prior to the adoption of a relocation plan pursuant to Sections 33411 and 33411.1 of the Law, and that dwelling units housing persons and families of low or moderate income shall not be removed or destroyed prior to the adoption of a replacement housing plan pursuant to Sections 33334.5, 33413, and 33413.5 of the Law, and (2) ther are, or shall be provided in the project area or other areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents and prices within the financial means of the families and persons displaced from the project area, decent, safe, and sanitary dwelling units equal in number to the number of and available to the displaced families and person and reasonably accessible to their places of employment. The Fourth Amendment does not propose the displacement of persons or families and the Fourth Amendment, by its own terms, does not extend eminent domain authority to the Agency over residentially i) k) 1) m) n) zones properties. Therefore, nothing in the Fourth Amendment affects this previously- made finding and determination and no further finding is necessary in this regard. The City Council previously found and determined, which finding is conclusive, that all noncontiguous areas of the Project Area, if any, are either blighted or necessary for effective redevelopment and are not included for the purposes of obtaining the allocation of taxes from the area pursuant to Health and Safety Code Section 33670 without substantial justification for their inclusion. Nothing in the Fourth Amendment affects the foregoing previously-made finding and determination which remains applicable, as the Fourth Amendment does not change the boundaries of the Project Area or affect the financial provisions of the Redevelopment Plan. Therefore, no further finding is necessary in this regard. The City Council previously found and determined, which finding is conclusive, that inclusion of any lands, buildings, or improvements which are detrimental to the public health, safety, or welfare is necessary for the effective redevelopment of the project area, and that any area included is necessary for effective redevelopment and is not included for the purposes of obtaining the allocation of tax increment revenues pursuant to Health and Safety Code Section 33670 without other substantial justification for its inclusion. Nothing in the Fourth Amendment affects the foregoing previously-made finding and determination which remains applicable, as the Fourth Amendment does not change the boundaries of the Project Area or affect the financial provisions of the Redevelopment Plan. Therefore, no further finding is necessary in this regard. The City Council previously found and determined, which finding is conclusive, that elimination of blight and the redevelopment of the Project Area could not be reasonably expected to be accomplished by private enterprise acting alone without the aid and assistance of the Agency. To the extent the Fourth Amendment affects this finding, the City Council reaffirms said finding with respect to the Fourth Amendment and the Redevelopment Plan as amended by the Fourth Amendment. The City Council previously found and determined, which finding is conclusive, that the Project Area is predominantly urbanized and such finding and determination remains applicable. Nothing in the Fourth Amendment affects the boundaries of the Project Area or in any other manner affects this previously-made finding, and therefore no further finding is necessary in this regard. The City Council previously found and determined, which finding is conclusive, that the time limitations set forth in the Plan and the number of dollars to be allocated to the Agency under the provisions of the Plan are reasonably related to the proposed projects to be implemented and to the ability to eliminate blight in the Project Area, and such finding and determination remains applicable. Nothing in the Fourth Amendment affects the time limitations on the effectiveness of the Plan or the time limit on the receipt of tax increment or the proposed projects or in any other manner affects this previously-made finding and determiBation. Section 3. Though the Fourth Amendment does not propose displacement of permanent housing facilities, the City Council is satisfied that permanent housing facilities would be available within three years from the time occupants of the Project Area are displaced and that, pending the development of the facilities, there will be available to the displaced occupants adequate temporary housing facilities at rents comparable to those in the City at the time of their displacement. Section 4. A full and fair public hearing having been held on the Fourth Amendment, and the City Council having considered all evidence and testimony for and against the adoption of the Fourth Amendment and all written and oral objections thereto, and this City Council being fully advised in the premises, all written and oral objections to the Fourth Amendment to the extent not otherwise addressed in the Redevelopment Plan or not otherwise responded to are hereby overruled. Section 5. The Fourth Amendment to the Southwest Redevelopment Plan, a copy of which is attached hereto as Attachment No. 1 and incorporated herein by this reference, is hereby approved and adopted. Section 6. The Southwest Redevelopment Plan as amended by this Fourth Amendment is the official redevelopment plan for the redevelopment project area designated in said plan. Section 7. The City Council hereby declares its intention to tmdertake and complete and complete any proceedings necessary to be carried out by the community under the provision of the Plan as amended by the Fourth Amendment. Section 8. The City Clerk shall publish a copy of this Ordinanc~ as required by Law. _Section 9. The City Clerk shall transmit a copy of this Ordinance to the Redevelopment Agency. Presented by Chris Salomone Director of Community Development Approved as to form by J:\COMMDEV\RESOS\Eminent Domain Ordinance.doc COUNCIL AGENDA STATEMENT Item: Meeting Date: 11/19/02 ITEM TITLE: RESOLUTION ACCEPTING DONATION IN THE AMOUNT OF $50. AND AMENDING THE FISCAL YEAR 2003 BUDGET AND APPROPRIATING SAID DONATED FUNDS SUBMITTED BY: REVIEWED BY: Fire Chief~/~l¢ City Ma nage/~ )P/ (4/5ths Vote: Yes X No __) The Fire Prevention bureau recently received a donation in the amount of $50 from COSTCO. The donation was presented to the Fire Prevention Bureau to support community outreach efforts. RECOMMENDATION: That Council adopt the resolution accepting the donation in the amount of $50, and amend the fiscal year 2003 budget and appropriate said donated funds to the Fire Department. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION The Fire Prevention Bureau received a donation in the amount of $50 from COSTCO for sponsorship of fire prevention programs. The funds will be used to purchase fire prevention materials and supplies for the "Fire House" and fire prevention programs. The Fire House is a large "doll house" used in fire prevention and education presentations. Materials purchased with these funds will be use to enhance community outreach efforts. FISCAL IMPACT The total amount received from this donation is $50. There are no matching funds required or General Fund impact. RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATION IN THE AMOUNT OF $50. AND AMENDING THE FISCAL YEAR 2003 BUDGET AND APPROPRIATING SAID DONATED FUNDS WHEREAS, the Fire Department received a donation in the amount of $50 from COSTCO; and, WHEREAS, said donated funds will be used to purchase fire prevention materials and supplies for the "Fire House" and fire prevention programs; and, WHEREAS, these program materials will enhance community outreach efforts; and, NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chuta Vista does hereby accept and amend the fiscal year 2003 budget and appropriate $50 to the Fire Department. Presented by: -~ou~la/~A. Perry Fire Chief Approved as to form by: City Attorney COUNCIL AGENDA STATEMENT Item: Meeting Date: 11/19/02 ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A DONATION IN THE AMOUNT OF $3,000 AND AMENDING THE FY03 BUDGET AND APPROPRIATING SAID FUNDS SUBMITTED BY: Fire Chief ~A? REVIEWED BY: City Manage ? ~i (4/Sths Vote: Yes X No ) The Fire Department has received an unanticipated donation of $3,000 from an anonymous donor. The Department is recommending the funds be used to create a Fire Department Honor Guard. The Honor Guard will be the first one in the Department's 82-year history. The eleven-member guard will represent the department at community events. BOARDS/COMMISSIONS RECOMMENDATION: N/A RECOMMENDATION: That Council adopt the resolution accepting the donation in the amount of $3,000, and amend the fiscal year 2003 budget and appropriate said donated funds to the Fire Department. DISCUSSION The Fire Department is requesting the creation of a Fire Department Honor Guard. The Honor Guard will be the first one in the Department's 82-year history. Eleven members of the Fire Department have volunteered to serve on the Honor Guard. The team will perform in local parades, civic and school functions. The Chula Vista Fire Department Honor Guard's paramount mission is to pay tribute to those firefighters who have lost their lives in the line-of-duty, and to those who have passed on following distinguished careers in the emergency and public safety service. In addition, the honor guard will be used to market the department in light of upcoming recruitment efforts and to enhance community outreach efforts. The team began training on Saturday October 12th in an effort to prepare for the Yule parade scheduled for December Ist. All of the Honor Guard's movements and functions will be based on military drills. Program Costs Staff is recommending the appropriation of an unanticipated donation of $3,000 to purchase wearing apparel items required for the Honor Guard uniform and program related equipment. Sufficient funds are available in the Fire Department budget to absorb ongoing cost of this program. FISCAL IMPACT The total amount received from this donation is $3,000. There are no matching funds required or General Fund impact. RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A DONATION IN THE AMOUNT OF $3,000 AND AMENDING THE FY03 BUDGET AND APPROPRIATING SAID FUNDS WHEREAS, the Fire Department has received an unanticipated donation of $3,000 from an anonymous donor; and WHEREAS, the Department is recommending the funds be used to create a Fire Department Honor Guard; and WHEREAS, the Honor Guard will be the first one in the Department's 82-year history; and WHEREAS, the eleven-member guard will represent the department at community events such as local parades, civic and school functions; and WHEREAS, the Chula Vista Fire Department Honor Guard's paramount mission is to pay tribute to those firefighters who have lost their lives in the line-of-duty, and to those who have passed on following distinguished careers in the emergency and public safety service; and WHEREAS, staff is recommending the $3,000 be used to purchase wearing apparel items required for the Honor Guard uniform, and WHEREAS, sufficient funds are available in the Fire Department budget to absorb ongoing costs of this program. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept the donation in the amount of $3,000, and amend the fiscal year 2003 budget by appropriating said donated funds to the Fire Department. Presented by: IY~ugflas A. Pe~yc~.~ Fire Chief J:/attorney/reso/honor guard Approved as to form by: John M. K/th"~n} ~-' 0v- City Attorney COUNCIL AGENDA STATEMENT Item: Meeting Date: 11/19/02 ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICPATED GRANT FUNDS IN THE AMOUNT OF $35,515. AND AMEND THE FY 03 BUDGET AND APPROPRIATING SAID FUNDS SUBMITTED BY: Fire Chie~c'/' REVIEWED BY: City Manager ~ ~) (4/Sths Vote: Yes X No __) As part of the FY01 Office of Justice Programs (OJP) State Domestic Preparedness Program local fire departments are scheduled to receive grant funding via the County of San Diego, Office of Emergency Services (OES). Based on a population allocation formula, the Chula Vista Fire Department is eligible to receive $35,515. These funds may be used to purchase specified domestic preparedness equipment. After reviewing the list of equipment, the Department is recommending these funds be used to purchase breathing apparatus. RECOMMENDATION: That Council adopt the resolution accepting the unanticipated grant funds in the amount of $35,515, and amend the FY 03 budget and appropriate said funds to the Fire Department. BOARDS/COMMISSIONS RECOMMENDATION: N/A The U.S. Department of Justice (PO J), through the Office of the Assistant Attorney General, Office of Justice Programs (OJP), and Office for Domestic Preparedness (ODP), is providing funding to first responders to purchase specialized equipment to better respond to acts of terrorism. This grant program represents the second and third years of a three-year initiative to address critical national needs in the area of response equipment for domestic preparedness. The program is 100% federally funded, requiring no matching funds. The Federal Fiscal Year FY00 and FY01 State Domestic Preparedness Equipment Program funds have been combined and awarded by ODP to OES as the FY01 State Domestic Preparedness Equipment Program. The OJP grant program is designed to build first responder capabilities and to assist state and local governments become better prepared for threats and incidents of domestic terrorism. The County of San Diego, Office of Emergency Services has received $711,760 for distribution to local agencies within its emergency services operational area. Based on a population allocation formula, the Chula Vista Fire Department is eligible to receive $35,515 for FY 01. Funds under this grant program are to be used to acquire first responder equipment in the following categories: · Personal protective equipment · Chemical, biological, radiological detection · Decontamination · Communications The above categories are in accordance with the FY 01 Authorized Equipment Purchase List. After reviewing the specialized authorized list of equipment staff is recommending the funds be used to purchase breathing apparatus for the Fire Department. FISCALIMPACT The total amount allocated to the Chula Vista Fire Department is $35,515. There are no matching funds required or General Fund impact. RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED GRANT FUNDS IN THE AMOUNT OF $35,515. AND AMEND THE FY 03 BUDGET AND APPROPRIATING SAID FUNDS WHEREAS, the U.S. Department of Justice (DO J), through the Office of the Assistant Attorney General, Office of Justice Programs (OJP), and Office for Domestic Preparedness (eDP), is providing funding to first responders to purchase specialized equipment to better respond to acts of terrorism; and WHEREAS, this grant program represents the second and third years of a three- year initiative to address critical national needs in the area of response equipment for domestic preparedness; and and WHEREAS, the program is 100% federally funded, requiring no matching funds; WHEREAS, the OJP grant program is designed to build first responder capabilities and to assist state and local governments become better prepared for threats and incidents of domestic terrorism; and WHEREAS, the County of San Diego, Office of Emergency Services has received $711,760 for distribution to local agencies within its emergency services operational area; and WHEREAS, based on a population allocation formula, the Chula Vista Fire Department is eligible to receive $35,515 for FY 01; and WHEREAS, funds under this grant program are to be used to acquire first responder equipment in the following categories 1) Personal protective equipment (PPE), 2) Chemical, biological, radiological detection, 3) Decontamination and 4) Communications; and WHEREAS, after reviewing the specialized authorized list of equipment staff is recommending the funds be used to purchase breathing apparatus for the Fire Department. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept the unanticipated grant funds in the amount of $35,515, and amend the FY 03 budget and appropriate said funds to the Fire Department. Presented by: Fire Chief Approved as to form by: John M. Kaheny City Attorney J:lattorneylreso/ojp grant COUNCIL AGENDA STATEMENT Item ('C Meeting Date 11/19/02 ITEM TITLE: Ordinance Amendirig Chapter 18.54 of the Chula Vista Municipal Code Relating to Floodpla n Regu ations / SUBMITTED BY: Director of'Public Worksp_]~nt~/ REVIEWED BY: City' Maoagcr ~d~),~ (4/5ths Vote: Yes No X ) Thc City's Floodplain Ordinance, Chapter 18.54 of the Municipal Code, was originally adopted by Council on November 14, 1978. Since its adoption, revisions to the ordinance are necessary in order to meet the minimmn requirements of the Federal Emergency Management Agency (FEMA). RECOMMENDATION: That Council place the ordinance amending Chapter 18.54 of thc Cbula Vista Municipal Code relating to Floodplain Regulations on first reading. BOARDS/COMMISSIONS RECOMMENDATION: On August 13, 2001, our proposed changes to thc Floodplain Ordinance were presented by City staff' to the City of Chnla Vista Board of Appeals and were approved. DISCUSSION: The City's Floodplain Ordinance, Chapter 18.54 of the Municipal Code, was originally adopted by Conncil on November 14, I978. O~'dinance 1842 amended the Chula Vista Flood Management Program el: 1970, to bring it inlo compliance with thc current National Flood Insurance Program Rules and Regulations at tbat time. On July 5, 1983, Ordinance 2039 was adopted by Council, wbicln amended sections of tiao ordinance, which included regulations relating to requirements controlling development o£property within identified floodplains in accordance with Federal rtdcs and regulations. Ordinaoce 2248 was adopted by Council on January 19, 1988, which revised the City's floodplain regulations in accordance with instructioos by the Federal Emergency Management Agency (FEMA), based on review of our ordinance and floodplain-related policies by the Department el~ Water Resources (DWR). The purpose of DWR's review was to. review local regulations and see if current Federal requirements were being met by the local agencies. DWR recently conducted a review of the City's local floodplain regulations, similar to thc review conducted in 1988. On April 19, 2001, a representative of the Department of Water Resources (DWR) conducted it Community Assistance Visit (CAV) to the City of Chula Vista. Thc DWR was conducting this service as a consultant of thc Federal Emergency Management Agency (FEMA). The purpose of the CAV wits to exchange iol'ormation regarding various requirements related to participating in the National Flood Insurance Program (NFIP). City staff was inforn~ed thal continued enforcement thc NFIP regulations will ensure the City's good standing in the NFIP and guarantee availahility of flood insurance co~ crage. As a ~ esuh of this visit, we received a letter stating that we are required to Page 2, Item ~ Meeting Date 11/19/02 adopt a floodplain management ordinance to meet the minimum NFIP requirements as specified in Title 44, Code of Federal Regulations, Sections 59, 60.3-60.6 (Exhibit A). In order to amend our existing Floodplain Management Ordinance and assure that we meet FEMA requirements, the review of proposed changes was conducted by the various sections of our City, which include the City Attorney, Building & Housing, and the Engineering sections. On August 13, 2001~ our proposed changes to the Floodplain Ordinance were presented by City staff and were approved by the City of Chula Vista Board of Appeals. In addition, we received a letter from FEMA dated March 26, 2002 (Exhibit B), regarding their review of the draft ordinance, which indicated that FEMA had completed their review of the draft and found that the City's Floodplain Management Ordinance (Exhibit C) meets the minimun~ NFIP requirements. The areas ol' Chula Vista primarily affected by the proposed amended ordinance are prope~xies located to the west of 1-805 and within floodplain areas, such as those properties adjacent to the Telegraph Canyon Creek. Ultimately, by amending the ordinance and meeting NFIP requirements, the Flood Insurance will contintte to be made available to affected property owners. Since the NFIP requirements are met, it will facilitate the revision of the flood zone maps, which will reduce the time period between a drainage improvement project completion date and the "official" determination from FEMA that a property no longer is in the flood zone. Environmental Review The Environmental Review Coordinator bas reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. Future development proposals subject to the proposed regulations will be subject to environmental review pursuant to the provisions of CEQA. FISCAL IMPACT: There is no fiscal impact as a result of the amended ordinance. Exhibil A -LeUer fronlthe Department of Water Resources dated May 25,2001 Exhibd B Lcttcr fi'om FEMA dated March 26, 2002 Exhibit C -Strikeout/Underline version of the Proposed Amended Floodplain Ordinancc J:',Engineer AGENDA Floodplain Ordiannce Intention.join.doc STATE OF CALIFORNIA - THE RESOURCES AGENCY DEPARTMENT OF WATER RESOURCES SOUTHERN DISTRICT 770 FAIRMONT AVENUE, SUITE 3LENDALE. CA 91203-1035 Honorable Shirley Horton Mayor of the City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Dear Mayor Horton: 2001 GRAY DAVIS, Governor Thank you for the cooperation and courtesy extended to Mr. Garret Tam Sing of my staff during the Community Assistance Visit in your City on Thursday, Apd119, 2001. We hope the meeting was as useful and informative for your staff as it was for our agency. Important aspects of the CAV are exchange of information regarding various requirements related to participating in the National Flood Insurance Program and provision of any assistance that may be needed. A copy of the CAV report is enclosed. On behalf of the Federal Emergency Management Agency, I commend your staff for their conscientious efforts in implementing the NFIP. Continued enfomement of the NFIP regulations will ensure the City's good standing in the NFIP and guarantee availability of flood insurance coverage, Our review, however, revealed one specific action that needs to be taken to bring the City'S floodplain management program into compliance with the NFIP requirements. We recommend that the City: 1. Adopt a floodplain management ordinance to me'et the minimum NFIP requirements as specified in Title 44, Code of Federal Regulations, Sections 59, 60.3-60.6. Provide a draft to the Department of Water Resources, Southern District, by June 15, 2001, for review and comment. The City should note that adopting an amended floodplain management ordinance is a prerequisite for continued participation in the NFIP. If you have questions concerning this letter, the enclosed report, or any aspect of the NFIP, please contact me at (818) 543-4610 or have your staff contact Mr. Tam Sing at (818) 543-4648. Enclosure Sincerely, Southern District Federal Emergency Management Agency Region IX P.O. Box 29998 Presidio of San Francisco San Francisco, California 94129 March 26, 2002 Mr. Clifford Swanson _ Puhli~:_ .Wg_rks. Dept City of Chula Vista 276 Fourth Ave Chula V'mta, CA 92010 Dear Mr. Swanson: This letter is in response to correspondence sent by your commmlity to this office dated Fabmary 12, 2002. In your later you enclosed a copy of a proposed draft floodplain management ordinance, and you requested that FEMA review the draft end reply with any commit/. After review of your proposed changes, we find that your ordinance would be compliant with the minimum standards of the NFIP. Although you need not adopt all changes recommended by the Department of Water Resources, ~nd it is understood that other city ordinances do apply, the State Model was designed to take into account the need for a stand alone document that would ensure community compliance. We are confident in the ability of your city atWmey to determine that all requirements of Chapter 44 of the United Stat~s Code of Federal Regnlation~ Parts $9-?0 have been met by your community's ordinances as a whole. Please do not I~itate to contact us for any questions or concerns you m/ght have. In the past, co~fl/cts w/th other dty ~ State reqnirements have resulted in cemmunities aliny~ir~ violations of the National Niood Insurance Progr~,n. We would look forward to assistinE your community in avoidh~ such occurrences in Chula Vista. If you have further questions on this issue please call either me at 415-923-7116. Sin ,c,e~rely .t Natural H~Tards Specialist FEMA, Re~ion IX Chapter 18.54 FLOODPLAIN REGULATIONS Sections: 18.54.010 Purpose and intent. ! 8.?..~n!5 18.54.020Lands to which this chapter applies. !°-..5~..~2~a 18.54.030Bnsis for establishing the areas of special flood hazards. 18.54.040 Methods of Reducing Flood Losses. 18.54.050 Compliance. 18.54.060 Abrogation and Greater Restrictiona- 18.54.070 Interpretation. 18.54.080 Warning and Disclaimer of Liability. 18.54.090 Severability. t:8~MAI30 18.54.100Definitions. t:8~34A140 18.54.110Floodplain development--Permits required. !~.5~..n~5~ 18.54.120Floodplain development--Review by City Engineer. !~°.?..a~6~a 18.54.130Floodplain development--Review by Building Official. 18.5~..~%a 18.54.140Floodplain developinent-City engineer action. tt¢34d~80 18.54.150New water and sewage systems. 18.?..999 18.54.160 Alteration or relocation of watercourses. 18.54.170 Variance Procedure. t&S4A4}0 18.54.180Ordinance supersedes any conflicting statutes. 18.54.0t0 Purpose and Intent. In order to allow the city to participate in the Federal Flood Insurance Program (National Flood Disaster Protection Act of 1973), it is required that the city adopt regulations controlling the development of property within identified floodplains pursuant to the direction of said Act. The city council, therefore, assigns to the Building Official and to the City Engineer certain added responsibilities, and they are authorized and directed to enforce all the provisions of this chapter and all other ordinances of the city now in force or hereafter adopted, relating to zoning, subdivision, or building codes. (Ord 2100 § 1 (part), 1985; Ord 1842 § 1 (part), 1978). It is the purpose of this ordinance to promote the public health, safety, and general welfare, and to minimize pnblic and private losses due to flood conditions in specific areas by provisions designed to: a) protect human life and health; b) minimize expenditure of public money for costly flood control projects; c) minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; d) minimize prolonged business interruptions; e) minimize damage to public facilities and utilities such as water and gas mains; electsic, telephone and sewer lines; and streets and bridges located in areas of special flood hazard f) help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future blighted areas caused by flood damage; g) ensure that potential buyers are notified that property is in an area of special flood hazard; and h) ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. 18.54.020 Lands to which this chapter applies. The provisions of this Chapter 18.54 shall apply to all areas of special flood hazards, areas of flood-related erosion hazards and areas of mudslide (i.e., mudflow) hazards within the jurisdiction of the City of Chula Vista. (Ord 2386 §1, 1990) !~.?..92~ 18.54.030 Basis for establishing the areas of special flood hazards. The areas of special flood hazards identified by the Federal Insurance Administration (FIA) of the Federal Emergency Management Agency (FEMA) in the Flood Insurance Study (FIS) dated June 19, 1997 and accompanying Flood Insurance Rate Maps (FIRMS) and Flood Boundary and Floodway Maps (FBFMs), dated June 19, 1997, and all subsequent amendments and/or revisions, are hereby adopted by reference and declared to be part of this title. This Flood Insurance Study and attendant mapping is the minimum area of applicability of this tide and may be supplemented by studies of other areas which allow implementation of this title and which are recommended to the City Council by the City Engineer. The study and Flood Insurance Rate Maps (Community Panel Numbers 065021 0001-0007) are on file at the City Public Services Building at 276 Fourth Avenue. (Ord 2386 §2, 1990; ©rd 2170 §1, 1986; Ord 2100 §1 (part), 1985; Ord 2039 §I (part), 1983; Ord 1842 §1 (part), 1978). 18.54.040 Methods of Reducing Flood Losses In order to accomplish its purposes, this ordinance includes methods and provisions to A. restrict or prohibit uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or flood heights or velocities~ B. require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction; C. control the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel flood waters; D. control filling, grading, dredging, and other development which may increase flood damage; an~d E. prevent or regulate the construction of flood barriers which will umraturally divert flood waters or which may increase flood hazards in other areas. 18.54.050 Compliance. No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the term of this ordinance and other applicable regulations. Violation of the requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Nothing herein shall prevent the City Council from taking such lawful action as is necessary to prevent or remedy any violation. 18.54.060 Abrogation and Greater Restrictions. This ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail 18.54.070 Interpretation. In the interpretation and application of this ordinance, all provisions shall be A. considered as minimum requirements; B. liberally construed in favor of the governine body; and C. deemed neither to limit nor repeal any other powers granted under state statutes 18.54.080 Warning and Disclaimer of Liability. The degree of flood protection required by this ordinance is considered reasonable for regulatorf purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This ordinance does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the City Council, any officer or employee thereof, the State of California, or the Federal Insurance Administration, Federal Emergency Management Agency, for any flood damages that result from reliance on this ordinance or any admlnintrative decision lawfully made hereunder. 18.54.090 Severability. This ordinance and the various parts thereof are hereby declared to be severable. Should any section of this ordinance be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid 18.54.100 Definitions. Unless specifically defined in this section, words or phrases used in this chapter shall be interpreted so as to give them the same meaning as they have in common usage so as to give this chapter its most reasonable application. "Area of flood hazard" means areas within the community subject to a one percent or greater chance of flooding B. "Basement" means any area of the building having its floor subgrade (below grotmd level) on all sides. C. "Base Flood" means the flood having a 1 percent chance of being equalled or exceeded in any given year. D. "Development" means any ma~unade change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or dfilling operations. E. "Flood" means a temporary rise in a stream's flow or stage that results in water overflowing its banks and inundating areas adjacent to the channel, or an unusual and rapid accumulation of nmoff or surface waters from any source. "Floodproofing" means any combination of structural and nonstructural additions, changes, or adjustments to s~ructures which reduce or eliminate flood damage to real estate or improved real properly, water and sanitary facilities, structures and their contents. "Fraud and victimization" as related to 18.54.170, Variances, of this ordinance, means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the City of Chula Vista will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the communit~ for fifty to one-hundred years. Buildings that are permitted to be constructed below the base flood elevation are subject during all those years to increased risk of damage from floods, while furore owners of the property and the community as a whole are subject to all the costs, inconvenience, danger, and suffering that those increased flood damages bring. In addition, future ovmers may purchase the property, unaware that it is subject to potential flood damage, and can be insured only at very high flood insurance rates. "Hardship" as related to 18.54.170, Variances, of this ordinance means the exceptional hardship that would result from a failure to grant the requested variance. The City Council requires that the variance be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot, as a mle, qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owner to build elsewhere or put the parcel to a different use than originally intended. "Highest Adjacent Grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. "Historicstructure" means any structure that ~s' 1. listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; 2. certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district: 3. individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of Interior; or 4. individually listed on a local inventory of historic places in commnnities with historic preservation programs that have been certified either by an approved state program as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs. "Lowest Floor" means the lowest of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parkmg of vehicles, building access or storage, in an area other than a basement area, is not considered a building's lowest floor, provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this chapter. "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities. For flood management purposes the term "manufactured home" also includes park trailers, travel Irailers, and other similar vehicles placed on a site for greater than 180 consecutive days. For insurance purposes the term "manufactured home" does not include park trailers, travel trailer, and other similar vehicles. Manufactured home park or subd~ws~on means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. "One-hundred-year flood" means the condition of flooding having a one percent chance of annual occurrence. "Public safety and nuisance" as related to 18.54.170, Variances, of this ordinance means that the granting of a variance must not result in anything which is injurious to safety or health of an entire commnnity or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of an,/navigable lake, or river, bay, stream, canal, or basin "Regulatory flood elevation" means the water surface elevation of the one-hundred-year flood. "Regulatory floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. The designated regulatory flood ways are the channels of the Sweetwater River and Telegraph Canyon Creek shown on the current flood boundary and floodway map, and the Otay River and Poggi Canyon Creek as shown on the county of San Diego floodway map. "Start of Construction" (for other than new construction or substantial improvements under the Coastal Barrier Resources Act (Public Law 97-348), includes substantial improvement, and means the date the building perrmt was issued, provided the actual start of construction, repair, reconstruction, placement or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanant constxuction of a structure on a site, such as the pouring of slab or footargs, the installation of piles, the construction of colunurs, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets, and/or walkways; nor does it include excavation for a basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. "Smicture" means a walled and roofed structure, including a gas or liquid storage tank that is principally above the ground, including but without limitation to buildings, factories, sheds, cabins, mobile homes and other similar uses. "Substantial improvement" means any repair, reconstruction or improvement of a structure, the cost of which equals or exceeds fifty percent of the market value of the structure either: 1. Before the improvement is started; or 2. If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this def'mifion substantial improvement is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration effects the external dimensions of the sU~cture. The term does not, however, include any alteration to comply with existing state or local health, sanitary, building or safety codes or regulations, or structures listed in national or state registers of historic places. (Ord 2248 §1, 1988; Ord 2197 §1 (part), 1987; Ord 2100 §1 (part), 1985; Ord 2039 §1 (part), 1983; Ord 1842 §1 (part), 1978). t41~84~040 18.54.110 Floodplain development--Permits required. No person, firm or corporation shall erect, construct, enlarge or improve any building or structure, or begin development within areas of flood hazard in the city or cause the same, including the placement of manufactured homes, to be done without first obtaining a building permit for each such action. To obtain such a building permit, the applicant shall Un'st file an application therefor in writing with the Building Official on a form fianished for that purpose. Every such application shall: 1. Identify and describe the work to be covered by the permit for which application is made; 2. Describe the land on which the proposed work is to be done by lot, block, tract and house and street address, or similar description that will readily identify and defmitely locate the proposed building of work; 3. Indicate the use or occupancy for which the proposed work is intended; Be accompanied by necessary plans and specifications for the proposed construction showing the nature, location, dimensions, and elevation of the area in question; existing or proposed stntctures, fill, storage of materials, drainage facilities; and the location of the foregoing; 5. Be signed by the pe~'cn'2xee applicant or the applicant's h/s authorized agent who may be required to submit evidence to indicate such authority. Be accompanied by elevations (in relation to sea level) of the lowest floor (including basement) or in the case of floodpmofed (as defined in this chapter) nonresidential structures, the elevation to which it has been floodproofed. Documentation or certification of such elevations will be maintained by the ~/rectc. r cf bu/!ding and hcuz!ng Building Official. Be accompanied by a certification, submitted by a licensed civil engineer, structural engineer, or architect, that the plans and specifications for the proposed building or structure comply with the floodproofing requirements of the National Flood Insurance Program as revised. Said licensed civil engineer, structural engineer or architect, subsequent to construction of the proposed building or structure but prior to final approval for use or occupancy thereof, shall certify that such building or structure has been so floodproofed and shall specify the elevation to which such floodproofing is effective. 7~is provision is not applicable to manufactured homes. Electrical, heating, ventilation, plumbing, and air-conditioning equipment and other service facilities shall be designed and/or located as to prevent water fi.om entering or accumulating within the components during conditions of flooding. 9. Give such other information as reasonably may be required by the~wv.'~;~"*^- _cv~ u..:~.~;.g._..~_. ~..~'~ ~-~--~,~-"~:-~ Building Official and the City Engineer. In the coastal zone, development in floodplains shall also be required to obtain a coastal development permit consistent with the applicable provisions of the certified Local Coastal Program. (Ord 2248 82, 1988; Ord 2197 81 (part), 1987; Ord 2100 81 (part), 1985; Ord 1842 8(part), 1978). 18.54.050 18,84,tgo Floodplain development--Review by City Engineer. The City Engineer shall review all development permit applications to determine if the site of the proposed development is reasonably safe from flooding, that all applicable requirements of the National Flood Insurance Program have been met, and that all necessary permits have been received as required by federal or state law. Copies of such penmts shall be required part of permit applications. (Ord 2386 83, i990; Ord 2197 81 (part), 1987; Ord 2100 §1 (part), 1985; Ord 2039 81 (part), 1983; Ord 1842 81 (part), 1978). STANDARDS FOR SUBDIVISIONS. A. All preliminary subdivision proposals shall identify the special flood hazard area and the elevation of the base flood. 6 B. All subdivision plans will provide the elevation of proposed structure(s) and pad(s). If the site is filled above the base flood elevation, the lowest floor and pad elevations shall be certified by a registered professional engineer or surveyor and provided to the City Engineer. C. All subdivision proposals shall be consistent with the need to minimize flood damage D. Ail subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to mininfize flood damage E. All subdivisions shall provide adequate drainage to reduce exposure to flood hazards. 18.54.130 Floodplain development--Review by d:'reet=r e f hui!dlng a::d heusing Building Official The director cf 5si!ding and kcusing Building Official, in reviewing all applications for new construction, substantial improvements, prefabricated buildings, placement of manufactured homes and other developments (as defined in this chapter) shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a federal, state or other source, as criteria for requiring that new construction, substantial improvements, or other development in Zone A on the official map meet the following standards: and which are: b. In a new manufact:ared home park er aubdi;'izion, o, least equivalent z_~cng~h that are no !cas than 3fi inches in height akeve grade -.,nd be securely &-// 7 1., .................................................................... r ................... ato with the prc;'isisxa cfthia Chapter, 1) STANDARDS OF CONSTRUCTION. In all areas of special flood hazards the following standards are required: A. Anchoring 1. All new construction and substantial improvements shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads~ including the effects of buoyancy. 2. All manufactured homes shall meet the anchorin~ standards to the satisfaction of th~ Building Official. B. Construction materials and methods. All new construction and substantial improvement shall be constructed 1. with flood resistant materials as specified in FEMA Technical Bulletin TB 2-93, and utilit~ equipment resistant to flood damage; 2. using methods and practices that minimize flood damage; 3. with electrical, heating, ventilation, plumbing and air conditioning equipment and oth~ service facilities that are designed and/or located so as to prevent water from entering ~,, accumulating within the components during conditions of flooding; and if 4. within Zones AH or AO, so that there are adequate drainage paths around structures o. slopes to ~uide flood waters around and away from proposed structures Residential structures and substantial improvements of residential structures shall meet the following standards: The lowest floor elevation (to include basement) of new residential structures shall be elevated to a minimmn of one foot above the regulatory flood elevation; except that in zone AO the lowest floor (including basement) shall be as high as the depth number in feet above the highest adiacent ~rade or two feet if no depth number is specified STANDARDS FOR UTILITIES. A. Ali new and replacement water supply and sanitary sewage systems shall be designed to minimize or eliminate: 1. infiltration of flood waters into the systems, and 2. discharge from the systems into flood waters. B. On-site waste disposal systems shall be located to avoid impairment to them, or contamination from them during flooding. All design of the project shall be certified by a registered professional in the respective field of expertise. 3) STANDARDS FOR MANUFACTURED HOMES A. All manufactured homes that are placed on or substanhally improved within a special flood hazard area as identified on the city's flood insurance rate map and which are: 1. Outside of a manufactured home park or subdivision; or 2. In a new manufactured home park or subdivision, or 3. In an expansion to an existing manufactured home park or subdivision, or 4. In an ex/sting manufactured home park or subdivision within which a manufactured home has incurred "substantial damage" as the result of a flood 5. shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is at least one foot above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement. All manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within a special flood hazard area and not subject to the prowsmns of Section 18.54.130.3.B.1 will be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement, and shall be elevated so that either: 1. The lowest floor of the manufactured home is at least one foot above the base flood elevation, or The manufactured home chassis is supported by reinforced piers or other fotmdation elements of at least equivalent strength that are no less than 36 inches in height above grade. All manufactured homes and associated improvements shall be certified by a registered professional engineer and surveyor. 4) STANDARDS FOR NON-RESIDENTIAL STRUCTURES The lowest floor elevation (to include basement) of nonresidential structures be elevated or floodproofed to a minimum of one foot above the regulatory flood elevation; except that in zone AO the lowest floor (including basement) shall be as high as the depth number in feet above tho highest adjacent grade or two feet if no depth number is specified; or together with attendant utility and sanitary facilities be completely floodpmofed to or above that level so that any space below that level is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; B. Require the use of construction materials and utility equipment that are resistant to floodwater damage; Require the use of construction methods and practices that will minimize flood damage; 10 D. Be designed or anchored to prevent the flotation, collapse or lateral movement of the structure or portions of the structure due to flooding. Said design shall be certified by a registered professional engineer and surveyor; For all new construction and substantial UnProvements, fidly enclosed areas below the lowest floor that are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minlrnnm criteria: A minimum of two openings have a total net area of not less than one square inch for every square foot of enclosed area subiect to flooding shall be provided. The bottom of all openings shall be no higher than one foot above grade. Openings ma,/be equipped with screens, louvers, or other coverings or devices provided that they p,ri.ii the automatic entry and exit of floodwaters. (Ord 2386 §4, 1990; Ord 2248 §3, 1988; Ord 2197 § 1 (part), 1987; Ord 2100 § 1 (part), 1985; Ord 2039 §1 (part), 1983; Ord 1842 §1 (part), 1978). !8.?..~7~ 18.54.140 Floodplain development--City Engineer action. The City Engineer shall review ail subdivision and land development perm/t applications and shall make findings of fact and assure that: A. All such proposed developments are consistent with the need to minimize flood damage; Proposals for subdivisions and other new development incorporating more than five acres of fifty lots, whichever is lesser, show on tentative parcels maps, tentative subdivision maps or site plans, regulatory flood elevation data for any included area designated zone A, zone Al-30 or zone AO; C. Adequate drainage is provided so as to reduce exposure to flood hazards; D. All public utilities and facilities are located so as to minimize or eliminate flood damage; E. 'Ihe natural landscape of all designated floodways and major watercourses is substantially preserved; An evacuation plan indicating alternate vehicular access and escape routes is riled with appropriate Disaster Preparedness Authorities for manufactured home parks and manufactured home subdivisions located within zone A, zones Al~30 and zone A0; Within zones Ai-30, new manufactured home parks and manufactured home subdivisions, expansions to existing manufactured home parks and manufactured home subdivisions, and existing manufactured home parks and manufactured home subdivisions where the repair, reconstruction or improvement of the streets, utilities and pads equals or exceeds fifty percent of the value of the streets, utilities and pads before the repair, reconslruction or irnprovement has commenced have: Stands or lots elevated on compacted I511 or on pilings so that the lowest floor of the manufactured home will be at least one foot above the base flood level, 2. Adequate sm'face drainage and access for a hauler, and In the instance of elevation on pilings, lots are large enough to permit steps, piling foundations are placed in stable soil no more than ten feet apart, and reinforcement is provided for pilings more than six feet above the ground level; 11 Any encroachments, including fill, new construction, substantial improvements, and other developments within the designated regulatory floodways that would result in any increase in flood levels during the occurrence of a one-hundred-year flood discharge are prohibited. In the coastal zone, the City Engineer shall review all subdivision and land development permit applications and shall recommend to the City Council f'mdings as to whether any proposed subdivision complies with the provisions of the certified Local Coastal Program and the standards of Subsections A-H, above. (Ord 2100 §1 (part), 1985; Ord 2039 § 1 (part), 1983; Ord 1842 §1 (part), 1978). 1.~.~Q =a..vvvnon 18.54.150 New water and sewage systems. New water and sewer systems shall be constructed to eliminate or minimize infiltration by, or discharge into, floodwaters. Moreover, on-site waste disposal systems will be designed to avoid impairment or contamination during flooding. (Ord 2100 §1 (part), 1985; Ord 1842 §1 (part), 1978). 18.54.160 Alteration or relocation of watercourses. The City Engineer shall review all plans for alteration or relocation of any watercourse within the city to assure that the flood-canTing capacity of such watercourse is maintained. The city will notify, in rivemm situations, affected communities and the state coordinating office prior to any alteration or relocation of a watercourse, and submit copies of such notifications to the admimstrator of the Federal Insurance Adminislration. Moreover, city officers will work with appropriate State and Federal agencies in complying with the National Flood Insurance Program in accordance with the National Flood Disaster Protection Act of 1973. In the coastal, any subdivision that involves the alteration or relocation of a stream shall also conform to the applicable provisions of the certified local coastal program. (Ord 2100 §1 (part), 1985; Ord 1842 §1 (part), 1978). 12 applicant :uffici:~ relie£ 18.54.170 Variance Procedure 1) NATURE OF VARIANCES. The variance criteria set forth in this section of the ordinance are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A variance may be granted for a parcel of property with physical characteristics so unusual that complying with the requirements of this ordinance would create an exceptional hardship to the applicant or the surrounding property owners. The characteristics must be unique to the property and not be shared by adiacent parcels. The unique characteristic must pertain to the land itself, not to the stmcture, its inhabitants, or the property o~vners. It is the duty of the City of Chula Vista to help protect its citizens from flooding. This need is so compelling and the implications of the cost of insuring a structure built below flood level are so serious that variances from the flood elevation or from other requirements in the flood ordinance are quite rare. The long term goal of preventing and reducing flood loss and damage can only be met if variances are s~rictly limited. Therefore, the variance guidelines provided in this ordinance are more detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate. 2) APPEAL BOARD. A. In passing upon requests for variances, the Board of Appeals and Advisors shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and the 1. danger that materials may be swept onto other lands to the injury of others; 2. danger of life and property due to flooding or erosion damage; 3. susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property; 4. importance of the services provided by the proposed facility to the community; 13 5. necessity to the facility of a waterfront location, where applicable; 6. availability of alternative locations for the proposed use which are not subiect to floodin~ or erosion damage; 7. compatibility of the proposed use with existing and anticipated development; 8. relationship of the proposed use to the comprehensive plan and floodplain management program for that area; 9. safety of access to the property in time of flood for ordinary and emergency vehicles; 10. expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and 11. costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water system, and streets and bridges. B. Any applicant to whom a variance is granted shall be given written notice over the signature of a Building Official that 1. the issuance ora variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for every $100 of insurance coverage, and 2. such construction below the base flood level increases risks to life and property. It is 3) recommended that a copy of the notice shall be recorded by the Building Official in the Office of the County Recorder and shall be recorded in a manner so that it appears in the chain of title of the affected parcel of land C. The Building Official will maintain a record of all variance actions, including iustification for their issuance, and report such variances issued in its bienmal report submitted to the Federal Insurance Administration, Federal Emergency Management Agency. CONDITIONS FOR VARIANCES. A. Generally, variances may be issued for new construction, substantial improvement, and other proposed new development to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level. As the lot size increases beyond one-half acre, the technical justification required for issuin~ the variance increases. B. Variances may be issued for the repair or rehabilitation of "historic structures" (as defined in 18.54.030 of this ordinance) upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. C. Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result D. Variances shall only be issued upon a determination that the variance is the "minimum necessary" considering the flood hazard, to afford relief. "Minimnm necessary" means to afford relief with a minimum of deviation from the requirements of this ordinance. Fol example, in the case of variances to an elevation requirement, this means the Board of Appeals and Advisors need not grant permission for the applicant to build at grade, or even to whatever elevation the applicant proposes, but only to that elevation which the City of Chnla Vista believes will both provide relief and preserve the integrity of the local ordinance. E. Variances shall only be issued upon a 1. showing of good and sufficient cause; 2. determination that failme to grant the variance would result in exceptional "hardship" (as defined in 1 &54.100 of this ordinance) to the applicant; and 3. determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance (aK defined in 18.54.100- see "Public safety or nuisance"), cause fraud or victimization (as defined in 18.54.100) of the public, or conflict with existing local laws or ordinances. F. Variances may be issued for new construction, substantial improvement, and othe, proposed new development necessary for the conduct of a functionally dependent use provided that the stmctm-e or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and does not create a public nuisance. G. The City of Chula Vista may attach such conditions to the granting of variances as it deems necessary to further the purposes of this ordinance !8.~..! !9 18.54.180 Ordinance supersedes any conflicting statutes. This chapter shall take precedence over conflicting ordinances or parts of ordinances. The city council may, from time to time, amend the ordinance codified in this chapter to reflect any and all changes in the National Flood lnsmance Program Regulations. In the coastal zone, where conflicts arise between this ordinance and the certified Local Coastal Program, the latter shall prevail. (Ord 2100 ~ 1 (part), 1985; Ord 1842 §1 (part), 1978). 15 TITLE 18 FOOTNOTES 3. 4. 5. For provisions of the statutory Subdivision Map Act, see Bus and Prof Code § 11500; for statutory authority for cities to regulate division of land which is not subdivision, see Bus and Prof Code § 11540.1; for statutory exclusions of land from subdivision, see Bus and Prof Code § 11700 et seq For statutory provisions relating to tentative maps, see Bus and Prof Code § 11550 et seq For statutory provisions regarding form and content of final maps, see Bus and Prof Code § 11567. CROSS REFERENCE: Street plantings, see Ch 12.32. For statutory provisions vesting control over subdivision design and improvement in the governing bodies of cities, see Bus and ProfCode §11525. For statutory provisions vesting control over subdivision design and improvement in the governing bodies of cities, see Bus and Prof Code § 11525. CROSS REFERENCES: Excavations, see Ch 15.04 Street obstructions, see Ch 12.12 For statutory provisions vesting control over subdivision design and improvement in the governing bodies of cities, see Bus and Prof Code § 11525. CROSS REFERENCES: Open Space, see Ch 17.08 Residential Construction Tax, see Ch 3.32 ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 18.54 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO FLOODPLAIN REGULATIONS NOW, THEREFORE, TttE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES ORDAIN AS FOLLOWS: SECTION I: That Chapter 18.54 of the Chula Vista Municipal Code is hereby amended to read as follows: Chapter 18.54 FLOODPLAIN REGULATIONS Sections: 18.54.010 Purpose and intent. !~.54.~!5 18.54.020Lands to which this chapter applies. !S.5n..02O i8.54.030Basis for establishing the areas of special flood hazards. 18.54.040 Methods of Reducing Flood Losses. 18.54.050 Compliance. 18.54.060 Abrogation and Greater Restrictions. 18.54.070 Interpretation. 18.54.080 Warning and Disclaimer of Liability. 18.54.090 Severabilitv. !8.54.030 18.54.100Definitions. !~.?..0~.0 18.54.110Floodplain development--Permits required. !$.54.050 18.54.120Floodplain development--Review by City Engineer. !8.54.060 18.54.130Floodplain development--Review by Building Official. !~.54.070 18.54.140Floodplain development-City engineer action. !8.54.0~0 18.54.150New water and sewage systems. !8.5&090 18.54.160A/teration or relocation of watercourses. 18.54.170 Variance Procedure. !$.54.!00 18.54.180Ordinance supersedes any conflicting statutes. 18.54.010 Purpose and Intent. in order to allow the city to participate in the Federal Flood Insurance Program (National Flood Disaster Protection Act of 1973), it is required that the city adopt regulations controlling the development of property ~vithin identified floodplains pursuant to the direction of said Act. The city council, therefore, assigns to the Building Official and to the City Engineer certain added responsibilities, and they are authorized and directed to enforce all the provisions of this chapter and all other ordinances of the city now in force or hereafter adopted, relating to zoning, subdivision, or building codes. (Ord 2100 §1 (palt), 1985; Ord 1842 § 1 (part), 1978). It is the purpose of this ordinance to promote the public health~ safety, and general welfare, and to minimi7e public and private losses due to flood conditions in specific areas by provisions designed to: a) protect human life and healthi b) nfinimize expenditure of public money for costly flood control projects; 1 c) minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public; d) mithmize prolonged business interruptions; e) minirmze damage to public facilities and utilities such as water and gas mains; electric, telephone and sewer lines; and streets and bridges located in areas of special flood hazard. f) help maintain a stable tax base by providing for the sound use and development of areas of special flood hazard so as to minimize future blighted areas caused by flood damage; g) ensure that potential buyers are notified that property is in an area of special flood hazard; and h) ensure that those who occupy the areas of special flood hazard assume responsibility for their actions. !~.?..015 18.54.020 Lands to which this chapter applies. The provisions of this Chapter 18.54 shall apply to all areas of special flood hazards, areas of flood-related erosion hazards and areas of mudslide (i.e., mndflow) hazards within the jurisdiction of the City of Chula Vista. ! 8.5~..020 18.54.030 Basis lbr establishing the areas of special flood hazards. The areas of special flood hazards identified by the Federal Insurance Administration (FIA) of the Federal Emergency Management Agency (FEMA) in the Flood Insurance Study (FIS) dated June 19, 1997 and accompanying Flood Insurance Rate Maps (FIRMS) and Flood Bnnndm~j and Floodway Maps (FBFMs), dated June 19, 1997, and all subsequent amendments and/or revisions, are hereby adopted by reference and declared to be part of this title. Ibis Flood Insurance Study and attendant mapping is the minimum area of appli~:ability of this title and may be supplemented by studies of other areas which allow implementation of this title and which are recommended to the City Council by the City Engineer. The study and Flood Insurance Rate Maps (Community Panel Numbers 065021 0001 ~0007) are on file at the City Public Se~wices Building at 276 Fourth Avenue. 18.54.040 Methods of Reducing Flood Losses In order to accomplish its purposes, this ordinance includes methods and provisions to A. restrict or prohibit uses which are dangerous to health, safety, and property due to water or erosion hazards, or which result in damaging increases in erosion or flood heights or velocities; B. require that uses vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction; C. control the alteration of natural floodplains, stream channels, and natural protective barriers, which help accommodate or channel flood waters; D. control filling, grading, dredging, and other development which may increase flood damage; and E. prevent or regulate the construction of flood barriers which wilI unnaturally divert flood waters or which may increase flood hazards in other areas. 18.54.050 Compliance. No structure or iand shall hereafter be constructed, located, extended, converted, or altered without full compliance with the term of this ordinance and other applicable regulations. Violation of the requirements (including violations of conditions and safeguards established in cmmection with conditions) shall constitute a -22- ~nisdemeanor. Nothing herein shall prevent the City Council from taking such lawful action as is necessary to prevent or remedy any violation. 18.54.060 Abrogation and Greater Restrictions. This ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However~ where this ordinance and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. 18.54.070 Interpretation. In the interpretation and application of this ordinance, all provisions shall be A. considered as minimum requirements; B. liberally construed in favor of the governing body; and C. deemed neither to limit nor repeal any other powers granted under state statutes. 18.54.080 Warning and Disclaimer of Liability. The degree of flood protection required by this ordinance is considered reasonable for regulatory proposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by ~nan-made or natural causes. This ordinance does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the City Council, any officer or employee thereof, the State of California, or the Federal Insurance Administration, Federal Emergency Management Agency, for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made hereunder. 18.54.090 Severability. This ordinance and the various parts thereof are hereby declared to be severable. Should any section of this ordinance be declared by the com'ts to be unconstitutional or invalid, such decision shall not affect the validity of the ordinance as a whole, or any portion thereof other than the section so declared to be unconstitutional or invalid !8.?..0~ 18.54.100 Definitions. Unless specifically defined in this section, words or phrases used in this chapter shall be interpreted so as to give them the same meaning as they have in co~nmon usage so as to give this chapter its most reasonable application. A. "Area of flood hazard" means areas within the community subje6t to a one percent or greater chance of flooding B. "Basement" means any area of the building having its floor subgrade (below ground level) on all sides. C. "Base Flood" means the flood having a I percent chance of being equalled or exceeded in any given year. D. "Development" means any mmunade change to unproved or unimproved rea estate, including but not limited to buildings or othe~ structures, nfining, dredging, filling, grading, paving, excavation or drilling operations. E. "Flood" means a temporary rise in a stream's flow or stage that results in water overflowing its bm~ks and inundating areas adjacent to the chmmel, or an unusual and rapid accumulation of runoff or surface waters from 3 "Floodproof'mg" means any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood dmnage to real estate or improved real property, water and sanitary facilities, structures and theh' contents. "Fraud and victimization" as related to 18.54.170, Variances, of this ordinance, means that the variance granted must not cause fraud on or victimization of the public. In examining this requirement, the City of Chula Vista will consider the fact that every newly constructed building adds to government responsibilities and remains a part of the community for flfw to one-hundred years. Buildings that are permitted to be constructed below the base flood elevation are subject during ali those years to increased risk of damage from floods, while future o~vners of the property and the community as a whole are subject to all the costs, inconvenience, danger, and suffering that those increased flood damages bring. In addition, future owners may purchase the property, unaware that it is subject to potential flood damage, and can be insured only at very high flood insurance rates. "Hardship" as related to 18.54.170~ Variances, of this ordinance means the exceptional hardship that would result from a failure to grant the requested variance. The City Council requires that the variance be exceptional, unusual, and peculiar to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience~ aesthetic considerations~ physical handicaps~ personal preferences~ or the disapproval of one's neighbors likewise cannot, as a mle~ qualify as an exceptional hardship. All of these problems can be resolved through other means without granting a variance, even if the alternative is more expensive, or requires the property owaer to build elsewhere or put the parcel to a different use than originally intended. "Highest Adjacent Grade" means the highest natural elevation of the ground surface prior to construction next to the proposed walls ofa sUucmre. "Historic structure" means any structure that is h listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register; 2. certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district; 3. individually listed on a state inventmw of historic places in states with historic presetwation programs which have been approved by the Secretary of Interior; or 4. individually listed on a local inventory of historic places in coranaunities with historic preservation programs that have been certified either by an approved state program as determined by the Secretary of the Interior or directly by the Secretary of the Interior in states without approved programs. "Lowest Floor" means the lowest of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage, in an area other than a basement area, is not considered a building's lo,vest floor, provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirements of this chapter. "Manufactured home" means a structure, transportable in one or more sections, which is built on a permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities. For flood management proposes the term "manufactured home" also includes park trailers, travel trailers, and other sirmlar vehicles placed on a site for greater than 180 consecutive days. For insurance purposes the term "manufactured home" does not include park trailers, travel trailer, and other similar vehicles. "Manufactured home park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. "One-hundred-year flood" means the condition of flooding having a one percent chance of annual occurrence. "Public safety and nuisance" as related to 18.54.170, Variances, of this ordinance means that the granting of a variance must not result in anything which is iniurious to safety or health of an entire community or neighborhood, or any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin. "Regulatory flood elevation" means the water surface elevation of the one-hundred-year flood. "Regulatory floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot. The designated regulatory flood ways are the cha~mels of the Sweetwater River and Telegraph Canyon Creek shown on the current flood boundary and floodway map, and the Otay River and Poggi Canyon Creek as shown on the county of San Diego floodway map. "Start of Construction" (for other than new construction or substantial improvements under the Coastal Barrier Resources Act (Public Law 97-348), includes substantial improvement, and means the date the building pernfit was issued, provided the actual start of construction, repair, reconstruction, placement or other improvement was within 180 days of the pencnit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of colunms, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Pemranent construction does not include land preparation, such as clearing, grading and filling; nor does il include the installation of streets, and/or walkways; nor does it include excavation for a basement, lbotings, piers, or tbundations or the erection of temporary forms; nor does it include the installation on the propmW of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main stmcture. "Slructure" means a walled and roofed structure, including a gas or liquid storage tank that is principally above the ground, including but without limitation to buildings, factories, sheds, cabins, mobile homes and other sinfilar uses. "Substantial improvement" means any repair, reconsUnction or improvement of a structure, the cost of which equals or exceeds fifty percent of the market value of the structure either: 1. Before the improvement is started; or 2. If the structure has been damaged and is being restored, before the damage occun'ed. For the purposes of this definition substantial improvement is considered to occur when the fa*st alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration effects the external dimensions of the structure. The term does not, however, include any alteration to comply with existing state or local health, sanitary, building or safety codes or regulations, or structures listed in national or state ~egisters of historic places. 5 18.54.110 Floodplain development-Permits required. No person, finTn or corporation shall erect, construct, enlarge or improve any building or structure, or begin development within areas of flood hazard in the city or cause the same, including the placement of manufactured homes, to be done without first obtaining a building permit for each such action. To obtain such a building permit, the applicant shall first file an application therefor in writing with the Building Official on a form furnished for that purpose. Every such application shall: 1. Identify and describe the work to be covered by the permit for which application is made; 2. Describe the land on which the proposed work is to be done by lot, block, Iract and house and street adth'ess, or smiilar description that will readily identify and definitely locate the proposed building of work; 3. Indicate the use or occupancy for which the proposed work is intended; Be accompanied by necessary plans and specifications for the proposed construction showing the nature, location, dimensions, and elevation of the area in question; existing or proposed structures, fill, storage of materials, drainage facilities; and the location of the foregoingi 5. Be signed by the ~ermi~ee applicant or the applicant's ~ authorized agent who may be required to submit evidence to indicate such authority. Be accompanied by elevations (in relation to sea level) of the lowest floor (including basement) or in the case of floodproofed (as defined in this chapter) nonresidential structures, the elevation to which it has been floodproofed. Documentation or certification of such elevations will be maintained by the ~";~;""~, and housing Building Official. Be accompanied by a certification, submitted by a licensed civil engineer, smlctural engineer, or architect, that the plans and specifications for the proposed building or structure comply with the floodproof'mg require~nents of the National Flood Insurance Program as revised. Said licensed civil engineer, slructural engineer or architect, subsequent to construction of the proposed building or structure but prior to final approval for use or occupancy thereof, shall certify that such building or structure has been so floodproofed and shall specify the elevation to ~vhicb such floodprooPmg is effective. This provision is not applicable to mannfactured homes. Electrical, heating, ventilation, plumbing, and ak-conditioning equipment and other service facilities shall be designed and/or located as to prevent water from entering or accumulating within the components during conditions of flooding. 9. Give such other information as reasonably may be required by the ~; Buildina Official and the City Engineer. In the coastal zone, development in floodplains shall also be required to obtain a coastal development permit consistent with the applicable provisions of the certified Local Coastal Program. 18.54.050 !8.54.!29 Floodplain development--Review by City Engineer. The City Engineer shall review all development permit applications to determine if the site of the proposed development is reasonably safe from flooding, that all applicable requirements of the National Flood Insurance 6 Program have been met, and that ail necessary permits have been received as required by federal or state law. Copies of such pemfits shall be required part of permit applications. STANDARDS FOR SUBDIVISIONS. A. All preliminary subdivision proposals shall identif,/the special flood hazard area and the elevation of the base flood, B. All subdivision plans will provide the elevation of proposed structure(s) and pad(s). If the site is filled above the base flood elevation, the lowest floor and pad elevations shall be certified by a registered professional engineer or surveyor and provided to the City Engineer. C, All subdivision proposals shall be consistent with the need to minimize flood damage. D. All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. E. All subdivisions shall provide adequate drainage to reduce exposure to flood hazards. 18.54.130 Floodplain development-Review by d.~ree:er ef b'.:.qd'.'ng and be=zing Building Official 'Die ,~ir.o.~ ............................... .c ~..,aai% o.a h^.o~.,.~. Building Official, in reviewing all applications for new construction, substantial improvements, prefabricated buildings, placement of manufactured homes and other developments (as defined in this chapter) shall obtain, review and reasonably utilize any base flood elevation and floodway data available from a Ibderal, state or other source, as criteria for requiring that ne~v construction, substantial improvements, or other development in Zone A on the official map meet the following standards: incu.'x:ed "sub?anti_~! damage" as *Ae resu.t of a flood shall be elevated on 2 pe-rmanent feundaha. · zel!aFse and ~atera] movement 7 C. Nonresident!a! s~--'cP_'res shah meet the fo!!ewi':g stand:?~: Frame ties be pra','ided at each comer of the hame with ,ri. ye addition:! ties per side ~-t i':te:mediate d. Any additions to mobile hemes shall be sind!~!y anchored; provided that they permit the alatematiz en~' and e~it of fiaad., aters. 1) STANDARDS OF CONSTRUCTION. In all areas of special flood hazards the following standards are required: A. Anchoring 1. All new construction ~nd substantial improvements shall be adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. 2. All manufactured homes shall meet the anchoring standards to the satisfaction of the Building Official. B. Construction materials and methods. Ali new conshuction and substantial improvement shall be constructed I. with flood resistant materials as specified in FEMA Technical Bulletin TB 2-93, and utility equipment resistant to flood damage; 2. using methods and practices that minimize flood damageS 3. with electrical, heating~ ventilation, plumbing and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering o, accumulating within the components during conditions of flooding; and if 4. within Zones AH or AO, so that there are adequate drainage paths around structures on ~to guide flood waters around and away from proposed structures. Residential structures and substantial hnprovements of residential structures shall meet the following standards~ The lowest floor elevation (to include basement) of new residential structures shall be elevated to a nfinimum of one foot above the regulatory flood elevation; except that in zone AO the lowest floor (including basement) shall be as high as the depth number in feet above the highest a~djacent grade or two feet if no depth number is specified. STANDARDS FOR UTILIT1FS. A. All new and replacement water supply and sanitary sewage systems shall be designed to minimize or eli~ninate: ' - 1. infiltration of flood waters into the systems~ and 2. discharge from the systems into flood waters. B. On-site waste disposal systems shall be located to avoid impairment to them, contamination from them during flo_oding A~ll design of the ~EL0/ect'shall be certified by a registered professional in the respective field of expertise. 9 STANDARDS FOR MANUFACTURED HOMES A. All manufactured homes that are placed on or substantially improved within a special flood hazard area as identified on the city's flood insurance rate map and which are: 1. Outside of a manufactured home park or subdivision; or 2. In a new manufactured home park or subdivision, or 3. In an expansion to an existing manufactured home park or subdivision, or 4. In an existing manufactured home park or subdivision within which a manufactured home has incurred "substantial damage" as the result of a flood. shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is at least one foot above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist flotation, collapse and lateral movement. All manufactured homes to be placed or substantially improved on sites in an existing manufactured home park or subdivision within a special flood hazard area and not subject to the provisions of Section 18.54.130.3.B.1 will be securely fastened to an adequately anchored foundation system to resist flotation, collapse, and lateral movement, and shall be elevated so that either: i. The lowest floor of the manufactured home is at least one foot above the base flood elevation, or The manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade. All manut:actured homes and associated improvements shall be certified by a registered professional engineer and surveyor. 4) STANDARDS FOR NON-RESIDENTIAL STRUCTURES The lowest floor elevation (to include basement) of nom'esidential structures be elevated or floodproofed to a minimum of one foot above the regulatory flood elevation; except that in zone AO the lowest floor {including basement) shall be as high as the depth number in feet above the highest adiacent grade or two feet if no depth number is specified; or together with attendant utility and sanitary facilities be completely floodproofed to or above that level so that any space below that level is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; B. Require the use of construction materials and utility equipment that are resistant to floodwater damage; C. Require the use of construction methods and practices that will nfinimize flood damage; Be designed or anchored to prevent the flotation, collapse or lateral movement of the structure or portions of the structure due to flooding. Said design shall be certified by a registered professional engineer and surveyor; For all new construction and substantial improvements, fully enclosed areas belo~v the lowest floor that are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engh~eer or architect or must meet or exceed the following minimum criteria: A minimum of two openings have a total net area of not less than one square inch for every square foot of enclosed area subiect to flooding shall be provided. The bottom of all openings shall be no higher than one foot above grade. Openings may be equipped with screens, louvers~ or other coverings or devices provided that they permit the automatic entry and exit of floodwaters. !~.5q.070 18.54.140 Floodplain development-City Engineer action. The City Engineer shall review all subdivision and land development permit applications and shall make findings of fact and assure that: A. All such proposed developments are consistent with the need to minimize flood damage; Proposals for subdivisions and other new development incorporating tnore than five acres of fifty lots, whichever is lesser, show on tentative parcels maps, tentative subdivision maps or site plans, regulatory flood elevation data for any included area designated zone A, zone Al-30 or zone AO; C. Adequate drainage is provided so as to reduce exposure to flood hazards; D. All public utilities and facilities are located so as to minimize or eliminate flood damage; E. The natural landscape of all designated floodways and major watercourses is substantially preserved; An evacuation plan indicating alternate vehicular access and escape routes is filed with appropriate Disaster Preparedness Authorities for manufactured home parks and manufactured home subdivisions located within zone A, zones Al-30 and zone A0; Within zones Al-30, new manufactured home parks and manufactured home subdivisions, expansions to existing manufactured home parks and manufactured home subdivisions, and existing manufactured home parks and manufactured home subdivisions xvhere the repair, reconsmaction or improvement of the stt'eets, utilities and pads equals or exceeds fifty percent of the value of the streets, utilities and pads before the repair, reconstruction or improvement has commenced have: 1. Stands or lots elevated on compacted fill or on pilings so that the lowest floor of the manufactured home ~vill be at least one foot above the base flood level, 2. Adequate surface drainage and access for a hauler, and In the instance of elevation on pilings, lots are large enough to permit steps, piling foundations are placed in stable soil no more than ten feet apart, and reinforcement is provided for pilings more than six feet above the ground level; Any encroachments, including fill, new construction, substantial improvements, and other developments within the designated regulatory floodways that would result in any increase in flood levels during t& occurrence of a one hundred year flood discharge are prohibited. In the coastal zone, the City Engineer shall review all subdivision and land development permit applications and shall reconunend to the City Council findings as to whether any proposed subdivision complies with the provisions of the certified Local Coastal Program and the standards of Subsections A-H, above. !~.5~.0~0 18.54.150 New water and sewage systems. New water and sewer systems shall be constructed to eliminate or minimize infiltration by, or discharge into, floodwaters. Moreover, on-site waste disposal systems will be designed to avoid impairment or contamination during flooding. (Ord 2100 §1 (part), 1985; Ord 1842 §1 (part), 1978). !~.?..090 18.54.160 Alteration or relocation of watercourses. The City Engineer shall review all plans for alteration or relocation of any watercourse within the city to assure that the flood-carrying capacity of such watercourse is maintained. The city will notify, in riverain situations, affected communities and the state coordinating office prior to any alteration or relocation of a watemourse, and submit copies of such notifications to the administrator of the Federal Insurance Administration. Moreover, city officers will work with appropriate State and Federai agencies in complying with the National Flood Insurance Program in accordance with the National Flood Disaster Protection Act of 1973. In the coastal, any subdivision that involves the alteration or relocation of a stream shall also confonn to the applicable provisions of the certified local coastal program. chapter. -- 7. The. aF?licant has he~n nctfiied that the '-'se 'of the except!ch ccu!d result in a substa-,;-~; ....... ;- flood - 8. The city '.v/Il ~-;- -- cffici2! record of z!! exceptions, and w/I! re-ca ther~^- ;- ;, ....... [ ..... *~ }hfl 18.54.170 Variance Procedure 1) NATURE OF VARiANCES. The variance criteria set forth in this section of the ordinance are based on the general principle of zoning law that variances pertain to a piece of property and are not personal in nature. A variance may be granted for a parcel of property with physical characteristics so unusual that complying with the requirements of this ordinance would create an exceptional hardship to the applicant or the surrounding property owners. The characteristics must be unique to the property and not be shared by adiacent parcels. The unique characteristic must pertain to the Iand itself, not to thc structure,/ts inhabitants, or the property owners. It is the duty of the City of Chula Vista to help protect its citizens from flooding. This need is so compelling and the implications of the cost of insuring a structure built below flood level are so serious that variances from the flood elevation or from other requirements in the flood ordinance are quite rare. The long term goal of preventing and reducing flood loss and damage can only be met if variances are strictly limited. Therefore, the variance guidelines provided in this ordinance are more detailed and contain multiple provisions that must be met before a variance can bc properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate. APPEAL BOARD. A. In passing upon requests for variances, the Board of Appeals and Advisors shall consider all technical evaluations, all relevant factors, standards specified in other sections of this ordinance, and the 1. danger that materials may be swept onto other lands to the injury of others; danger of lite and propm%, due to floodine or erosion damage; 3. susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the existing individual owner and future owners of the property; ~4. importance of the services provided by the proposed facility to the con~nuniW; 5. necessity to the facility ora waterfront location, where applicable; 6. availability of alternative locations for the proposed use which are not subiect to flooding or erosion damage; 7. compatibility of the proposed use with existing and anticipated development; 8. relationship of the proposed use to the comprehensive plan and floodplain management ~gram for that area; 13 9. safety of access to the property in time of flood for ordinary and emergency vehicles; 10. expected heights, velocity, duration, rate of rise, and sediment transport of the flood waters expected at the site; and 11. costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water system, and streets and bridges. B. Any applicant to whom a variance is granted shall be given written notice over the signature of a Building Official that 1. the issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for every $100 of insurance coverage, and 2. such construction below the base flood level increases risks to life and property. It is recommended that a copy of the notice shall be recorded by the Building Official in the Office of the County Recorder and shall be recorded in a manner so that it appears in the 3) chain of title of the affected parcel of land. C. The Building Official will maintain a record of all variance actions, including iustification for their issuance, and report such variances issued in its biennial report submitted to the Federal Insurance Administration, Federal Emergency Management Agency. CONDITIONS FOR VARIANCES. A. Generally, variances may be issued for new construction, substantial improvement, and other proposed new development to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level. As the lot size increases beyond one-half acre~ the technical justification required for issuing the variance increases. B. Variances may be issued for the repair or rehabilitation of "historic structures" (as de£med in 18.54.030 of this ordinance) upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. C. Variances shall not be issued within any mapped regulatory floodway if any increase in flood levels during the base flood discharge would result. D. Variances shall only be issued upon a determination that the variance is the "minimum necessary" considering the flood hazard, to afford relief. "Minimum necessary" means to afford relief with a minimum of deviation from the requirements of this ordinance. For example, in the case of variances to an elevation requirement, this means the Board of Appeals and Advisors need not grant permission for the applicant to build at grade~ or even to whatever elevation the applicant proposes, but only to that elevation which the City of Chula Vista believes will both provide relief and presetwe the integrity of the local ordinance. E. Variances shall only be issued ~on a 1. showing of good and sufficient cause; 2. detem~ination that failure to grant the variance would result in exceptional "hardship" (as defined in 18.54.100 of this ordinance) to the applicant; and 3. determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, or extraordinary public expense, create a nuisance (as defined in 18.54.100- see "Public safety or nuisance"), cause fraud or victimization (as defined in 18.54.100) of the public, or conflict with existing local laws or ordinances. F. Variances may be issued for new construction, substantial improvement, and other proposed new development necessary for the conduct of a functionally dependent use provided that the structure or other development is protected by methods that minimize flood damages during the base flood and does not result in additional threats to public safety and_ does not create a public uuisance. G. The City of Chula Vista may attach such conditions to the granting of variances as it deems necessary to further the purposes of this ordinance. !8.?..! !.n 18.54.180 Ordinance supersedes any conflicting statutes. This chapter shall take precedence over conflicting ordinances or parts of ordinances. The city council may, fronr time to time, amend the ordinance codified in this chapter to reflect any and all changes in the National Flood Insurance Program Regulations. In the coastal zone, where conthcts arise between tbis ordinance and the certified Local Coastal Program, the latter shall prevail.. SECTION 1I: This ordinance shall become effective upon the thirtieth day from and after its second reading and adoption. Presented by Approved as to form by John P. Lippitt Director of Public Works J 5attomey\ord\floodplain 15 COUNCIL AGENDA STATEMENT Item Meeting Date: ITEM TITLE: SUBMITTED BY: REVIEWED BY: Resolution Approving a first amendment to agreement between the City of Chula Vista and MuniFinancial for engineering services, approving the appropriation of $200,000 for said first amendment from the available fund balance in the Transportation Development Impact Fee fund, and authorizing the Mayor to e/Xecute said amendment Director of Public Work¢ (~ City Manager ~'[c r (4/5 Vote: Yes X No ) The City Council approved resolution No. 2001-344 on October 9, 2001 approving a contract with MuniFinancial for auditing and administering the City's Development Impact Fee (DIF) programs. This agreement for engineering auditing services allows the City to respond to the ongoing DIF audit/credit work and streamline the permit issuance process. RECOMMENDATION: That Council adopt the resolution approving the first amendment to the agreement between the City of Chula Vista and MuniFinancial extending for an additional year MuniFinancial's contract for engineering services related to the auditing of public facilities construction costs and the administration of the City's Development Impact Fee (DIF) programs, approves the appropriation of $200,000 based on revenue from Development Impact Fees, and authorizing the City Manager to approve future contract extensions, and authorizing the Mayor to execute said amendment to agreement BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: Background The City's Transportation Development Impact Fee program allows developers to construct needed facilities in lieu of fees at building permit issuance. With the ongoing construction of public facilities to serve rapidly growing communities within Chula Vista's "Eastern Territories", it is imperative that audits of the construction and an accurate accounting of the funding of these facilities be performed in a timely fashion (see attachment 2 for current audit status). Staff recommends amending the approved agreement with MuniFinancial, extending for an additional year the contract for engineering services related to audit work and the administration of the City's DIF programs to assist staff as construction activities are expected to remain strong in the near future. The consultant selection process was followed in awarding MuniFinancial the subject contract. Staff recommends that the City Manager be authorized to Page 2, Item ?~ Meeting Date 11/19/02 approve, with the City Attorney's concurrence, one future contract extension for a year term, as it will be for the same scope of work. Contract Goals Staff recommends extension of consultant contract to continue to provide engineering services to assist staff in responding to workload levels in the auditing process and administration of the City's DIF programs. Staff's recommendation to continue consultant assistance is based on the following principles and goals: Maintain reasonable DIF audit and processing times for the determination and assignment of eligible credits for public improvements. Based on workload projections, staff recommends using consultant services to assist staff in complying with reasonable processing times and assuming responsibility of the entire DIF audit/credit process. Eliminate current DIF audit/credit backlog. With current staff, insufficient resources have resulted in a backlog of 6 projects still in process and 8 projects that have not yet begun. Produce monthly status reports to keep staff and developers abreast of their respective DIF credits, as well as updating our building permits' database. Avoid permanent overstaffing in response to current peak workload levels. With overstaffing, problems would arise should construction activities slow at some point in the future. Staff recommends that a consultant be retained, providing a professional team to address the peak workload, eliminating the need for overstaffing and still meeting reasonable review timeframes. Create a complete DIF credit accounting system and maintain up-to-date status reports. The detailed accounting of DIF credits has become quite complicated due to the concurrent audit required for DIF-eligible costs with several Community Facility Districts (CFDs). In addition, an up-to-date credit status situation for every developer and every CFD should be readily available at the time of issuance of each building permit. Currently, staff manages this process using a fragmented system consisting of several databases and spreadsheets. The Consultant will create a centralized system based on Permit Plus software used for building permits, and will manage the accounting and auditing activities for all DIF credits. The contract extension term is for one year, subject to renewal at the City Manager's discretion, upon written request by the City Engineer for another one-year extension. Page 3, Item__~_ Meeting Date 11/19/02 FISCAL IMPACT: The resolution approves the extension of contract in the fom~ attached with MuniFinancial, attthorizes the City Manager to approve a future one-year extension to contract, and attthorizes the Mayor to execute the amendment to agreement. The existing contract authorized a maximum expenditure of $230,000. The consultant expended a total of $169,303 since October 2001. The resolution approves the appropriation of $200,000 based on revenue from Development Impact Fees. The total compensation shall not exceed $200,000 in any one year. The contract is based on an hourly rate. All initial costs will be paid out of the TDIF fund. Consultant work performed on other DIF projects wilI reimburse the TDIF fund with a future appropriation; based on which DIF projects are audited at contract completion. The costs ol'the contract will be borne by the Development Impact Fee programs based on those programs, which are actually audited by the consultant. The original Agreement with MuniFinancial was ['or $230,000 and the amendment is for $200,000. The total amount of funds paid to MuniFinancial in the past 12 months for all city work is $ 274,295. Exhibit: l . ~'~ro party agreement bct~een thc City of Chula Vista and MuniFinancial for Engineering Services 2 Currenl audit status Parties and Recital Page(s) Agreement between City of Chula Vista and MuniFinancial for auditing and administering the City's Development Impact Fee (DIF) programs This agreement ("Agreement"), dated 10/09/2001 for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, City desires to seek professional consultant services for the execution and maintenance of an audit and accounting system for tracking Development Impact Fee (DIF) credit activity; and, Whereas, on August 6, 2001, City solicited proposals from approximately sixty (60) firms and individuals to provide: 1) Auditing of eligible DIF improvements; 2) Assuring compliance with City procedures and ordinances as they apply to DIF credits; 3) Drafting documents necessary for DIF credit approvals; and 4) Providing ongoing maintenance of a DIF accounting system; and, Whereas, MuniFinancial submitted a proposal which was determined by City staff to be responsive to City's request for proposals (RFP); and, Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) J:~Engineer\DIF_2prtyagr.doc August 1,2001 Standard Form Two Party Agreement (Thirteenth Revision) Page I Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8 of this agreement, entitled" Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C, Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. J:~Engineer\DIF_2prtyagr.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 2 E. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, 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. F. Insurance Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, er shall meet with the approval of the City: Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 9. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City in the same manner as members of the general public ("Cross-liability Coverage"). Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omissions coverage is included in the General Liability policy. G. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured, J:~Engineer\DI F_2pdyagr.doc August 1, 2001 Standard Form Two Pady Agreement (Thirteenth Revision) Page 3 (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. H. Security for Performance. (1) Performance Bond. In the event that Exhibit A, at Paragraph 20, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 20, Exhibit A. (2) Letter of Credit. In the event that Exhibit A, at Paragraph 20, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 20, Exhibit A. (3) Other Security In the event that Exhibit A, at Paragraph 20, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security*'), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. J :',Engineer\DiF_2prtyagr.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 4 I. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these materials beyond 30 days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 19, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 19, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 20 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 19 (C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 13, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. J:\Engineer\DIF_2prtyagr. doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 5 4, Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 14. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate"). Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's J:\Engineer\DIF_2prtyagr. doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 6 position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 15. Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City J:\Engineer\DIF_2prtyagr. doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 7 '7 of any such promise that maybe made dudng the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising out of the conduct of the Consultant, or any agent or employee, subcon- tractors, or others in connection with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the City, its officers, or employees. Consultant's indemnification shall include any and all costs, expenses, 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, Consultant at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Consultants' indemnification of City shall not be limited by any prior or subsequent declaration by the Consultant. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant 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 Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant 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 the amounts payable hereunder, and less any damages caused City by Consultant's breach. J:\Engineer\DIF_2prtyagr. doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 8 9. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the perCormance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) 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, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 18 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material 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 pmducod under this Agreement. J:\E ngineer~DIF_2prtyag r. doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 9 7 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products, Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them [shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with. regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Consultant prepares a report or document, or par/icipates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. J:\Engineer\DI F_2prtyagr.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 10 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 17 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been propedy given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof, Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. J:\Engineer\DI F_2prtyagr.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 11 _ 7 4¢ F. Governing LawNenue 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. [end of page. next page is signature page.] J:~Engineer\DIF_2prtyagr. doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 12 Signature Page to Agreement between City of Chula Vista and MuniFinancial for auditing and administering the City's Development Impact Fee (DIF) programs IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ,200 City of Chula Vista Shirley Horror, ~Vlayor Attest: Susan Bigelow, City Clerk Approved as to form: Jo~Kaheny, City Attome~_.~~' Dated: MuniFinancial Michael McNamara Vice President, Division Manager Financial Consulting Services Exhibit List to Agreement Exhibit A Exhibit B Exhibit C Exhibit D. J:\Engineer\DIF_2prtyag r. doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 13 Exhibit A to Agreement between City of Chula Vista and MuniFinancial 1. Effective Date of Agreement: 2. City-Related Entity: (x) () () 10/09/01 City of Chula Vista, a municipal chartered corporation of the State of California Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California Industrial Development Authority of the City of Chula Vista, a () ("City") 3. J:\E ngineer\DIF_2prtyag r.doc August 1, 2001 Other: , a [insert business form] Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: MuniFinancial Management and Ownership, A Willdan Company Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation Place of Business, Telephone and Fax Number of Consultant: 9275 Sky Park Court, Suite 110 San Diego, California 92123 Standard Form Two Party Agreement (Thirteenth Revision) Page 14 Phone: (858) 467-6955 Ext. 11 Fax: (858) 467-1346 1. General Duties: Consultant shall provide turnkey auditing services for the City and process all Development Impact Fee (DIF) credit authorizations as outlined in the applicable city ordinance, Consultant will also generate monthly credit summaries for all developers with DIF credit within the City. The general duties are logically outlined as follows: A. Project Management B. Processing Developer Requests for DIF Credit C. Submission of Audit Services Proposal by Consultant D. Audit of DIF-Eligible Improvements E. Maintenance and Administration of Citywide DIF Credit Trust Accounting 8. Scope of Work and Schedule: A. Detailed Scope of Work: All work performed by Consultant pursuant to the terms of this contract shall be to the satisfaction of the Director of Public Works. 1.0 Project Management The Consultant, through its Project Manager, shall become familiar with all aspects of the City's DIF ordinances, policies, and directives and procedures~, and shall oversee, control, and coordinate all aspects of this scope of work regarding various DIF eligible projects, as identified by the City, through preparing and presenting documents for City Council approval for eligible DIF credit to developers, and performing tasks necessary to ensure efficient, timely management of the project. The Consultant's Project Manager shall act as the liaison between the Consultant's staff, the City's engineers and technicians, developers, etc., and attending meetings, upon request of the City. ~ Current existing Development Impact Fees are as follows: Transportation DIF (TDIF), Public Facilities DIF (PFDIF), Poggi Canyon Sewer DIE, Telegraph Canyon Gravity Sewer DIF, Telegraph Canyon Pumped Sewer DIF, Salt Creek Sewer DIF, SR-125 DIF, and Traffic Signal Fee. Additional DIF's may be established by the City, which may require auditing of facilities eligible for credit towards such DIF's (See Exhibit "D" affached for a list of all existing Development Impact Fee programs and their application). J:\Engineer\DIF_2prtyag r.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 15 2.0 Processing Developer Requests for DIF Credit Within ten (10) working days from City of receipt of a developer's request to construct a DIF eligible facility, Consultant shall submit to City staff a Council Agenda Statement, providing a factual basis for the City to authorize the developer to construct the facility and make recommendations for the advancement of credit to the developer as applicable to each DIF ordinance. At a minimum, Consultant shall provide: i. Construction schedule for the facility ii. Proof of bonding and plan approval of the facility iii. Request additional information from the developer as needed, in the event the developer's request is deficient iv. Obtain a detailed project description and a detailed cost estimate and compare with DIF estimate v. Proof of eligibility of improvements to be funded by DIF vi. A draft Council Agenda Statement authorizing developer to construct the facility per the applicable ordinance vii. Other elements as required by the applicable DIF ordinances 3.0 Submission of Audit Services Proposal by Consultant Within 5 working days of the City's delivery to the Consultant of a developer's request for DIF credit, subsequent to authorization from City Council to construct a facility (an "audit package"), the Consultant shall submit to the City a proposal to perform the audit. Such proposals shall set forth the Consultant's fee and demonstrate a factual basis to support such fee. Consultant shall not begin work on an audit package pdor to receipt of a Notice to Proceed from the Director of Public Works or designee. The City reserves the right to reject any of Consultant's proposals for work on a particular audit package. 4.0 Audit of DIF-Eligible Improvements Upon Consultant's receipt of a Notice to Proceed to work on an audit package, Consultant shall refer to specific audit procedures in the applicable City ordinance, as well as City directives and procedures for each particular Development Impact. a, Upon receipt of Notice to Proceed, Consultant shall commence work on an audit package and complete audit within 15 business J :\Engineer\DIF_2prtyagr.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 16 days. b. Consultant shall meet with the City Inspection staff to verify facilities constructed for every incremental credit request and authorization. c. Consultant shall summarize in a format as directed by City staff all change orders submitted by a developer, make recommendations for approval/rejection of the change orders and shall schedule meetings upon the request of the City to resolve conflicts regarding incremental credit requests and authorization. d. All audits shall be in conformance with City's DIF ordinances. e. Upon final completion of each audit, Consultant shall compare the actual cost of each facility to the relevant DIF budget. f. Consultant shall determine from an audit package whether there has been an incremental completion of the project by a developer, and recommend, in writing, the authorization of the Director of Public Works a prescribed percentage (i.e. 50%, 75%, or 100%) of the total preliminary cost estimate, as specified in the respective DIF ordinance. 5.0 Maintenance and Administration of Citywide DIF Credit Trust Accounting Consultant shall prepare a written monthly report, reflecting the current status of each developer's DIF credit accounts. Such a report shall be provided to City 15 days after the City delivers to Consultant a monthly building permit activity report, B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: (See Section 8A above for delivery schedule) Deliverable No. 2: Deliverable No. 3: D. Date for completion of all Consultant services: J:\Engineer\DIF_2prtyagr.doc August 1,2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 17 One year from the effective date of this contract 9, Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). (X) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 10. Materials Required to be Supplied by City to Consultant: The City of Chula Vista utilizes Permits Plus by Accela as the in-house building permit system. A component of Permits Plus called "Trust Accounting" tracks DIF activity for all DIF-eligible facilities within the City's building permit process for every developer. City will provide Consultant with building permit activity reports. 11. Compensation: A. ( ) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: . payable as follows: Milestone or Event or Deliverable Amount or Percent of Fixed Fee () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans which must be returned to the City if the Phase is not satisfactorily completed. Ifthe Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 20 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a J:\Engineer\DI F_2prtyag r.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 18 7-2/ B.( phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. $ 2. $ J:\Engineer\DIF_2pdyagr.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 19 () 1. Intedm Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 20 is to be applied to each interim payment such that, at the end of the phasel the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement Maximum total compensation for this contract shall be $230,000. For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule hereinbelow according to the following terms and conditions: 1.0 (X) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant including all Materials, and other "reimbursables" ("Maximum Compensation"). a. Project Management Services: J:\Engineer\DIF_2prtyag r.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 20 -7 -25 (2) For all services outlined in Section 8.A.1.0 above, the maximum compensation shall be 30 hours per month per Exhibit "B" for a "Project Manager (MuniFinancial)". b_ Audit of DIF-Eligible Improvements: For all services outlined in Section 8.A.4.0 above, the maximum compensation shall be determined by negotiation between City and Consultant at the time Consultant submits an audit services proposal, using rates as set forth in Exhibit "B". Consultant shall use the Maximum Compensation amount of $4,500 per $1 million of facilities to be audited as a guideline for estimation of the compensation amount. c. Maintenance and Administration of Citywide DIF Credit Trust Accounting: For all services outlined in Section 8.A.5.0 above, the maximum compensation shall be 30 hours per month per Exhibit "B" for a "Support Staff (MuniNVilldan)". ( ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Rate Schedule Category of Employee of Consultant Name N/A (See attached Exhibit "B") Hourly Rate J:\Engineer\DI F_2prtyagr.doc August 11 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 21 () Houdy rates may increase by 6% for services rendered after [month], 19 , if delay in providing services is caused by City. 12. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (X) None, the compensation includes all costs. Cost or Rate ( ) Reports, not to exceed $ ( ) Copies, not to exceed $ ( ) Travel, not to exceed $ ( ) Printing, not to exceed $ ( ) Postage, not to exceed $ ( ) Delivery, not to exceed $ ( ) Long Distance Telephone Charges, not to exceed $~__ ( ) Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ 13. Contract Administrators: City: Tom Adler, Civil Engineer Consultant: Tom Bandy, Senior Project Manager 14. Liquidated Damages Rate: ( ) $ per day. ( ) Other: 15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer J:\E ngineer~DIF_2prtyagr, doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 22 Category No. 1. Investments and sources of income. Category No. 2. Interests in real property. Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( Category No. 7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 16. Consultant hereby represents that for 6 months prior to signing its proposal it did not conduct, solicit, perform, or retain any business with any person, entity, landholder or developer (collectively "Developer") which has requested DIF credit from the City for the same 6 months; warrants that during the effective period of the contract consultant will not conduct, solicit, perform, or retain any business with any Developer which will be requesting DIF credit during the effective period of this contract; and covenants that for a 6 month period after the termination of the contract consultant will not conduct, solicit, perform, or retain any business with any Developer which will be requesting DIF credit during the 6 months following termination ofthis contract; For purposes of this paragraph, Developer J :\Engineer~DIF_2prtyagr. doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 23 includes but is not limited to those entities listed on Exhibit "C" hereto. Further, the consultant hereby warrants and covenants not to hold or obtain any interest, financial or otherwise (i.e. promise of future employment, remuneration, gratuity, or other reward or gain) as a result of any agreement with any Developer participating in a DIF project subject to audit. 17. ( ) Consultant is Real Estate Broker and/or Salesman 18. Permitted Sub consultants: None 19. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: B. Day of the Period for submission of Consultant's Billing: ( ) First of the Month ( ) 15th Day of each Month (X) End of the Month ( ) Other: C. City's Account Number: See attached Exhibit "D" 20. Security for Performance N/A ( ) Performance Bond, $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount: $ ( ) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: J:\Engineer\DIF_2prtyagr.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 24 ( ) Retention Percentage: __ ( )Retention Amount: $ Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: J:~Engineer\DI F_2prtyagr.doc August 1, 2001 Standard Form Two Party Agreement (Thirteenth Revision) Page 25 Exhibit "B" MuniFinancial/Willdan Schedule of Hourly Ra~es Division Manager (Willdan) Principal Consultant (MuniFinancial) Senior Project Manager (MuniFinancial) ?roject Manager (MuniFinancial) genior Design Engineer II (Willdan) Senior Design Engineer I (Willdan) genior Analyst (MumFinancial) )esign Engineer II (Willdan) Design Engineer I (Willdan) Analyst (MuniFinancial) Drafter I1 (Willdan) Analyst Assistant (MuniFinancial) Property Owner Services Rep (MuniFinancial) Support Staff IMuni/Willdan) $180 $135 $145 $125 $105 $95 $90 $85 $85 $80 $75 $7O $65 $50 $45 J:\Engineer',DIF_2prtyagr,doc August 1, 2001 Standara Form Two Party Agreement (Thirteenth Revision) Page 26 Exhibit "C" List of DevelopemlLandholders 1. Ayres Land Company, Inc. 2. Brookfield Shea Otay, LLC 3. Eastlake Company, LLC 4. McMillin Land Development 5. Otay Ranch Company 6. Trimark Pacific Homes, L.P. J:~Engineer\DIF_2prtyagr. doc August 1, 2001 ' Standard Form Two Party Agreement (Thirteenth Revision) Page 27 EXHIBFt'~ ~' o RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND MUNIFINANCIAL FOR ENGINEERING SERVICES, APPROVING THE APPROPRIATION OF $200,000 FOR SAID FIRST AMENDMENT FROM THE AVAILABLE FUND BALANCE IN THE TRANSPORTATION DEVELOPMENT IMPACT FEE FUND, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the City Council, by Resolution No. 2001-344 on October 9, 2001, approved a contract with MuniFinancial for auditing and administering the City's Development Impact Fee (DIF) programs; and WHEREAS, the agreement for engineering auditing services allows the City to respond to the ongoing DIF audit/credit work and streamline the permit issuance process; and WHEREAS, it is imperative that audits of the construction and an accurate accounting of the funding be performed in a timely fashion, therefore, staff is recommending that the agreement be extended for an additional year; and WHEREAS, the total compensatioo shall not exceed $200,000 in any one year and an appropriation of $200,000 is needed based on revenue from Development Impact Fees; and WHEREAS, it is recommended that the City Manager be authorized to approve a future contract extension. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista, does hereby approve a First Amendment to the Agreement between the City of Chula Vista and MuniFinancial extending for an additional year their contract for engineering services related to the auditing of public facilities construction costs and the administration of the City's Development Impact Fee (DIF) programs, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to approve a future contract extension. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said amendment on behalf of the City. BE IT FURTHER RESOLVED that the amount of $200,000 is hereby appropriated for said First Amendment from the available fund balance in the Transportation Development Impact Fee Fund. Presented by: Approved as to form by: John P. Lippitt Johffl~. ~hbny Director of Public Works City Attorney J:\Attorney\reso\munifinancial [~t anlendnlent engineering services 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 /JU~h~/M'. Kaheny City Attorney Dated: II" [,3 '" 0 2- FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND MUNIFINANC~AL FOR ENGINEERING SERVICES Parties.and Recital Page(s) First Amendment to the Agreement between City of Chula Vista and MuniFinancial for auditing and administering the City's Development Impact Fee (DIF) programs Recitals Whereas, the City Council adopted Resolution No. 2001-344, approving an agreement ("Original Agreement") with MuniFinancial, Inc. ("Consultant") on October 9,2001 to provide 1) Auditing of eligible DIF improvements; 2) Assuring compliance with City procedures and ordinances as they apply to DIF credits; 3) Drafting documents necessary for DIF credit approvals; and 4) Providing ongoing maintenance of a DIF accounting system; and, Whereas, the Request for Proposals and Council Agenda Statement approving the agreement anticipated a one year extension to the agreement; and, Whereas both the City and the Consultant desire to extend the agreement term for one year; and, Whereas, Section 1. D of the Original Agreement provides for the inclusion of additional duties to be performed by the Consultant if in writing, and if they are within the scope of services offered by Consultant, and; Whereas, Consultant warrants and represents that they are still experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this First Amendment to the original Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) Page 1 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree that all provisions of the Original Agreement shall remain in effect except as amended as follows: I. Exhibit A, Section 8.D shall be amended as follows: D. Date for completion of all Consultant services: October 9, 2003 Il. Exhibit A, Section 11.C,1.0, shall be amended as follows: C. (X) Hourly Rate Arrangement Maximum total compensation for this agreement shall be as follows: Maximum Term Compensation Notes per year 2002/2003 $200,000 For First Amendment to agreement 2003/2004 $200,000 If agreement extension is approved by City Manager For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: 1.0 (X) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant including all Materials, and other "reimbursables" ("Maximum Compensation"). a. Project Management Services: For all services outlined in Section 8.A.1.0 above, the maximum compensation shall be 30 hours per month per Exhibit "B" of the Original Agreement for a "Project Manager (MuniFinancial)". Page 2 b. Audit of DIF-Eligible Improvements: For all services outlined in Section 8.A.4.0 of the Original Agreement, the maximum compensation shall be determined by negotiation between City and Consultant at the time Consultant submits an audit services proposal, using rates as set forth in Exhibit "B" of the Original Agreement. Consultant shall use the Maximum Compensation amount of $4,500 per $1 million of facilities to be audited as a guideline for estimation of the compensation amount. c. Maintenance and Administration of Citywide DIF Credit Trust Accounting: For all services outlined in Section 8.A.5.0 above, the maximum compensation shall be 30 hours per month per Exhibit "B" of the Original Agreement for a "Support Staff (MuniFinancial)". Ill. Exhibit A, Section 11 is hereby amended to add new paragraph "D" as follows: D. Upon the request of the City Engineer, City Manager is hereby authorized to approve an additional extension of this agreement for a term of one year, as approved by the City Attorney. IV. All other terms and conditions of the Original Agreement not modified by this first amendment shall remain in full force and effect. [end of page. next page is signature page.] Page 3 Signature Page to First Amendment to the Agreement between City of Chula Vista and MuniFinancial for auditing and administering the City's Development Impact Fee (DIF) programs IN WITNESS WHEREOF, City and Consultant have executed this First Amendment thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ,200 City of Chula Vista Attest: by: Shirley Horton, Mayor Susan Bigelow, City Clerk Approved as to form: John M. Kaheny, City Attorney Dated: MuniFinancial By: Michael McNamara, Vice President Financial Consulting Services Page 4 COUNCIL AGENDA STATEMENT ITEM TITLE: Item S Meeting Date 11/19/02 Resolution Approving a first amendment to the agreement with ManiFinancial, LLC for the Special Tax Consultant Services required for the annexation of Village 6 and Village 11 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97-2), and authorizing the Mayor to execute said amendment. Resolution Approving a first amendment to the agreement with Best Best and Krieger, LLP, for the Special Tax Legal Counsel Services required for the annexation of Village 6 and Village 11 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97-2), and authorizing the Mayor to execute said amendment. SUBMITTED BY: Director of Public Works I~r' REVIEWED BY: City Manager rj i?l~ (4/Sths Vote: Yes No X ) Pursuant to previously approved agreements, the Consultant, MuniFinancial, LLC has been providing special tax consultant services, and the Consultant, Best, Best and Krieger, LLP has been providing the Special Tax Legal Counsel necessary for the formation of many Maintenance Community Facilities Districts within the City of Chula Vista. The scope of their services included in the original agreement was to provide special tax services for the formation of Maintenance Community Facilities Districts for Eastlake Ill Woods & Vistas, McMillin Company Village 6, Otay Ranch Village 6, Brookfield-Shea-Otay Village 11, Village 12 Freeway Commercial and Eastlake Land Swap Parcel, pursuant to the "Mello-Roos Community Facilities Act of 1982". Staff is recommending that the consultant's agreements be amended to enable the consultants to continue to provide needed services for the required annexation of Villages 6 and 11 to Improvement Area A of CFD 97-2. RECOMMENDATION: That Council approve the resolutions approving a first amendment to the agreements with MuniFinancial, LLC for the Special 'Fax Consultant Services, and with Best Best and Krieger, LLP, for the Special Tax Legal Counsel Services required for the annexation of Village 6 and Village 11 to the existing CFD 97-2 (Preserve Maintenance District), and authorizing the Mayor to execute said first amendment to the agreements. BOARDS/COMMISSIONS RECOMMENDATION: None Page 2 item ~ Meeting Date 11/19/02 DISCUSSION: On March 12, 2002, Council by Resolution No.2002-062 approved the agreement (Attachment No. 1) with MuniFinancial, LLC for Special Tax Consultant Services, and Resolution No. 2002-063 approved the agreement (Attachment No.2) with Best Best and Krieger, LLP for Special Legal Counsel services. The approval of the first amendments to the agreements will authorize the consultant, MuniFinanical to continue to provide special tax services, and the law firm of Best, Best and Krieger to provide special legal counsel services required for the annexation of Village 6 and 11 to Improvement Area A of the Otay Ranch Preserve Maintenance District. The District funds the monitoring, operations and maintenance of the Otay Ranch Preserve, which is composed of lands that are offered for conveyance upon approval of fmal maps in the Otay Ranch General Development Plan area that includes Villages 6 and 11. The conditions of approval 1hr these Villages require that they annex to the existing District or form a new District. Both MuniFinancial and Best, Best and Krieger are providing the necessary services for the formation of districts that will fund the maintenance of on-site landscaping and other services within these Villages. Therefore, they are familiar with the projects' schedule requirements and have worked closely with City staff on the maintenance district formations. The current agreements with both MuniFinancial and Best, Best and Krieger provide for payment of additional services on a time and materials basis, therefore the relatively minor fees involved in the annexation process would not need to be renegotiated. ']7he City's interests would be materially better served by approving the amendments to the agreements to include the annexation services. FISCAL IMPACT The Developers will solely fund the costs involved in this first amendment to the Agreements. The original Agreement with MuniFinancial was for $95,545 and the amendment is for $27,410. The amount of services paid to MuniFinancial in the past 12 months for all city work is $ 274,295. Best Best & Krieger original Agreement was not to exceed $60,000 for six districts ($10,000 for each district) and the Amendment is not to exceed $20,000 ($10,000 for each district). The amount paid to Best Best & Krieger for legal counsel services in the past 12 months is $15,579. Attachment 1. Agreement with MuniFinancial, LLC 2. Agreement with Best Best and Krieger, LLP J:\Engineer\aGENDALA 113-Annexation to CFD 97-2.doc ATTACHMENT 1 Parties and Recital Page(s) Agreement between City of Chula Vista and Mu~iFi~ancial For Special Tax Consultant Services for the Formation of Maintenance Co~m,~nity Facilities Districts within the City Of Chula Vista Pursuant to the Mello-Roos Community Facilities Act of 1982 This agreement ("Agreement") , dated 6tmC6~ I ~ for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is between the City-related entity as is indicated on EYZuibit A, paragraph 2, as such {"City"), whose business form is set forth on Exhibit A, paragraph 3, and MuniFinancial the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 {"Consultant"), and is made with reference to the following facts: Recitals Whereas, staff prepared and issued a Request for Proposals (RFP) in November 2001 with the intent to negotiate separate contracts for each of the proposed Community Facilities District (CFD) within Eastlake II! Woods & Vistas, McMillin Company Village 6, Otay Ranch Village 6, Brookfield-Shea-Otay Village 11, Village 12 Freeway Commercial and Eastlake Land Swap Parcel; and, Whereas, a total of three {3) proposals were received and reviewed by the City's consultant selection committee in January 2002; and, WHEREAS, the City's consultant selection committee made their final recommendation in late January 2002; and, WHEREAS, the firm MuniFinancial was recommended as the consultant to be awarded the contract to provide special tax consultant services for the formation of maintenance districts within Eastlake III Woods & Vistas, McMillin Company Village 6, Otay Ranch Village 6, Brookfield-Shea-Otay Village 11, Village 12 Freeway Commercial and Eastlake Land Swap Parcel; and Standard Form Two Party Agreement Fourteenth Revision) Page 1 WHEREAS, City staff had determined the proposal to be responsible and has negotiated an agreement based on the proposal; and, Whereas, Consultant wa~ran-ts and represents that they are experienced and staffed in a manner such that they are and can 'prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) Standard Form Two Party Agreement (Fourteenth Revision) Page 2 Obligatory Provisions Pages NOW, TH]EREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled , Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services" Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. Standard Form Two Party Agreement (Fourteenth Revision) Page 3 E. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Addi~lonal Services, shall perform in a manner consistent with that level of care and skill ordinarily ~xercised by members Of the profession currently practicing under similar conditions and in similar locations. F. Insurance ~ Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 9. Commercial Genezal Liability Insurance including Business Automobile Insurance Coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City in the same manner as members of the general public ("Cross-liability Coverage,,). Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omissions coverage is included in the General Liability policy. G. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required. Standard Form Two Party Agreement (Fourteenth Revision) Page 4 In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shal~ be reviewed and approved by the Risk Manager. Security for Performance. (1) Performance Bond. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. (2) Letter of Credit. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A. (3) Other Security In the event that Exhibit A, ,at Paragraph 19, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security,,), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. I. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. Standard Form Two Party Agreement (Fourteenth Revision) Page 5 2. Duties of the City A. Consultation and Coqper_ation City shall regularly consult the Consultant for the purpose of ~eviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to.achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these materials beyond 30 days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph tl, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 19 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. Ail billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable there under is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 18 (C) to be charged upon making such payment. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 13, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. Standard Form Two Party Agreement (Fourteenth Revision) Page 6 5. Licfuidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 14. It is acknowledged by both parties that time is of the essence 'in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgraent to arrive at a reasOnable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate"). Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests. Standard Form Two Party Agreement Fourteenth Revision) Page 7 Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the- term is used in the regulations promulgated by the Fair Political Practices Commission, and has 'determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement Which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant wilt immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's, which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated there under. F. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 15. Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or Standard Form Two Party Agreement (Fourteenth Revision) Page 8 for 12 months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or -for-any third party, whiCh may be in conflict with Consultant's responsibilities under this Agreement, ~xcept with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Consultant, and Consultant's employees, subcontractors or other persons, agencies or firms for whom Consultant is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. With respect to losses arising from Consultant's professional errors or omissions, Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys fees) except for those claims arising from the negligence or willful misconduct of City, its officers or employees. Consultant's indemnification shall include any and all costs, expenses, 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. Consultant,s obligations under this Section shall not be limited by any prior or subsequent declaration by the Consultant. Consultant's obligations under this Section shall survive the termination of this Agreement. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant,s obligations under this Standard Form Two Party Agreement (Fourteenth Revision) Page 9 Agreement, or if Consultant 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 Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant 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 the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) 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, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants". Standard Form Two Party Agreement (Fourteenth Revision) Page 10 12. Ownership, Publication, Reproduction and Use of Material Ail 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 pmblish, 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. Any reuse by City on any project other than the project for which such materials were originally intended shall be at the City's sole risk. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant,s work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Standard Form Two Party Agreement (Fourteenth Revision) Page 11 Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the te-~ms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing par~y Shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices Ail notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement Standard Form Two Party Agreement (Fourteenth Revision) Page 12 This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreemen~ nor any provision.hereof may be amended, modified, waived or discharged except by an instrument in 'writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. 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. [end of page. next page is signature page.] Standard Form Two Party Agreement Fourteenth Revision) Page 13 Signature Page to Agreement between City of Chula Vista and ~uni~inancial For Special Tax Consultant Services for the Formation of Maintenance Community Facilities Districts within the City Of Chula Vista Pursuant to the Mello-Roos Community Facilities Act of 1982 IN WITNESS W~EREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ~0~ I~, 200~.' City of Chula Vista Attest: Susan Bigelow, Cit~ Clerk Approved as to form: M. Kahe~ City Attorney Dated: by: Shirley Mayor MuniFinancial President 9aul Whitelaw, Vice President Exhibit List to Agreement ( ) Exhibit A. Standard Form 1~wo Party Agreement (Fourteenth Revision) Page 14 Exhibit A to Agreemerr~ between City of Chula Vista and MuniFinancial 1. Effective Date of Agreement:~~ ~! ~-~ 2. City-Related Entity: (x) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California Industrial Development Authority of the City of Chula Vista, a Other: [insert business form] a ("City") 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: MuniFinancial Business () () (x) Form of Consultant: Sole Proprietorship Partnership Corporation Place of Business, Telephone and Fax Number of Consultant: 28765 Single Oak Drive, Suite 200 Temecula, California 92590 Voice Phone (909) 699-3990 Fax Phone (909) 699-3460 Standard Form Two Party Agreement (Fourteenth Revision) Page 15 7. General Duties: Eastlake III Woods & Vistas project. The Project consisting of 2,061 residential dwelling units and 454.1 acres of non- residential areas. ThE p~oposed district would finance the maintenance of open space lots totaling 136.7 acres, naturalized drainage channels, parkways and medians on arterial roadways, extended detention basins, in-line storm water treatment units, and other miscellaneous improvements. McMillin ComDany Villaqe 6 Droject. The Project consists of 694 residential dwelling units (482 SF and 212 MF). The proposed district would finance the maintenance of: open space lots totaling 11.3 acres, parkways and medians of arterial and collector streets, portions of two pedestrian bridges, a portion of a major flood control channel, a portion of a regional detention basin and, possibly, storm water quality facilities which may include in-line storm water treatment units. f o Ota¥ Ranch ComDan¥ Villaqe 6 project. The Project consists of 1392 residential dwelling units (401 SF and 991 MF), 26 acres of non-commercial developed areas. The proposed district would finance the maintenance of: open space lots totaling 9.5 acres, parkways and medians of arterial and collector streets, portions of two pedestrian bridges, a portion of a major flood control channel, a portion of a regional detention basin and, possibly, storm water quality facilities which may include in-line storm water treatment units. Brookfield-Shea-Ota¥ Villaqe 11 Droject. The Project consists of 974 single-family residential dwelling units, 1193 MF Units, 115 Mixed Uses (10 acres). The proposed district would finance the maintenance of: open space lots totaling 53.0 acres, parkways and medians of arterial and collector streets, offsite detention basins, storm water quality facilities, and monitoring/maintenance erosion protection drop structures. The District would also be responsible for trail and path maintenance including pedestrian lighting and pedestrian.bridge maintenance. Villaqe 12 Freeway Commercial. The Project consists of 10~ acres of commercial uses. ~The proposed CFD would finance the maintenance of parkways, and medians a=leng Olympic-Parkway. Eastlake Land Swap Parcel. The Project consists of 65.0 acres Residential Dwelling Units and 50.7 acres of freeway commercial. The proposed CFD would finance the maintenance Standard. Form Two Party Agreement (Fourteenth Revision) Page 16 of parkways and medians along Olympic Parkway and Eastlake Parkway. Please note that the fi-rst--four CFDs described above, will incorporate the land uses proposed in the applicable Tentative Maps. ~-fFh~last two CFDs described above would not have Tentative Maps entitlements. The City will only pursue at this time, the formation of "Interim" CFDs, which will be based on gross acreage of the proposed land uses within the project. 8. Scope of Work and Schedule: A. Detailed scope of Work: Task 1 Preliminary A~alysis: Data collection. The consultant will collect data to describe the parcels to be included in each of the CFD, land use and zoning information, and proposed development information, which will describe the proposed land uses in these six new developments. The consultant will review and provide a description of all the maintenance improvements to be funded and review the maintenance cost estimate of the improvements. A detailed description of each improvement will be provided based on the preliminary and/or final landscape and engineering plans available. Where no plans exist the consultant will work with the City and Developer to adequately describe the improvements for inclusion in the preliminary report. A detailed review of the maintenance cost estimate for each improvement will be conducted by the Consultant based on preliminary estimate provided by the City and Developer. do A map or descriptive diagram will be prepared by the Consultant for each improvement to be funded. The map or diagram will show the area of benefit of each improvement. Utilizing the information collected in work task a through d above, the consultant will prepare a maximum special tax rate and method of apportionment to apply to property in an undeveloped and developed state. Standard Form Two Party Agreement (Fourteenth Revision) Page 17 Task 2 District Formations: a o This task requires the consultant to use the information compiled in the prqlim~nary analysis of Task 1, to assist the City to assure compliance with the formation procedures pursuant to the Mello-Roos Community Facilities Act of 1982. The project team will work closely with the City staff, legal counsel, and the developer to insure that all elements of the project meet the requirements of the Act and are performed in a timely manner. The Consultant shall provide written documentation to the City of all issues, meetings, project progress and decisions. The Consultant shall be proactive in identifying issues that impact the project schedule. Once an engineering issue, a policy decision, a financing decision or other issues are identified, the Consultant shall immediately propose an action plan and communicate possible solutions to all responsible parties and follow through on required actions. Task 3 Meetings: There will be regular staff and developer and City Council meetings on an as needed basis to be held throughout the proposed project schedule. B. Date for Commencement of Consultant Services: ( ) Same as Effective Date of Agreement (X) Other: Written notice of authorization to proceed from the City_ Dates or Time Limits Deliverable No.l: for Delivery of Deliverables: Submit preliminary analysis including a summary of all data collected and cost information from Task 1, a through d within three weeks Deliverable No.2: Standard Form Two Party Agreement Submit a CFD Public Report, including the full description of the district's facilities, improvement zones, final cost estimate, the RMA, the annual maximum special tax rates based on the final budget and (Fourteenth Revision) Page 18 Deliverable No.3: development category will be written. Consultant will prepare the agenda statement for the Notice of Intention to Form the District within thirty -days after the Deliverable No. 1 is accepted by the City. Prepare petition and determine registered voter status and prepare council agenda statement for the formation and final "Special Tax Report", special tax ballot and prepare and advertise Notice of public hearing. All ballots and notices will be reviewed by the City's special counsel for the project. Deliverable is due within thirty days after Deliverable No. 1 is accepted by the City. Deliverable No.4 Deliver conformed copies of all recorded documents, and maps. Deliver all final data, information, boundary maps, and any other material produced under this agreement in computer digital files compatible with the software utilized by the City. Spreadsheets shall be compatible with Microsoft Excel, and Access, word processing files with WordPerfect, and graphic files with AutoCAD. Date for completion of all Consultant services: Four months after the notice to proceed letter' Insurance Requirements: (X) Statutory Worker,s Compensation Insurance ( ) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance: $1,000,000. (X) Auto Liability Insurance: $1,000,000. (x) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). ( ) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). (X) Professional Liability Insurance: Standard Form Two Party Agreement (Fourteenth Revision) Page 19 10. Per Claim: $1,000,000 Aggregate: $1,000,000 Materials required to be supplied by City to Consultant: no Make 'available maps, records, plans, and any documentation required for preparation of the Special Tax Report, including estimated cost of maintenance of the improvements to be included in the district. This documentation would be provided by the developers of the projects under consideration or City staff as appropriate. Retain a qualified legal counsel to provide guidance during district formation proceedings. C. Schedule and agendize project meetings, Council meetings and hearings as required by the Government Code. 11. Compensation: A. (X) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $ 17,200 for Eastlake III Woods & Vistas $ 16,450 for McMillin Village 6 $ 16,450 for Otay Ranch Village 6 $ 16,450 for Brookfield-shea-Otay Village 11 $ 14,310 for Village 12 Freeway Commercial $ 14,685 for Eastlake Land Swap Parcel Payable as follows for each CFD: Milestone or Event or Deliverable Amount or Percent of Fixed Fee Deliverable No.1 Deliverable No.2 Deliverable No.3 Deliverable No.4 25% 25% 25% 25% ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation Standard Form Two Party Agreement Fourteenth Revision) Page 20 due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as- interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase t. $ 2. $ $ Standard Form Two Party Agreement (Fourteenth Revision) Page 21 { ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only t-he compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered, discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has b~en provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. ( ) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (i) ( ) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Sez-vices herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement Standard Form Two Party Agreement (Fourteenth Revision) Page 22 At such time as Consultant shall have incurred time and materials equal to ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing-and-approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant,s own cost and expense. Rate Schedule Category of Employee of Consultant Hourly Name Rate Title Hourly Rate Division Manager $180 Principal Consultant 145 Senior Project Manager 125 Project Manager 105 !Senior Analyst 85 Analyst 75 Analyst Assistant 65 Property Owner Services Rep 50 Support Staff 45 ( ) Hourly rates may increase by 6% for services rendered after [month], 19 , if delay in providing services is caused by City. 12. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (X) None, the compensation includes all costs. ( ) Reports, not to exceed $ ( ) Copies, not to exceed $ ( ) Travel, not to exceed $ ( ) Printing, not to exceed S Cost or Rate Standard Form Two Party Agreement (Fourteenth Revision) Page 23 Postage, not to exceed $ : Delivery, not to exceed $ Long Distance Telephone Charges, not to exceed $ Other Actual Identifiable Direct Costs: , not to exceed $ , not to exceed $ : 13. Contract Administrators: City: Sohaib A1-Agha, Senior Civil Engineer Consultant: Lyn Gruber, Principal Consultant 14. Liquidated Damages Rate: N/A ( ) $__ per day. ( ) Other: 15. Statement of Economic Interests, Categories, per Conflict of Interest Code: Consultant Reporting ( ) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer Category No. 1. Investments and sources of income. Category No. 2. Interests in real property. Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated Standard Form Two Party Agreement (Fourteenth Revision) Page 24 employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No. 7. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 16. ( ) Consultant is Real Estate Broker and/or Salesman 17. Permitted Subconsultants: NONE 18 Bill Processing: A. Consultant's Billing to be submitted for the following period of time: ( ) Monthly ( ) Quarterly ( X ) Other:_Based on Deliverables of ParaqraDh 11 Day of the Period for submission Billing: ) First of the Month ) 15th Day of each Month ) End of the Month ) Other: of Consultant's 19 C. City's Account Number: Security for Performance Will be assigned for each CFD ( ) (x) Performance Bond, $ Letter of Credit, $ Other Security: Type: Amount: $ Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant Standard Form Two Party Agreement Fourteenth Revision) Page 25 sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: (X) Retention Percentage: 10 % ( ) Retention Amount: $ Retention Release Event: Completion of Ail Consultant Services Other: Standard Form Two Party Agreement (Fourteenth Revision) Page 26 ATTACHMENT 2 Parties and ReciSal Page(s) Agreement between City of Chula Vista and Best Best ~Krieger LLP For Special Counsel Legal Services for the Formation of Maintenance Community Facilities Districts within the City of Chula Vista Pursuant to the Mello-Roos Community Facilities Act of 1982 This agreement ("Agreement"), dated ~16~/C~ /~, 2%~mm_ for the purposes of reference only, and effective as of ~he date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, paragraph 3, and Best Best & Krieger LLP the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, the City desires to initiate proceedings pursuant to the Mello-Rocs Community Facilities Act of 1982 and the City of Chu!a Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, E and 7 of Article XI of the Constitution of the State of California to form one or more community facilities districts for the purpose of providing for the financing of the costs of maintenance of certain landscaping and other improvements required to serve certain new development, as described in Exhibit A, paragraph 7 within the City; and, Whereas, the City desires to retain the services of special counsel to assist and advise the City regarding the proceedings to form such community facilities lstrlcts and the ongoing administration of such community facilities districts; and, Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City Standard Form Two Party Agreement (Fourteenth Revision) Page 1 within the time frames herein provided all in accordance with the terms and conditions of this Agreement; and, (End of Recitals. Next Page starts Obligatory Provisions.) Standard Form Two Party Agreement (Fourteenth Revision) Page 2 Obligatory Provisions Pages NOW, ~r~REFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultant,s Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled . Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services,,. Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services,,), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Standard Form Two Party Agreement (Fourteenth Revision) Page 3 Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, 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. F. Insurance Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: Statutory Worker's Compensation Liability Insurance coverage in the attached Exhibit A, Paragraph 9. Insurance and Employer's amount set forth in the Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City in the same manner as members of the general public ("Cross-liability Coverage"). Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omissions coverage is included in the General Liability policy. G. .Proof of Insurance Coverage. (!) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Standard Form Two Party Agreement (Fourteenth Revision) Page 4 Consultant shall deliver demonstrating same, which Risk Manager. a policy endorsement to the City shall be reviewed and approved by the Security for Performance. (1) Performance Bond. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager or City Attorne~ which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. (2) Letter of Credit. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit" in said Paragraph 19, Exhibit A. ' (3) Other Security In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security',), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. I. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. Standard Form Two Party Agreement (Fourteenth Revision) Page 5 2. Duties of the City A. Consultation and Cooperation City shall regularly consul~the Consultant for. the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these materials beyond 30 days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 19 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. Ail billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable the reunder is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 18 (C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph ~3, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term. This Agreement shall terminate when the Parties have complied with all executory provisions hereof. 5. Liquidated Damages Standard Form Two Party Agreement (Fourteenth Revision) Page 6 The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 14. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in performance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate"). Time extensions for delays beyond the consultant,s control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the ex?iration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant,, for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate. Regardless of whether C~nsultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. Search to Determine Economic Interests. Standard Form Two Party Agreement (Fourteenth Revision) Page 7 Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant,s economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's, which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated there under. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 15. Consultant further warrants and represents that no promise of future employ~nent, remuneration, consideration, gratuity .or other reward or gain has been made to Consultant or Consultant A~sociates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of City. Standard Form Two Party Agreement (Fourteenth Revision) Page 8 Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party, which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permissi~Dn of City. Hold Harmless 1. Indemnification and Hold Harmless Agreement. With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Consultant, or Consultant's employees, agents, and officers, arising out of any services performed involving this project, except liability for Professional Services covered under Section X.2, the Consultant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. The Consultant,s duty to indemnify, protect and hold haz-mless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligation and duties under Section Exhibit A to this Agreement. 2. Indemnification for Professional Services. As to the Consultant,s professional obligation, work or services involving this Project, the Consultant agrees to indemnify, defend and hold harmless the City, its agents, officers and employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, losses or payments for injuz~z to any person or property, caused directly or indirectly from the negligent acts, errors or omissions of the Consultant or Consultant's employees, agents or officers; provided, however, that the Consultant's duty to indemnify shall not include any claims or liability arising from the negligence or willful misconduct of the City, its agents, officers and employees. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate'any of the covenants, Standard Form Two Party Agreement (Fourteenth Revision) Page 9 agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, alli~inished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant 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 the amounts payable hereunder, and less any damages caused City by Consultant's breach. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) 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, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants". Standard Form Two Party Agreement (Fourteenth Revision) Page 10 12. Ownership, Publication, Reproduction and Use of Material Ail 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. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant,s agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker,s compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully s~t forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Standard Form Two Party Agreement (Fourteenth Revision) Page 11 Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees - an~ court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices Ail notices, demands or requests provided for or permitted to be given pursuant to this Agreement .must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be Standard Form Two Party Agreement (Fourteenth Revision) Page 12 amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties- Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. 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. [end of page. next page is signature page.] Standard Form Two Party Agreement (Fourteenth Revision) Page 13 Signature Page to Agreement between City of Chula Vista and Best Best & Krieger LLP For Special Counsel Leg~ Services for the Formation of Maintenance Community Facilities Districts within the City of Chula Vista Pursuant to the Mello-Roos Cc ....... unity Facilities Act of 1982 IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: , 19 Attest: Susan Bigelow, City Clerk ~M. Kaheny:~ity' Attorney Dated: ~. ~0%_ City of Chula Vista Shirleyporton, Mayor Best Best & Krieger LLP Warren Diven, Of Counsel Exhibit List to Agreement ( ) Exhibit A. Standard Form Two Party Agreement (Fourteenth Revision) Page 14 Exhibit A to Agreement between City 6f Chula Vista and Best Best and Krieger 1. Effective Date of Agreement: 2. City-Related Entity: (x) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a Other: [insert business form] ("City") 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: Best Best & Krieger LLP Business Form of Consultant: ( ) Sole Proprietorship (X) Partnership ( ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 402 West Broadway, 13~h Floor San Diego, California 92101-3542 Voice Phone (619) 525-1300 general 619) 525=t337 Warren Diven Fax Phone (619) 233-6118 Standard Form Two Party Agreement Fourteenth Revision) Page 15 7. General Duties: Consultant shall provide special counsel legal services to the City pertaining to the formation of community facilities districts; Eastlake II} Wc~ds & Vistas project, McMillin Village 6 project, Otay Ranch Village 6 project, Brookfield- Shea-Otay Village 1t project, Village 12 Freeway Commercial project, and Eastlake Land Swap Parcel project ("Community Facilities Districts'') to finance the maintenance of landscaping and other improvements and, on an as needed basis, pertaining to the ongoing administration of Community Facilities Districts formed for such purposes. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Formation of Community Facilities Districts. Consultant shall provide the following legal services to the City pertaining to the formation of each Community Facilities District: Preparation of all resolutions, notices, contracts, and other papers and documents required in the formation proceedings; Advise the City staff and other consultants regarding the required formation procedures and examine the formation proceedings, step by step, as such procedures are undertaken; Appear at all hearings required as a part of the formation proceedings, and attend any other meeting where attendance is required or requested Review the Report of the Special Tax Consultant as it relates to the formation proceedings for each community facilities district; Review and examine the map showing the area and boundaries of each community facilities district; Review the method and formula utilized by the Special Tax Consultant for the apportionment and le%ry of the special tax within each community facilities district; Standard Form Two Party Agreement Fourteenth Revision) Page 16 Assist in any election procedure, as necessary and/or required, including the preparation of the form of all required election documents; Prepare the N©ti~e of Special Tax Lien for each community facilities district; o Provide instruction and advice to City staff and City consultants related to any of the foregoing; and 10. Provide any and all other customary special counsel services relating to the formation proceedings. Onqoinq Administration of Community Facilities Districts In addition to the foregoing services pertaining to the formation of the community facilities districts, Consultant shall provide the following additional special counsel services to the City related to the ongoing administration of each of the community facilities districts: Advise and assist City staff and City consultants regarding: (a.) Calculation of annual special tax rate and levy of annual special tax; (b.) Interpretation and application of special tax formula; (c.) Annexation of territory to a community facilities district; apportionment of special taxes or authorized maintenance; (d.) Cancellation or cessation of the Notice of Special Tax Lien; and (e.) Other issues related to the ongoing administration of the community facilities districts and the levy of special taxes. Preparation of resolutions, other papers and documents of the foregoing. notices, contracts, and required related to any Appear at all City Council meetings related to any of the foregoing and attend any other meeting with city staff and City consultants related to any of the foregoing where attendance is required or requested by the City. Standard Form Two Party Agreement (Fourteenth Revision) Page 17 Provide any and all other customary special counsel services relating to the ongoing administration of such community facilities districts. Such legal ser~ice~ pertaining to the ongoing administration of the community facilities districts would be provided only on an "as needed" basis upon the request of the City. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: N/A Deliverable No. 2: N/A Deliverable No. 3: N/A D. Date for completion of all Consultant services: N/A 9. Insurance Requirements: ( Statutory Worker's Compensation Insurance Employer's Liability Insurance coverage: $1,000,000. Commercial General Liability Insurance: $1,000,000. Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 10. Materials required to be supplied by City to Consultant:' Such documents as are contemplated in the detailed scope of work set forth above. 11. Compensation: A. ( ) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the Standard Form Two Party Agreement (Fourteenth Revision) Page 18 amounts and at the times or milestones or for the Deliverables se~ forth below: Single Fixed Fee Amount: follows: payable as Milestone or Event or Deliverable Amount or Percent of Fixed Fee ( ) !. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly, advances shall not convert this agreement to a time and materials basis of payment. B. ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not-commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City Standard Form Two Party Agreement Fourteenth Revision) Page 19 shall Phase. Phase 1. 2. 3. have issued a notice to proceed to Consultant as to said Fee for Said Phase $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily ~ompleted, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been pr6vided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (x) Hourly Rate Arrangement For performance of the Defined Services. by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: Standard Form Two Party Agreement (Fourteenth Revision) Page 20 (!) ( ) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in ~xcess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) ( X ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $10,000 as to each community facilities district (The "Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Rate Schedule Category of Employee of Consultant Name Hourly Rate Partners and Of Counsel Attorneys Warren Diven $195 and Various Others Senior Associates with 4 or more years of experience Various $170 Junior Associates with 4 or less years of experience Various $140 Paralegals Various $105 Law clerks Various I $70 ) Hourly rates may increase by 6% for services rendered after [month], 19 , if delay in providing services is caused by City. 12. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: ( ) None, the compensation includes all costs. Standard Form Two Party Agreement (Fourteenth Revision) Page 21 Cost or Rate ( ) Reports, not to exceed $ : (X) Copies, not to exceed Consultant's current~rate (X) Travel, not to exceed IRS Rate ( ) Printing, not to exceed $ : (X) Postage, not to exceed Actual Cost (X) Delivery, not to exceed Actual Cost ( ) Long Distance Telephone Charges, not to exceed $ (X) Other Actual Identifiable Direct Costs: Facsimile, not to exceed Consultant's current rate 13. Contract Administrators: City: Sohaib Al- Agha, Senior Civil Engineer Consultant: Warren Diven Best Best & Krieger LLP 402 West Broadway, 13~h Floor San Diego, California 92101-3542 Telephone: (619)525-1337 Fax: (619)233-6118 E-mail: wbdiven@bbklaw.com 14. Liquidated Damages Rate: N/A ( ) $ per day. ( ) Other: 15. Statement of Economic Interests, Categories, per Conflict of Interest Code: Not Applicable. Not an FPPC Filer. (x) ( ) Consultant Reporting FPPC Filer ) Category No. 1. Investments and sources of income. ) Category No. 2. Interests in real property. ) Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. Standard Form Two Party Agreement (Fourteenth Revision) Page 22 Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency)' to provide services, supplies, materials, machinery or equipment. Category No. 6. Investments in business entities and sources of income of the type which, .within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. Category No. ?. Business positions. ( ) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: ( ) Consultant is Real Estate Broker and/or Salesman Permitted Subconsultants: N/A 18 Bill Processing: A. Consultant's Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: Day of the Period for submission of Consultant,s Billing: ( ) First of the Month ( ) 15th Day of each Month Standard Form Two Party Agreement (Fourteenth Revision) Page 23 19 (X) End of the Month ( ) Other: C. City's Account Number: Security for Performance (Not Applicable) Performance Bond, $ Letter of Credit, $ Other Security: Type: Amount: $ Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount,, until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: Standard Form Two Party Agreement (Fourteenth Revision) Page 24 RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH MUNIFINANCIAL, LLC FOR THE SPECIAL TAX CONSULTANT SERVICES REQUIRED FOR THE ANNEXATION OF VILLAGE 6 AND VILLAGE 11 TO IMPROVEMENT AREA A OF THE EXISTING OTAY RANCH PRESERVE MAINTENANCE DISTRICT (CFD 97-2), AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, MuniFinancial, LLC, pursuant to an agreement approved by City Council Resolution No. 2002-062, has been providing special tax consultant services, necessary for the formation of many Maintenance Community Facilities Districts within the City of Chula Vista; and WHEREAS, the scope of their services included in the original agreement was to provide special tax services for the formation of Maintenance Community Facilities Districts for Eastlake III Woods & Vistas, McMillin Company Village 6, Otay Ranch Village 6, Brookfield-Shea-Otay Village 11, Village 12 Freeway Commercial and Eastlake Land Swap Parcel, pursuant to the "Mello- Roos Community Facilities Act of 1982"; and WHEREAS, staff is recommending that the consultant's agreements be amended to enable the consultant to continue to provide needed services for the required mmexation of Villages 6 and 11 to hnprovement Area A of CFD 97-2. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista, does hereby approve a First Amendment to the Agreement with MuniFinancial, LLC for Special Tax Consultant Services required for the annexation of Village 6 and Village 11 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97-2), 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 and directed to execute said amendment on behalf of the City. Presented by: Approved as to form by: John P. Lippitt Director of Public Works Joh~l~TI~'heny City Attorney 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 Oq~. Kaheny O' City Attorney Dated: FIRST AMENDMENT TO AGREEMENT WITH MUNIFINICIAL, LLC FOR THE SPECIAL TAX CONSULTANT SERVICES REQUIRES FOR THE ANNEXATION OF VILLAGE 6 AND VILLAGE 11 TO IMPROVEMENT AREA A OF THE EXISTING OTAY RANCH PRESERVE MAINTENANCE DISTRICT (CFD 97-2) FIRST AMENDMENT TO the Agreement between the City of Chula Vista and MuniFinancial For Special Tax Consultant Services for the Formation of Maintenance Community Facilities District within the City of Chula Vista Pursuant to the Mello-Roos Community Facilities Act of 1982 Recitals This First Amendment ("First Amendment") is entered into effective as of November, 2002 by and between the City of Chula Vista ("City") and MuniFinancial, ("MuniFinancial"), with reference to the following facts: WHEREAS, The City Council on March 12, 2002 approved the Agreement "Original Agreement" with MuniFinancial, a California Corporation for Special Tax Consultant Services for the Formation of Maintenance Community Facilities Districts by Resolution No. 2002-062. WHEREAS, MuniFinancial has been providing Special Tax Consulting services for many Maintenance Community Districts within the new eastern areas of Chula Vista; and WHEREAS, City determined additional work beyond the original Scope of Work would be necessary to complete the Community Facilities District Formations; and WHEREAS, the parties negotiated a new Scope of Work; and WHEREAS, the parties now desire to amend the Agreement to expand the Scope of Work required of MuniFinancial to provide Special Tax Consultant Services for the annexation of Village 6 and Village 11 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97-2), and NOW, THEREFORE, in consideration of the recitals and the mutual obligation of the parties set forth herein, City and MuniFinancial agree as follows: Exhibit A, Section 7 of the Original Agreement, entitled General Duties, is hereby amended to read as follows: Delete paragraph e and replace with the following: e. Village 12 Freeway Commercial. The Project consists of 106 acres of commercial uses. Two CFDs would finance the maintenance of parkways, medians and other public facilities. MuniFinancial Page l of 3 City of Chula Vista, Amendment Ii. III. Add new paragraph g to read as follows: g. Village 6 and Village 11. The project consists of the annexation of Village 6 and 11 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District ( CFD 9 7-2). T he C FD would finance the maintenance of parkways, medians and other public facilities. C. Delete the last paragraph of Section 7 of the Original Agreement, which reads as follows: "The last two CFDs described above would not have Tentative Maps entitlements. The City will only pursue at this time, the formation of "Interim" CFDs, which will be based on gross acreage of the proposed land uses within the project." Exhibit A, Section 1 lA of the original Agreement, entitled Compensation, Single Fixed Fee Arrangement, Single Fixed Fee Arrangement, is hereby amended to read as follows: A. Delete the section entitled Single Fixed Fee Amount and replace it with the following: Single Fixed Fee Amount: $ 17,200.00 for Eastlake III Woods & Vistas $16 450.00 for McMillin Village 6 $16 450.00 for Otay Ranch Village 6 $16 450.00 for Brookfield-Shea-Otay Village 11 $13 960.00 for McMillin Village 12 Freeway Commercial $13 960.00 for Otay Ranch Village 12 Freeway Commemial $14 685.00 for Eastlake Land Swap Parcel $ 6,900.00 for annexation of Village 6 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97~2) $ 6,900.00 for annexation of Village 11 Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97-2) All other terms and conditions of the Original Agreement not modified by this First Amendment remain in full force and effect. (End of Page, Next Page is a Signature Page) MuniFinancial Page 2 of 3 City of Chula Vista, Amendment SIGNATURE PAGE TO FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA City of Chula Vista MuniFinancial By Shirley Horton, Mayor Michael McNamara, Vice President ' Paul Whitelaw, Vice President ATTEST: Susan Bigelow, City Clerk Approved in form by: John M. Kaheny, City Attorney MuniFinancial Page 3 of 3 City of Chula Vista, Amendment RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FIRST AMENDMENT TO THE AGREEMENT WITH BEST, BEST AND KRIEGER, LLP, FOR THE SPECIAL TAX LEGAL COUNSEL SERVICES REQUIRED FOR THE ANNEXATION OF VILLAGE 6 AND VILLAGE 11 TO IMPROVEMENT AREA A OF THE EXISTING OTAY RANCH PRESERVE MAINTENANCE DISTRICT (CFD 97-2), AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, Best, Best and Krieger, pursuant to an agreement approved by City Council Resolution No. 2002-063, has been providing special tax legal counsel services, necessary for the formation of many Maintenance Community Facilities Districts within the City of Chula Vista; and WHEREAS, the scope of their services included in the original agreement was to provide special tax legal counsel services for the formation of Maintenance Community Facilities Districts for Eastlake III Woods & Vistas, McMillin Company Village 6, Otay Ranch Village 6, Brookfield- Shea-Otay Village 11, Village 12 Freeway Commercial and Eastlake Land Swap Parcel, pursuant to the "Mello-Roos Community Facilities Act of 1982"; and WHEREAS, staff is recommending that the consultant's agreements be amended to enable the consultant to continue to provide needed services for the required annexation of Villages 6 and I 1 to improvement Area A of CFD 97-2. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista, does hereby approve a First Amendment to the Agreement with Best, Best and Krieger, LLP for Special Tax Legal Counsel Services required for the annexation of Village 6 and Village 11 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97-2), 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 and directed to execute said amendment on behalf of the City. Presented by: Approved as to form by: John P. Lippitt Director of Public Works J:\Attorney\reso\BBK 1'~ amendment John 1~ ?K~a'h c~y City Attorney 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 //~ol~fi' M. Kah~ny~~ City Attorney Dated: FIRST AMENDMENT TO AGREEMENT WITH BEST, BEST AND KRIEGER LLP FOR THE SPECIAL TAX LEGAL COUNSEL SERVICES REQUIRED FOR THE ANNEXATION OF VILLAGE 6 AND VILLAGE 11 IMPROVEMENT AREA A OF THE EXISTING OTAY RANCH PRESERVE MAINTENANCE DISTRICT (CFD 97-2) FIRST AMENDMENT TO the Agreement between the City of Chula Vista and Best Best & Krieger, LLP For Special Counsel Legal Services for the Formation of Maintenance Community Facilities District within the City Of Chula Vista Pursuant to the Mello-Roos Community Facilities Act of 1982 Recitals This First Amendment ("First Amendment") is entered into effective as of October 2002 by and between the City of Chula Vista ("City") and Best Best & Krieger, LLP ( Best Best & Krieger "), with reference to the following facts: WHEREAS, The City Council on March 12, 2002 approved the Agreement "Original Agreement" with Best Best & Krieger, LLP for Special Counsel Legal Services for the Formation of Maintenance Community Facilities Districts by Resolution No. 2002-063. WHEREAS, Best Best & Krieger has assisted the City with the Legal Counsel for the formation of many Community Facility Districts; and WHEREAS, City determined additional work beyond the original Scope of Work would be necessary to complete the Community Facilities Districts Formations; and WHEREAS, the parties negotiated a new Scope of Work; and WHEREAS, the parties now desire to amend the Agreement to expand the Scope of Work required of Best Best & Krieger to provide Special Legal Counsel Services for the annexation of Village 6 and Village 11 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97~2), NOW, THEREFORE, in consideration of the recitals and the mutual obligation of the parties set forth herein, City and Best Best & Krieger agree as follows: Exhibit A, Section 7 of the original Agreement, entitled General Duties, is hereby amended to add the following: Consultant shall also provide special legal counsel services to the City pertaining to the Annexation of Village 6 and Village 11 to Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97-2), II. All other terms and conditions of the Original Agreement not modified by this First Amendment remain in full force and effect. C:\WINDOWS\TEMP\Best & Krieger Amendment I,doc Page I of 2 SIGNATURE PAGE TO FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND, BEST BEST & KRIEGER, LLP City of Chula Vista Best Best & Krieger, LLP By Shirley Horton, Mayor Warren Diven, of Counsel ATTEST: Susan Bigelow, City Clerk Approved in form by: John M. Kaheny, City Attorney C:\WINDOWS\TEMP\Best & Krieger Amendment I.doc Page 2 of 2 COUNCIL AGENDA STATEMENT Item C7~ Meeting Date: 11/19/02 ITEM TITLE: SUBMITTED BY: REVIEWED BY: Resolution Approving the Second Amendment to the Acquisition/Financing Agreement with McMillin Otay Ranch for Community Facilities District No. 97-3 (McMillin Otay Ranch SPA One) Director of Public Works.~ City Manager t/" tv' (4/Sths Vote: Yes __ No__X) On December 8, 1998, Council approved the Acquisition/Financing Agreement for Community Facilities District No. 97-3 (CFD 97-3). This agreement set forth the conditions and procedures for acquiring the McMillin Otay Ranch SPA One improvements from the developer. The proposed Second Amendment will provide the developer with the option to use proceeds t?om CFD 97-3 to satisfy performance obligations set fourth in thc Agreement fi)r Financing the Construction of Olympic Parkxvay and Related Roadway hnprovemcnts. RECOMMENDATION: Approve the Second Amendment to the Acquisition/Financing Agreement with McMillin Otay Ranch lbr Community Facilities District No. 97-3. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Exhibit "'1' presents the boundaries of the CFD which includes all parcels located within the Otay Ranch McMillin SPA One. Exhibit B outlines the improvements financed by the district to date. The approved Acquisition/Financing Agrecment allocates $4.7 million of the bond proceeds for constructing the Phase One and the Phase Two Olympic Parkway improvements. Recent cost estimates compiled by McGill Martin Sell', Inc. (Exhibit "2") have estimated the McMillin Phase One and Phase Two Olympic Parkway obligation at $4 million. The developer has requested that cost savings t?om Phase One and %vo be applied to the Phase Three obligation. Fhe first amendment to the Acquisition / Financing agreement, approved by Resolution 19422, ensured the consistency between the Acquisition / Financing agreement for CFD 97-3 and the Agreement for Financing the Construction ot'Olympic Parkway and Related Improvements. The proposed Second Amendment will authorize the disbursement nf funds from the Olympic Parkway ln~provemem Accokmt which exceed the McMillin's Fair Share obligation for constructing Phases 1 and 2 the Olympic Parkway Improvements, to be applied toward the McMillin's Fair Share of Phase 3, porsoant to the Olympic Parkway Agreement. Staff'has reviewed thc proposed amendment and recommends Council approval. FISCAL IM PACT: The developer will pay all costs and has deposited money to fund consultant costs, and City costs m accordance with thc approx ed Reimbursement Agreement. Exhibit I. CFD Boundary 2, hnprovements traded by CFD97-3 to date 3. Olympic Parkway Cost estimates prepared by McGill Martin Self; Inc. IA/lilt 0725-[0-CFD973 McMillin / Otay Ranch CFD No. 97-3 PLANNING AREA MAP .~ EXHIBIT Z Memorandum Date: September 11, 2002 To: Tom Adler, City Engineer, CCV Cc: Greg Mattson, Principal Plmmer, McGill Martin Self (MMS) From: John J. Niklarz, Associate Professional, MMS Subject: Olympic Parkway Phase III Costs (McMillin's Fair Share) MMS has pulled together bid sheets and contracts for Phase III Olympic Parkway from the Otay Ranch Company (ORC). With the information gathered, MMS has calculated McMillin's fair share in accordance with the Financing and Construction Agreement of Olympic Parkway. This fair share uses the total cost of Olympic Parkway Phase III obtained from ORC, adds a 15% contingency of which 25% of this total will be McMillin's fair share. This fair share uses the current contracts that were publicly bid, and would seem to be the most accurate estimate at this time. The fair share calcuIated at this time is in the mount of $1,000,753.96. PHASE III OLYMPIC PARKWAY COSTS COST Hard Construction Costs Sewer $ 118.444.00 Storm Drain $ 114 880.00 Dry Utilities $ 183.575.00 Surface improvements $ 1.084.769.00 Landscaping I $ 664 007.00 Wet Utilities $ 731.170.00 Sewer $ _7,148:00 ~ubtotal $ 2,903,993.00 Soft Costs Design Engineering $ 162.425.63 Field Staking $ 43.313.50 Dry Utility Consultant $ 5.507.25 Landscape Architect $ 66.400.70 CCV $ 34.632.26 Soils Engineering $ 102.140.00 Utility Fee . $ 50.45_4.00 Blueprints $ 5.345.00 Bonds $ 52.037.00 OWD Fees $ 54.500.00 Advertisinq $ 135.00 Subtotal $ 576,890.34 TOTAL COST* 15% CONTINGENCY $ 3,480,883.34 $ 522,'132.50 COST W/CONTINGENCY $ 4,003,0'15.84 MCMILLIN'S FAIR SHARE(25%) $ 1,000,753.96 * This Total includes all costs needed to construct Phase HI Olympic Parkway PHASE Ill COSTS OP eligible.xls MM S, 11/13/2002 PHASE I AND Il OLYMPIC PARKWAY COSTS(iNCLUDES PORTIONS OF EAST PALOMAR AND LA MEDIA) DESIGN ENGINEERING SOILS ENGINEERING PHASE I AND II OLYMPIC PARKWAY COSTS(INCLUDES PORTIONS OF EAST PALOMAR AND LA J~EDIA) CFD ELIGIBLE COSTS pROJECT PHASE I AND ~1 OLYMPIC PARKWAY COSTS(INCLUDES PORTIONS OF EAST PALOMAR AND LA MEDIA) NON ELIGIBLE CFD COSTS.~MCMILLINI TOTAL NON ELIGrBLE CFD-COSTS(MCMILLIN} TOTAL COSTS OF OLYMPIC PARKWAY mAY ~NCH RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SECOND AMENDMENT TO THE ACQUISITION/FINANCING AGREEMENT WITH McMILLIN OTAY RANCH FOR COMMUNITY FACILITIES DISTRICT NO. 97-3 (McMILLIN OTAY RANCH SPA ONE) AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT WHEREAS, on December 8, 1998, the City Council approved the Acquisition/Financing Agreement for Community Facilities District No. 97-3; and WHEREAS, this agreement set forth the conditions and procedures for acquiring the McMillin Otay Ranch SPA One improvements from the developer; and WHEREAS, the proposed Second Amendment will provide the developer with the option to use proceeds from CFD 97-3 to satisfy performance obligations set fourth in the Agreement for Financing the Construction of Olympic Parkway and Related Roadway Improvements. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve a Second Amendment to the Acquisition/Financing Agreement for Community Facilities District No. 97-3, 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 and directed to execute said Amendment on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Director of Public Works John M. Kaheny City Attorney J:',Attorncy\RESO\2nd Amend Acq-Fin Agmt CFD 97 3.doc 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 John M. Kaheny City Attorney Dated: Second Amendment to Acquisition/Financing Agreement by and between the City of Chula Vista, acting for and on behalf of itself and CFD No. 97-3 (Otay Ranch McMillin SPA One), and McMillin Otay Ranch, LLC. SECOND AMENDMENT TO ACQUISITION/FINANCING AGREEMENT THiS SECOND AMENDMENT TO ACQUISiTION/FINANCING AGREEMENT (the "Second Amendment") is made and entered into this day of ,2002, by and between the CITY OF CHULA VISTA, a charter city duly organized and validly existing under the Constitution and laws of the State of California ("City"), acting for and on behalf of itself and COMMUNITY FACILITIES DISTRICT NO. 97-3 (OTAY RANCH McMILLIN SPA ONE) (the "Community Facilities District") and McM1LL1N OTAY RANCH, LLC, a California limited liability company ("Developer"), to amend that certain ACQUISITION/FINANCING AGREEMENT made and entered into on the 15th day of December 1998, by and between the City and the Developer (the "Original Agreement"), as amended by that certain First Amendment to Acquisition/Financing Agreement made and entered into on the 20th day of April, 1999 by and between the City and Developer (the "First Amendment"). (The Original Agreement and First Amendment shall be referred to as the "Agreement"). RECITALS: WHEP,~EAS, the City and the Developer entered into the Agreement to establish the terms and conditions to provide, among other things, for the acquisition of Improvements by the City from the proceeds of Bonds (as defined in the Original Agreement); and WHEREAS, included among the Improvements authorized by the Agreement to be financed from that portion of the proceeds of such Bonds identified as the Reserved Portion (as defined in the Original Agreement) are the Olympic Parkway Offsite Improvements (as defined in the Original Agreement); and WHEREAS, the Agreement established specific terms and conditions pursuant to which acquisition of the Olympic Parkway Offsite Improvements may be paid for from the Reserved Portion; and WHEREAS, the City, the Developer and Otay Project, LLC ("Otay") have entered into that certain agreement entitled "Agreement for Financing the Construction of Olympic Parkway and Related Roadway Improvements" made as of ApriI 20, 1999 (the "Olympic Parkway Agreement") to establish terms and conditions pertaining to, among other things, the engineering, design and construction of certain roadway improvements including, but not limited to, the Phase 1 Olympic Parkway Improvements, the Phase 2 Olympic Parkway Improvements, the Phase 3 Olympic Parkway Improvements (each as defined in the Olympic Parkway Agreement), the securing of the completion of such improvements and the allocation of the cost of such improvements between the Developer and Otay; and WHEREAS, the City and the Developer desire to enter into this Second Amendment to allow for the satisfaction of the Developer's Phase 3 Deposit pursuant to the Olympic Parkway Agreement and funding of the Phase 3 Olympic Parkway Improvements with the proceeds of the Bonds and earnings thereon. NOW, THEREFORE, 1T 1S MUTUALLY AGREED BETWEEN THE RESPECTIVE PARTIES AS FOLLOWS: SECTION 1. Recitals. The foregoing recitals are true and correct. SECTION 2. Definitions. Except as otheiwvise provided for or indicated in this Second Amendment, the capitalized terms used in this Second Amendment shall have the meanings given such terms in the Agreement. SECTION 3. Amendments to Section 7.1 of the Agreement. (a) The following paragraph shall be added at the end of Section 7.1 (previously added to the Original Agreement pursuant to the First Amendment): "Notwithstanding anything in this Section 7.1 to the contrary, any earnings on the investments of funds on deposit in the Olympic Parkway Improvement Account and any excess amounts transferred from the Olympic Parkway Improvement Account due to a reduction in the Fair Share determined pursuant to the Olympic Parkway Agreement may be disbursed at the Developer's request to satisfy Developer's Phase 3 Deposit and fund the acquisition and/or construction of the Phase 3 Olympic Parkway Improvement in accordance with the Olympic Parkway Agreement." SECTION 4. Other Terms and Provisions of the Original Agreement to Remain in Effect. Except as expressly amended by this Second Amendment, all terms and provisions of the Agreement shall remain in full force and effect. [End of page. Next page is signature page.] 2 J:\Attorney'xANN\CFDs\97-3~2d Amend to CFI) 97-3 Acq-Fin Agmt. DOC NOV 13 'O2 15:28 TO-94095825 FROH- T-321 P~02/02 F-579 HXECUTED by and between the pa~ties hereto on the day and year first hereinabovc wH~c-m CITY OF CHULA VISTA ATTEST: MAYOR CITY OF CHULA VISTA STATE OF CALIFORNIA CITY CLERK CITY OF CHULA VISTA STATE OF CALIFORNIA APPROVED AS TO FORM: JOHN KAHENY, CITY ATTORNEY CiTY OF CHULA VISTA STATE OF CALIFORNIA "DEVELOPER" McMILLIN OTAY RANCH, LLC, a Delaware limited liability company By: McMILLIN COMPANIES, LLC, its 7/1/02 3 EXECUTED by and between the parties hereto on the day and year first hereinabove written. "CITY" CITY OF CHULA VISTA ATTEST: Shirley Horton, Mayor Susan Bigelow, City Clerk APPROVED AS TO FORM: John Kaheny, City Attorney "DEVELOPER" McMILLIN OTAY RANCH, LLC, a Delaware limited liability company By: McMILL1N COMPANIES, LLC, its managing member By: Name: Title: By: Name: Title: 3 J:\Altorney~ANN\CFDs\97-3\2d Amend to CFD 97-3 Acq~Fin Agmt. DOC ,9 COUNCIL AGENDA STATEMENT Item /0 Meeting D ate 11/19/02 ITEM TITLE: Resolution Approving first amendment to the agreement between the City of Chula Vista and San Diego Expressway Limited Partnership and agreement affecting real property and authorizing the Mayor to execute said amendment in behalf of the City. SUBMITTED BY: REVIEWED BY: Resolution Approving first amendment to the agreement between the City of Chula Vista, NNP-Trimark San Miguel Ranch and San Diego Expressway Limited Partnership regarding transfer of right- of-way for the construction and operation of the State Route 125 South Toll Road and authorizing the Mayor to execute said agreement on behalf o f the City. Director of Pnblic Works~ ~ City Manage~,~ (4/5ths Vote: __ No X ) The City has entered into two agreements relating to the construction of State Route 125 Toll Road. The first agreement was dated April 16, 2002 and was between the City and San Diego Expressway Limited Partnership (SDELP) to facilitate development of the SR-125 Toll Road facility within the geographic boundaries of the City. The second agreement, dated July 23, 2002, was between the City, NNP-Trimark San Miguel Ranch (Trimark) and SDELP regarding the transfer of right-of-way for the construction and operation of the SR-125 Toll Road facility. Both agreements specify that the escrow deadline is December 31, 2002 and that if that date is not met, the agreement is terminated. Due to certain actions outside the control of SDELP, that datc cannot be met and an amendment for both agreements needs to be approved in order to extend the date of termination. RECOMMENDATION: That the Council approve the resolutions approving the first amcndmcnts to the agreements between the City and: (1) San Diego Expressway Limited Partnership and agreement affecting real property; and (2) NNP-Trimark San Miguel Ranch and San Diego Expressway Limited Partnership regarding transfer of right-of-way fbr the construction and operation of the State Route 125 South Toll Road and authorizing the Mayor to execute both agreements BOARDS/COMMISSION: None. DISCUSSION: The SR-125 Toll Road is a major part of Chula Vista's Circulation element in our General Plan. It is crucial for the development of eastern Chula Vista that this facility be constructed in the next few years. Due to lack of regional funding, it is necessary that this freeway be constructed by a private entity and operate as a toll road. The IPacility will be constructed between the connector at San Miguel Road in Bonita to the SR-905 interchange in Otay Mesa. The connector between San Miguel Road and SR-54 will be paid for by SANDAG. The total cost for the toll road is $390 ~nillion. The connector and gap on SR-54, to be built by SDELP for SANDAG, Page 2, Item lO Meeting Date will cost another $140 million. The business plan of SDELP is based on the contribution of right-of-way through Chula Vista by the City and/or developers. The City and SDELP entered into a Toll Road Agreement dated April 16, 2002 regarding certain real property either currently owned by the City or offered for dedication. The City, SDELP and NNP-Trimark San Miguel Ranch entered into a Toll Road Agreement dated July 23, 2002 regarding certain real property currently owned by Trimark. Both agreements have conditions which provide, among other things, that close of escrow shall not occur until Toll Road Financing has closed and that SDELP is prepared to commence construction. Further, both agreements state that the Escrow shall terminate without closing if each of the conditions to the close of escrow has not been satisfied or waived on or before December 31, 2002. Attached is a letter from California Transportation Ventures, Inc. indicating that three relevant legal actions are pending that affect the timing of their plans for closing and funding construction debt financing, a prerequisite for close of escrow under the agreements. Each of the three legal actions is progressing upon its separate course through the judicial system to final resolution. Based upon those legal actions, it appears that Toll Road Financing cannot close in time to meet the deadline of December 31, 2002 as contained in the two subject agreements. Therefbre, SDELP is requesting an extension of the date for termination of the escrow. The first amendments to the two Toll Road Agreements provide that the escrow termination date be extended to July 1, 2003. FISCAL IMPACT: There is minimal impact for the construction of the toll road. However, if the project is not constructed or greatly delayed, there could be major fiscal impacts on the developers and City funds. In addition the City has an Interim SR-125 DIF should it become necessary to construct an interim roadway facility. Attachments: A. [3. C. Letter dated November 4, 2002 from CTV to Ann Y. Moore, Esq. First Amendment to City of Chula Vista Agreement with SDELP, First Amendment to Agreement Regarding Consent to Transfer Right-of-way for the Construction and Operation of the State Route 125 South Toll Road (SDELP and Trimark). File: J:\ENGINEER\AGENDA\FIRSI AMENDMENT AGMNTS SR 125DOC CTV 707 Broadway Suite 1700 San Diego, California 92101-5376 619-338-8385 FAX 619-338-8123 NOV 0 5 2002 Ann Y. Moore, Esq. Senior Assistant City Attorney Office of the City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 November 4, 2002 T/R-0001 Via Facsimile and Federal Express Re: City of Chula Vista Toll Road Agreement with San Diego Expressway Limited Partnership ("SDELP") and Agreement Affecting Real Property ("Agreement") Dear Ann: The referenced Agreement establishes and escrow for the transfer of certain properties from the City of Chula Vista to Caltrans to assist in the development of SR 125. Pursuant to its temps, the escrow ~vill terminate without closing if the conditions precedent to the close of escrow are not satisfied or waived on or before December 31, 2002, including the closing of the debt financing for construction of the Toll Road. Three relevant legal actions are pending that affect the timing of our plans tbr closing and funding construction debt financing. Each of the three legal actions is progressing upon its separate course through the judicial system to final resolution, as follows: Brown Field CTV has been dismissed as a Defendant in this case, which is proceeding against other Defendants. CTV's dismissal has been appealed by Plaintiff. During our due diligence, our counsel concluded that there was no merit to our inclusion in this action (or, frankly, in the underlying suit). This is a suit for monetary damages, so even a win by Plaintiff would have no effect on the project. Rol[k Action in state court claiming that the taking of a portion of park land for the project is unla~vful. Plaintiff lost the case at trial, and appealed. Appeal will be heard on Nov. 13. Our counsel is of the opinion that both the facts and the la~v are completely against Plaintiff's position, and that Plaintiff should certainly lose again. This, of course, probably will not prevent a fur[her appeal. ~'_ente_r[brBiolop, jcalDiversiip Suit in Federal District Court for the Southern District of California by certain environmental protection t,n-oups generally alleging that relevant governmental agencies (FHWA, Fish and Wildlife, and Corps of Engineers) did not appropriately, thoroughly, or responsibly examine the harn~ to the environment that the Toll Road would cause, notwithstanding the ten years and 47,000 pages of agency proceedings on this matter. Again, our counsel found that there was no merit to Plaintiff's claims. The major problem for us here, though, is timing: Plaintiff had asked lbr a Temporary Restraining Order to prevent us from starting construction. 'Phis ~vas denied on October 18. Plaintiff has asked for a Preliminary Injunction to prevent us from continuing construction activities. This motion is to be heard on November 4th. //23 Ann Y. Moore, Esq. November 4, 2002 Page 2 of 3 Plaintiff has asked lbr a Permanent Injunction to issuance of the permits. T"nis is the actual court case on the merits. This is currently scheduled to be heard on December 16, 2002. As the suit is against government agencies, the Department of Justice ("DOJ") is handling the suit (CTV was granted Defendant-Intervenor status, but that certainly does not give us control of the suit, notwithstanding the fact that we have the economic interest at issue). Plaintiff is seeking discovery in this case, as a result of the complexity involving multiple parties, it is likely that the December 16, 2002 hearing date will be delayed. Because of our role is limited to that of Defendant-Intervenor, although we are making every effort to argue against a delay and to encourage DOJ to try to expedite the proceeding, there is very little CTV alone can do to infloence a decision delaying the December 16, 2002 hearing date. Given the probable delay in the date for the hearing on the merits in the Center for Biological Diversky litigation, and the necessarily con'esponding delay in the date for the Court to issue its final determination, we believe that it would be in both SDELP's and the City's best interest to amend the Agreement to extend the date fro close of escrow by 1 $0 days, i.e., until July 1, 2003. This extension will enable the parties to address the issues raised by the litigation in a manner permitting the favorable close of debt financing. In the meantime, we are continuing to invest significant equity in project planning activities, including, but not limited to, the acquisition of approximately 300 acres of land for implementation of federal and state mitigation measures. In addition, CTV and SDELP are in the process of acquiring additional property interests for the construction and operation of SR125 that are not included in the Agreement. As you know, while the City already owns the fee title to some of the properties to be transferred to Caltrans pursuant to the Agreement, others have been irrevocably offered for dedication to the City by the current fee owners pursuant to agreements between SDELP and such tee owners. (The Agreement requires the City to accept such offers of dedication and transfer the fee title to Caltrans for development of SR125.) Two of those fee owners already have provisions in their agreements with SDELP that automatically extend their agreements if the City if Chula Vista extends the Agreement. We are talking to the other two owners to obtain their consent to similar 180 day extensions. Because the City is a party to SDELP's agreement with one of these owners, if necessary we would appreciate the City's cooperating in the execution of a written amendment extending the escrow established in that agreement by a con'esponding 180 days as well. Thank you very much for your consideration. We would appreciate you taking appropriate steps to schedule this matter for consideration by the City at the earliest possible date. Please let us know if you require any further information or assistance from us in this regard as soon as possible Sincerely, California Transportation Ventures, Inc. CTV Ann Y. Moore, Esq. November 4, 2002 Page 3 of 3 cc: Caltrans - Laurie Berman SANDAG Dean Hiatt Nossaman Donna Brady, Esq. File CTV RESOLUTION NO. 2001- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP AND AGREEMENT AFFECTiNG REAL PROPERTY AND AUTHORIZiNG THE MAYOR TO EXECUTE SAID AMENDMENT IN BEHALF OF THE CITY WHEREAS, on April 16, 2002, the City Council authorized staff to enter into an Agreement with San Diego Expressway Limited Partnership to facilitate development of the SR-125 Toll Road within the geographic boundaries of the City of Chula Vista; and WHEREAS, the Agreement specifies that the escrow deadline is December 31,2002 and that if that date is not met, the Agreement is terminated; and WHEREAS, certain actions outside the control of San Diego Expressway Limited Partnership, that date cam~ot be met and an amendment for the agreement needs to be approved in order to extend the date of termination. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the First Amendment to the Agreement with San Diego Expressway Limited Partnership to facilitate development of the SR- 125 Toll Road within the geographic boundaries of the City of Chula Vista, 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 Amendment on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Director of Public Works John M. Kaheny City Attorney J:\Attorney\RESO\SR 125 SDELP.doc 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 John M. Kaheny City Attorney Dated: //- /~,l -'0 ~ First Amendment to Toll Road Agreement by and between the City of Chula Vista, and San Diego Expressway Limited Partnership, through California Transportation Ventures, Inc., its general partner. FIRST AMENDMENT TO CITY OF CHULA VISTA TOLL ROAD AGREEMENT WITH SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP AND AGREEMENT AFFECTING REAL PROPERTY THIS FIRST AMENDMENT TO CITY OF CHULA VISTA TOLL ROAD AGREEMENT WITH SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP AND AGREEMENT AFFECTING REAL PROPERTY ("First Amendment") is made and entered into as of this __ day of November, 2002, by and between the City of Chula Vista ("CITY"), and San Diego Express~vay Limited Partnership, a California limited partnership ("SDELP"), through California Transportation Ventures, Inc., its general partner ("CTV"). A. CITY and SDELP have entered into that certain City of Chula Vista Toll Road Agreement with San Diego Expressway Limited Partnership and Agreement Affecting Real Property dated as of April 16, 2002 (the "Original Agreement") to facilitate development of the Projcct (as defined in the Original Agreement) within the geographic boundaries of the City of Chula Vista (the "City"). Residents of the City will receive substantial direct and indirect benefits from the Project. B. CITY and SDELP desire to amend the Original Agreement as set forth herein. NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Parties, the Parties do hereby agree to amend the Original Agreement as follows: 1. Defined temps in this First Amendment are indicated by initial capital letters. Except as otherwise specifically provided herein, defined terms have the same meanings in this First Amendment as they have in the Original Agreement. 2. The last sentence of Section 4.4 of the Original Agreement is hereby mnended and replaced to read in its entirety as follows: "The Escrow shall terminate without closing if each of the conditions to the Close of Escrow has not been satisfied or waived on or before July 1,2003." 3. Except as amended by this First Amendment, the Original Agreement is ratified and shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, thc parties have executed this First Amendment as of the date first set forth hcreinabove. [SIGNATURES TO FOLLOW ON NEXT PAGE] 1 I \Atto~ ney\ANN\C ]'V\( V Agt\Amendmcnts\CTV i st Amendmcnt doc CITY OF CHULA VISTA By: Title: APPROVED AS TO FORM AND LEGALITY: By: Title: City Attorney ATTEST: By: Name: Title: City Clerk Date: November I..~, 2002 SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP, a California limited partnership CALIFORNIA TRANSPORTATION VENTURES, its g~n~ral par?~r ~ ~] 222993 2,doc 2 RESOLUTION NO. 2001- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA, NNP- TRIMARK SAN MIGUEL RANCH AND SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP REGARDING TRANSFER OF RIGHT-OF-WAY FOR THE CONSTRUCTION AND OPERATION OF THE STATE ROUTE 125 SOUTH TOLL ROAD AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT IN BEHALF OF THE CITY WHEREAS, on July 23, 2002, the City Council authorized staff to enter into an Agreement with NNP-Trimark San Miguel Ranch and San Diego Expressway Limited Partnership regarding the transfer of right-of-way for the construction and operation of the SR-125 Toll Road facility; and WHEREAS, the Agreement specifies that the escrow deadline is December 31,2002 and that if that date is not met, the Agreement is terminated; and WHEREAS, certain actions outside the control of San Diego Expressway Limited Partnership, that date cannot be met and an amendment for the agreement needs to be approved in order to extend the date of termination. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the First Amendment to the Agreement with NNP-Trimark San Miguel Ranch and San Diego Expressway Limited Partnership regarding the transfer of right-of-way for the construction and operation of the SR-125 Toll, 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 Amendment on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Director of Public Works John M. Kaheny City Attorney 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 John M. Kaheny City Attorney Dated: /[- lc)-0'-2-. First Amendment to Agreement regarding Consent to Transfer of Right-of-Way for the Construction and Operation of the State Route 125 South Toll Road by and between NNP-Trimark San Mignel Ranch, San Diego Expressway Limited Partnership, through California Transportation Ventures, Inc., its general partner. FIRST AMENDMENT TO AGREEMENT REGARDING CONSENT TO TRANSFER OF RIGHT-OF-WAY FOR THE CONSTRUCTION AND OPERATION OF THE STATE ROUTE 125 SOUTH TOLL ROAD THIS FIRST AMENDMENT TO AGREEMENT REGARDING CONSENT TO TRANSFER OF RIGHT-OF-WAY FOR THE CONSTRUCTION AND OPERATION OF THE STATE ROUTE 125 SOUTH TOLL ROAD ("First Amendment") is made and entered into as of this day of November, 2002, by and between NNP-Trimark San Miguel Ranch, a Delaware limited liability company ("Trimark"), San Diego Expressway Limited Partnership, a California limited partnership ("SDELP"), through California Transportation Ventures, Inc., its general partner ("CTV"), and the City of Chula Vista, a municipal corporation ("City"). A. Owner, SDELP and City have entered into that certain Agreement Regarding the Consent to Transfer of Right-of-Way for the Construction and Operation of the State Route 125 South Toll Road (the "Original Agreement") dated as of July 23, 2002, to facilitate development of the Toll Road (as defined in the Original Agreement). B. Owner, SDELP and City desire to amend the Original Agreement as set forth herein. NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the Parties, the Parties do hereby agree to amend the Original Agreement as Follows: 1. Defined temps in this First Amendment are indicated by initial capital letters. Except as otherwise specifically provided herein, defined terms have the same meanings in this First Amendment as they have in the Original Agreement. 2. The last sentence of Section 5.3 of the Original Agreement is hereby amended and replaced to read in its entirety as follows: "The Escrow shall terminate without closing if each of the conditions to the Close of Escrow has not been satisfied or waived on or before July 1, 2003, unless the Parties agree to extend such date." 3. Except as amended by this First Amendment, the Original Agreement is ratified and shall remain unchanged and in Full force and effect. Trimark 1 st 11-8-02 1 IN WITNESS WHEREOF, the parties have executed this First Amendment as of the date first hereinabove set forth. TRIMARK: NNP-Tfimark San Miguel Ranch, LLC a Delaware limited liability ,c .orrlpany It~: t~',~, l'.P,~ ~?.~ - By: Its: SDELP: SAN DIEGO EXPRESSWAY LIMITED PAP. TNERSHIP, a California limited partnership By: CALIFORNIA TRANSPORTATION VENTURES, its general partner By: CITY: Title: Date: City of Chtda Vista a municipal corporation By: Mayor Witnessed: Date: Trimark 1st 11-8-02 IN WITNESS WHEREOF, the parties have executed this First Amendment as of the date first hereinabove set fo~h. TRIMARK: NNP-Trimark San Miguel Rmach, LLC a Delaware limited liability company By: Its: By: Its: SDELP: SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP, a California limited partnership By: CALIFORNIA TRANSPORTATION VENTURES, its general partn~[ By: ~ ~ Title: Date: CITY: City of Chula Vista a mtmicipal corporation By: Mayor Witnessed: Date: Trimark s First Amendment re Consent to TransTer of ROW for the Const~naction mad Operation of the SI~.DOC /o -lq COUNCIL AGENDA STATEMENT Item NO.: tl Meeting Date: 11/19/2002 ITEM TITLE: Resolution of the City Council of the City of Chula Vista placing the house located at 435 "E" Street, The William Ada Monroe House, on the City of Chula Vista List of Historic Sites in accordance with the Municipal Code Section 2.32.070(A). SUBMITTED BY: Director of Planning and Building,./ REVIEWED BY: City ManagerC~t ~/ (4/5ths Vote: Yes No X ) The property owner of 435 "E" Street has requested that her property be considered for inclusion on Chula Vista's List of Historic Sites. (Attachment 1) The Environmental Review Coordinator has determined that this project is exempt per the California Environmental Quality Act (CEQA), Section 1533, Class 31, Historical Resources Restoration and Rehabilitation. RECOMMENDATION: Staff recommends that the City Council find that the William Ada Monroe House meets the local criteria for designation of a site and therefore should designate 435 "E" Street as Historic Site #62 on the City of Chula Vista List of Historic Sites. BOARDS/COMMISSIONS RECOMMENDATION: The Resource Conservation Commission considered the designation of the property at their September 30, 2002 meeting and recommends that the City Council designate the William Ada Monroe House, 435 "E" Street as Historic Site #62 on the City of Chula Vista List of Historic Sites. (Attachment 2) DISCUSSION: 1. Municipal Code Authority In accordance with Section 2.32.070 of the City Of Chula Vista Municipal Code, the RCC shall recommend to the City Council the designation of any site, which it has found to meet the local criteria as a historical site and the Commission shall also recommend if the Historical Site Permit Process should be imposed on the site. tt-/ Page 2, Item No.: I ~ Meeting Date: 11/19/02 The Historical Site Permit Process has provisions to stay the issuance of permits for demolition or modification in order for the RCC to make a recommendation to the City Council about potential actions that could be taken to preserve the site. The RCC elected not to recommend the Historic Site Permit for this site. The City has adopted six criteria that are used to determine if a particular property should be included on the Historic Site List (Attachment 3). A site must be found to meet at least one of the six criteria to be selected for designation. 2. Owner Participation On July 30, 2002 staff received an application for historic designation from the property owner of 435 "E" Street. (Attachment 4) The owner was present when her house was considered for recommendation by the Resource Conservation Commission. A letter has been sent to the property owner notifying her of the current pending City Council action regarding her property. 3. Past History This house was not included in the Historic Resources Inventory conducted in 1985. There is no apparent reason as to why this home was not included in the inventory, as others that surround it were. However, the owner has provided staff with information on the history of the home and those who lived in it. The applicant states that the home was built in 1886, however, there is no recorded documentation to support 1886 as the year built. Though the exact year built cannot be verified, property records show that the house did exist as early as 1926 This house is located on one of the first paved roads in Chula Vista. The land that the house sits upon was part of Rancho de la Nacion which encompassed a large portion of western Chula Vista and all of what is today National City. Rancho de la Nacion was one of the largest pieces of property in the South Bay area and, at one time, the largest local producer of fruits and vegetables. It is believed that the house belonged to one of the foreman of the Ranch however this cannot be verified. Earliest records show that Ada Monroe took title to the property in 1912. William Ada Monroe (a.k.a Ada Monroe) is a significant person in the history of Chula Vista. Mr. Monroe was one of the first city council members and a member of the Chula Vista Board of Trustees. Mr. Monroe was an instrumental force in the establishment and maintenance of telephone lines in Chula Vista and was a prominent rancher in the South Bay. 4. Architectural Style This home is an example of Spanish Colonial Architecture. It has evidence of both subtypes of Spanish Colonial homes, Pitched Roof type and Flat Roof type. This is interesting because Page 3, Item No.: Meeting Date: 11/19/02 typically Spanish Colonial houses have one of the two roof types not both. Other features of the Spanish Colonial style include: · Solid Masonry construction · Wrought ironed covered exterior openings · Simple in style · Multiple external doorways · Small, narrow window openings 5. Features of the Site This house is a simple style Spanish Colonial house. In addition to the interesting combination of roof types, this house has a full basement, which is not typical of existing homes in the South Bay or California. The house has numerous narrow windows and an arched entry porch to the front door. (Attachment 4) 6. Conclusion This modest Spanish Colonial house may be one of the oldest homes remaining in Chula Vista. Though the exact year built cannot be verified, the house did exist as early as 1926. This house is located in an area of Chula Vista that is rich in the architectural and cultural history of Chula Vista. This site was an integral part of Rancho de la Nacion and is located on one of the first paved streets in Chula Vista. This house appears to meet several of the established criteria for consideration as a historic site. In addition to being a unique type of Spanish Colonial architecture, criteria #4, this house retains integrity of materials and design, criteria #6, and relates to a historic personage, criteria #2. Therefore, Staff recommends that the City Council designate 435 "E" Street as Historic Site #62 on the Chula Vista List of Historic Sites. FISCAL IMPACT: There is no fiscal impact associated with the inclusion of 435 "E" Street, the William Ada Monroe House, on the Chula Vista's List of Historic Sites. Attachments: 1 .) Locator Map 2.) Resource Conservation Coinmission minutes/September 30, 2002 3.) Local Historic Criteria 4.) Owner's application ibr historic designation 5.) Historic information on the property 6.) Photos J:\Planning\Lynnette\historic designation\435 E CC designation.doc FAMILY ~/ JJ~, f~-~ ~ UNITS \ ~'~'~-/'~" DWELLING ~ ~- ~ ~ ~ ~ ~ PROPOSED HISTORIC r CHULA VISTA PLANNING AND BUILDING DEPARTMENT LOCATOR .~O~EC~ .RO~EC~ ~ESCR~.~ON: APPLICANT: The Monroe House  ~o~Ec~ HISTORIC DESIGNATION ADDRESS: 435 "E' Street SCALE: FILE NUMBER: NORTH No Scale j:\home\planning\cherrylc\locators\435est.cdr 07.18.02 // .. L./! ATTACHHENT i MINUTES OF A REGULAR MEETING OF THE RESOURCE CONSERVATION COMMISSION September 30, 2002 Mercy Building Conference Room 430 "F" Street MEETING CALLED TO ORDER by Chair Teresa Thomas at 6:35 p.m. ROLL CALL/MOTION TO EXCUSE MSC (Ch~vez/Jasek) to excuse Vice-Chair Doug Reid. Vote: (4-0-0-1) with Bensoussan absent. MEMBERS PRESENT: Chair Teresa Thomas, Commissioners Juan Diaz, Stanley Jasek, John Ch~vez and Pamela Bensoussan (6:43) STAFF PRESENT: Marilyn Ponseggi, Environmental Review Coordinator Marisa Lundstedt, Environmental Projects Manager Linda Bond, Recording Secretary OTHERS PRESENT: Walter & Marilyn Williams, 692 Second Avenue Ligia Brannen, 435 'E' Street Charles Bull, 850 Beech Street, #807, San Diego, CA 92101 Jill Galvez, 7 Cresta Way APPROVAL OF MINUTES: August 19, 2002 MSC (Diaz/Jasek) to approve the minutes of August 19, 2002 after correcting two minor typos. Vote: (4-0-0-2) with Reid and Bensoussan absent. ORAL COMMUNICATIONS: None. OLD BUSINESS 1. Reconsideration of Historic Designation, 435 'E' Street (Monroe House) Ms. Marilyn Ponseggi (Environmental Review Coordinator) reported that this house was considered for designation at the August 19, 2002 RCC meeting where the Commissioners determined that there was not sufficient information to make a recommendation to the City Council. The owner stated at that time that the house was built in 1886; however, there was no recorded documentation to support that. Since then, the owner has done additional research and provided staff with more information on the history of the house and those who lived in it. Properly records show that the house did exist in 1926. This house is located on one of the first paved roads in Chula Vista. The land that the house sits upon was part of Rancho de ia Nacion, which encompassed a large portion of western Chula Vista and all of what is now National City. Earliest records show that William Ada Monroe took title to the property in 1912. Mr. Monroe was one of the first City Council members and a member of ATTACHMENT 2 (1 OF 2) RCC Minutes - 2 - September 30, 2002 the Chula Vista Board of Trustees. He was instrumental in establishing and maintaining telephone lines in Chula Vista as well as being a prominent rancher in the South Bay. Staff Recommendation: Based on the additional information that has come forward, staff recommends that the RCC reconsider the property owner's request for inclusion on the Chula Vista List of Historic Sites under Criteda #4, unique type of Spanish Colonial architecture; Criteria #6, retains integrity of materials and design; and Criteria #2, relates to a historic personage. MS(; (Jasek/Diaz) to approve staffs' recommendation for historic designation. Vote: (4-0-0-2) with Reid and Bensoussan absent. 2. Reconsideration of Historic Designation, 692 Second Avenue (Percy S. Eustis House) Ms. Ponseggi reported that, at the previous RCC meeting, there was extensive discussion about designating this house because of its context within a neighborhood that was once considered as a potential historic district and its close proximity to other homes that have been designated. Those were the primary reasons for the RCC designating the site. When staff went to write up the recommendation to City Council, staff realized they were having some difficulty in relating the house back to the criteria that are established. When the City Attorney's office reviewed the report, they sent it back to staff and said that it did not meet any of the adopted criteria. The City Attorney's office recommended that staff bring the house back to the RCC for reconsideration. Staff Recommendation: That the RCC hold off on this designation until such time as the ad hoc committee completes its work and the City Council acts on their recommendations. Mr. Walter Williams (Owner, 692 Second Avenue, Chula Vista, CA 91910) thought that his home had been misidentified as a modified Craftsman. He thought it is more properly a Cottage. No one has come to see the home or come inside it. Mr. Williams distributed photos of the exterior and interior of the house. These photos featured built in closets, built in China closets, built-in bookcases, a coat closet as you come in the front door that is built into the walls and very high ceilings. Ms. Ponseggi clarified that the reason no one had been inside the house is because the historic criteria specifically speaks to the exterior. Chair Thomas asked if there had been modifications made to the outside of the house. Mr. Williams responded in the negative. Ms. Ponseggi believed that modifications were the stucco. The stucco was not in character with the time that the house was built. Commissioner Bensoussan stated that she walked all around the house and did not see anything Craftsman about it. The only modification she saw was a porch that had been enclosed and made into a room, but the stucco and clapboard are original. When combining all the architecture features of the house, it is more of an Eclectic English Cottage. Commissioner Bensoussan wanted to recommend designation for meeting the criteria of important personage and architecture. Chair Thomas stated for clarification that the RCC made a motion at the August 19, 2002 meeting (Bensoussan/Diaz), which passed ur~animously for designation based on important ATTACHMENT 2 (2 OF 2) CRITERIA FOR LISTING: Bears a relationship to overall heritage on a local, state, or national basis. This Mission of San Diego, for example, is local but is also part of a statewide system that is recognized nationally. Relates to a historic personage who played an important role historically, on a local, state, or national basis. However, the individual need not be known nationally, as long as it was someone who made a significant contribution on a local basis. Ideally, this includes a site where the individual lived or where a noteworthy historical contribution or achievement took place. May be a site where an important event took place. This would be an event symbolic of a phase of history that could reach the national level. The site of the signing of a historic document, for example, will satisfy this criterion. The site should have distinguishing architectural characteristics that are identifiable. This includes structures of a particular architectural style recognizable today. The site may be archaeologically significant in its association with pre-history of the area. a site demonstrating existence of an ancient community (indians indigenous to the area, for example) could satisfy this criterion. Has integrity. This is where the site continues to have evidence of the original features. Enough of the original structure or the site is intact to be distinguishable as having historical value. /!_ -? ATTACHMENT 3 CHUL~ VI~A CITY OF CHULA VISTA PLAN,~iNG & BUILDING DEPARTMENT 276 Four~& Avenue Chub Vis~_ CA 91910 Historic Designation APPLICATION FORM ?LI C=MNT/O~VNER INFOR/VL&T1ON Applicant/Owner Name: /~/'77 ApplicantJOwaer Address: Phone: ¢7o Secondaw Owner Name: Owner Address: Phone: Case #: Date Submitted: i[ PROPERTY YNFORz~L&TION Common name: /(r~"c'/)°z-c¢/ ~5~/~'°/z~P ,7~b'UHistoric name: Year Built: //~'~(fl ffproximate Property size (in feet) or approximate acreage Ownership is: Private ~' or Pubiic Present Use: ,/~C'5'/~/-~'OTz)'~'~- Orig~al Use: Architectural Style: Assessoffs Parcel Number (Required): ~ff- fl~4 -D~- ~ Zone: I [ HISTORIC/LANDS£-MRK INFOR.~£&TION Use the reverse side of this form or a separate piece of paper may be a~ached for questions 1-3. 1. Please describe, in detail, historical aspects of the site or structure as well as any ether significam factors which may determine the prope~y as a historic site/landmark (i.e. special aesthetics; cultural. archkectural, or engineering factors; and any dates, events, or persons associated with the site or structure). See attached established criteria for designation. 2. Has the site or structure been alt~r_'= _/__ny way from ks orlolna, oeslgn. Yes No *-- (If yes, explain) - 3. Briefly describe the present physical condition of the property include a rating of poor, fair,¢ood./ excellent. ATTACHMENT 4 (1 OF 3) ATTACHMENT 4 (2 OF 3) ATTACHMENT 4 (3 OF 3) History of 435 E Street, the William Ada Monroe House On April 22, 1912, Ada Monroe Armitage, took title of a large parcel of land that included the remaining structure at 435 E Street, and extended to what is now Flower Street. The land was subdivided and sold off at different times. In the San Diego City and County Directory of 1907, W A Monroe is listed as a resident of the city of Chula Vista and troubleman for the telephone company (addresses of residents in the suburbs of San Diego weren't listed until the 1926 directory). In 1926, Florence B Monroe's address is listed as 435 E Street, and she is noted as the widow of rancher W A Monroe. William Ada Monroe is a significant person in Chula Vistan history, not just because he helped maintain the telephone lines and was a rancher, but he was also one of the first city council members. 1914, W A Monroe was listed as a member of the Chula Vista Board of Trustees. :In 1919, the c/b/council voted to construct the first paved road in Chula Vista. :it started at the city limits on Highland Avenue, and extended to E street, where it was paved from National Avenue to Bonita. So, the Monroe house was one of the first residences to "get out of the mud". 435 E Street, according to the 1926 Sanborn Fire Map of Chula Vista (earlier edition not available for this section of Chula Vista) was originally the only building on a larger parcel of undivided land that stretched to Guava Avenue. The property is possibly part of a larger parcel of land that extended to Fern Street and the midpoint between Guava and Brightwood, but the 1926 map had been amended in 1960, making it difficult to tell. The 1926 map however, proves that the structure at 435 E Street has not been altered since 1926. The grandson of Ada Monroe Arm/rage visited Ligia Brannen (the current owner) and her husband when he was down from the state of Washington. He told the following story that his grandmother had told him: the house was built in 1886. The original structure was said to be the home of a foreman who worked on Rancho La Nacion, farming citrus and vegetables. Rancho de la Nacion was public land/n 1822 - 26,631.£d acres - granted to Don Juan Forster. In !854, he sold the "/rational Ranch"to F.A.L. P/oche, a French resident of San Francisco. In 1868, bkothers Frank, Warren, and Levi Kimball bought Rancho Nacion, and subdivided it into National City, Chula Vista, and Bonita. Tn 1977, Ligia Brannen and her husband bought the house at 435 E Street from the Mary Louise Means estate. Her husband was Charles McDonald Means, .lt., who died some time around 1971. Architectural Style Simple style Spanish Colonial Architecture. Solid masonry construction with wrought iron covered exterior openings; simple style, multiple external doorways; small, narrow window openings; full basement. Spanish Colonial Revival Style 1915-1940 Characterized by plastered exterior walls, Iow-pitched, red-tiled roofs, and fiat roofs sometimes surrounded by tiled parapets. Some had arches. Carved or cast ornamentation off~en surrounded openings, and columns or pilasters sometimes flanked doorways. Balconies with wrought iron or wooden railings graced many homes. ATTACHMENT 5 //--// 435 "E" Street A.6 (2 OF 2) // ~ RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA PLACING THE HOUSE LOCATED AT 435 "E" STREET, THE WILLIAM ADA MONROE HOUSE, ON THE CITY OF CHULA VISTA'S LIST OF HISTORIC SITES IN ACCORDANCE WITH MUNICIPAL CODE SECTION 2.32.070(A). WHEREAS, the William Ada Monroe house is a Spanish Colonial house located at 435 "E" Street in the City Of Chula Vista (APN 565-280-03-00); and, WHEREAS, staff received communication fiom the property owner, Ligia Brannen, requesting that the William Ada Monroe house be designated as a historical site on the City of Chula Vista List of Historic Sites; and WHEREAS, State of California Historic Eligibility Criteria requires that a site be found significant at a local, state, or national level, under one or more of the criteria for designation; and WHEREAS, the Resource Conservation Commission determined that the William Ada Monroe House meets three of the local criteria for designation because of its important relationship to a historic personage, William Ada Monroe - a prominent rancher, a telephone company troubleman, and member of Chula Vi sta's Board of Trustees beginning in 1914 (Criterion 2); and WHEREAS, the William Ada Monroe House also continues to exhibit distinguishing architectural characteristics (Criterion 4) and the physical integrity of the original features of the house sufficiently conveys its historical value (Criterion 6); and WHEREAS, the Resource Conservation Commission at their regular meeting on September 30, 2002 voted 4-0-0-2 (with Reid and Bensoussan absent) to recommend that the City Council place the William Ada Monroe House on the City of Chula Vista List of Historic Sites; and WHEREAS, the Environmental Review Coordinator has determined that this project is exempt per the California Environmental Quality Act (CEQA), Section 15331, Class 31, Historical Resources Restoration and Rehabilitation. NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the designation of the William Ada Monroe House, 435 "E" Street, as a Historic Site and determines that it is hereby placed on the City of Chula Vista List of Historic Sites. Presented by: Robert A. Leiter Director of Plarming & Building Approved as to form by: John M. Kaheny City Attorney J:\Attorney\Reso~435 E Street.doc //-/¥ COUNCIL AGENDA STATEMENT Item: -~ ~ 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: REVIEWED BY: Andy Campbell, Director of Building and Park Construction ~ City ManagerJ~) (4/5tbs Vote: Yes No X ) 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 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 acm 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 $116,000 for the rough grading. Page 2, Item: .} ~ 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 purchase 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 JSBPCXBPC Administration~Agenda~Fire Station #7 Purchase Al 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 1S-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 Andy Campbell Director of Building and Park Construction JSAttorney\RESO\Fire Station #7 a.doc Approved as to form by 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 Jc~h~n M. K~ny City Attorney Dated: October 31, 2002 Purchase Agreement and Escrow Instructions by and between 0tay 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 ofpumhase 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: $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. 1 J:\Attorney\EHull\Fire Station #7\?urchase Agmt and Escrow Instructions.doc $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 J:\Attorney/EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc 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 Buyer 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 J:\Attomey\EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc party. An assignment shall not release the assignor fi.om 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 conunercial 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 all applicable laws and regulations. For purposes of this section of the agreement, the term "Hazardous Materials" means and refers to any substance, material or waste which is or becomes (i) regulated by any local or regional goveminental authority the State of California or the United States Government 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, 25 i41 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 se~.); (xi) defined as a "Hazardous Waste" pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et ~., (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 seq., and regulations promulgated thereunder; (xiii) defined as a "Hazardous Substanc~ 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 J:\Attorney\EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc 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.I 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. 11.5 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 JSAttorncy\EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc 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. I 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 ~varranty 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 be sought. 6 J:\Attomcy\EHuH\Otay Project\Purchase Agmt and Escrow Instructions.doc 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 o~' 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: (6!9) 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:\Attorney\EHull\Otay Project\Purchase 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~'om~ed 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 J:\Attorney\EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc 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. C~ooperation 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 hereof. IN WITNESS 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 J:\Attoraey\EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc SIGNATURE PAGE PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS SELLER: OTAY PROJECT, L.P., a Califomia limited partnership By: OTAY PROJECT, LLC, a California limited liability company Its General Partner By: Otay Ranch Development, LLC a Delaware limited liabililty company Its Authorized Member BUYER: CITY OF CHULA VISTA, a municipal corporation By: Shirley Horton Mayor Approved as to form and legality: By: Name: Robert B. Cameron Title: Vice President By: JoN~ M. Kaheny City Attorney ATTEST: [The above signatures must be notarized.] By: Susan Bigelow City Clerk 10 J:\Attomey\EHull\Otay Project\Purchase Agrat and Escrow Instructions.doc 0CT.!8.2002 9:49AM THE OTAY RANCH CO N0,2803 P, 2 SIGNATURE PAGE pLrRCHASE AGREEMENT AND ESCROW INSTRUCTIONS SELLER: OTAY PROJECT, LP, a California corporation BUYER: CITY OF CHULA VISTA, a municipal corporation By.'~~ By: , Name: ~c~c~.'C ~. ~ Shirley Horton Title: ~(~ ~o~10E~r Mayor By: Title: Approved as to form and legality: By: John M. Kaheny City Attorney ATTEST: [The above signatures must be notarized] ]~y: Susan Bigelow City Clerk 1D C:\Documents and Settings~'cameronkLocal Scttings\Tcmporary Ir~t~ner File$\OLK2\Purchase Agrnt and Escrow OCT !8.2002 9:49AM THE OTAY RANCH CO N0.2803 P. 3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Cal~ia (-~, On [F~';I~FJ't J~.~:l~. before me, /2~)4JL- ~0_~r)~. at' , ~personally known to me ~ proved to me on the basis of satisfacto~ evidence to be the person~) whose subscribed to th% within instrument and acknowledged to me~lat he/she/they executed the same in ('~i~r/tt~ir _~l~thorizw capacity(i~), an~t~at ~by ~r/t~r signatur~on the instrument the person~), or the entit~upon behalf of which the person~) OPTIONAL Though the information bo/ow is not r~quired by law, it may prOve valuable to per~ons relying on the document and could prevent f~dudulent mrnovel and reattachrnent of this form to another document, Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: [] Individual Fi Corporate Officer -- ~tle(s): [] Padner--[] Limited l-i General L] Attorney in Fact q 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: ll J:~Attorney\EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc LIST OF EXHIBITS Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Legal Description of Property Grading and Utility Requirements Preliminary Title Report General Provisions of Escrow Holder Form of Affidavit 12 J:\Attorney\EHull\Otay Project\Purchase Agmt and Escrow Instructions.doc / ~uemo: 10022599 ~XHIBIT A LEGAL DESCP, IPTION All that certain real property situated in the County of San Die§o, State of CalifoEnia, 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. i 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 Hap 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 76°40'26'' West, 266.27 feet; thence North 12o45'05'' 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: 644-030-:~1 CLTA Preliminary Report Form (Rev 1/1/95) Page 3 EXHIBIT B ~XHIRTT~R ~e~ ? ~ ~ 1455 Frazee Road Suite 600 San Diego, CA 92108 Phone: (619) 686-6000 KXHIBIT C Commonwealth Chicago Title Company 925 "B" Street San Diego, CA 92101 Attn; Renee IViarshall Your Reference No: 2306015! Property Address: Vacant Land Our File No: 10022599 - 674-7 Title Officers: Alan Schaffner and Linda Slavik (aschaffner@landam.com) (Islavik@landam.com) Phone: (619) 686-6000 Fax: (619) 299-1718 PRELl'MI'NARY REPORT Dated as of October 7, 2002 at 7:30 a.m. in 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 insurance 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, defectst and encumbrances affecting title to the land. CLTA Preliminary Report Form (Rev 1/1/95) Page ! 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 FI=E 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 EXHI'Bi'T "A" ATTACHED HERETO AND MADE A PART HEREOF CLTA Preliminary Report Form (Rev 1/1/95) Page 2 r~e~o: IU022599 Exhibit "A" 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 p~irticularly 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" Hap 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 76°40'26'' 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 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: 644-030-11 CLTA Preliminary Report Form (Rev t/1/95) Page 3 ~',i~ ~u: 1UU22599 $CHEDULE B At the date hereof Exceptions to coverage in addition to the printed exceptions and exclusions in said policy form would be as follows: 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: Penalty: 2nd Installment: Penalty (including cost): Exemption: Code Area: Assessment No.: $33,362.73 Not Paid (Delinquent as of 12/11/02) $3,336.27 $33,362.73 Not Paid (Delinquent as of 4/11/03) $3,346.27 $0.00 01265 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 ! West and portions of Villages 2, 6, 7 and Planning Area 12) Recorded: August 18, 1998 as File No. 1998-0523069 of Official Records if 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: By and between: Regarding: Recorded: October 28, 1993 City of Chula Vista, County of San Diego, State of California, and Otay Vista Associates, a California Limited Partnership 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 February 7, :[994 as File No. 1994-0084743 of Official Records 3.' A document subject to all the terms, provisions and conditions therein contained. Entitled: Dated: Executed by; "Restated and Amended Pre-Annexation Development Agreement with Otay Ranch, L.P.' March 4, 1997 City of Chula Vista and Otay Ranch, L.P., a California Limited Partnership CLTA Preliminary Report Form (Rev.1/1/95) Page 4 File No: 10022599 Recorded: 4. A document subject to all Entitled: Dated: Executed by: Recorded: SCHEDULE B - Continued May 12, 1997 as File No. 1997-0219970 of Official Records the terms, provisions and conditions therein contained. "Affordable Housing Agreement" December 16, 1997 OLay 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 February 17, 1998 as File No. 1998-00793:!.3 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: Easement purpose: Affects: Parcel Map No. 18471 Future 40 foot wide private access The Northerly portion 6. A document subject to all the terms, provisions and conditions therein contained. Entitled: Dated: Executed by: Recorded: "Desiltation and Maintenance Agreement with OLay Project L.P., (Poggi Canyon Drainage Improvements) October 19, 1999 OLay Project, L.P., a California Limited Partnership, Prowswood- Matsushita OLay Partners, LLC, a California limited liability company as owner, Centex Homes, a Nevada General Partnership, PHI OLay Rancho A~sociates, LLC, a Delaware limited liability company and the City of Chula Vista June 28, 2000 as File No. 2000-0341829 of Official Records A deed of trust to secure an indebtedness in the amount shown below, and any other obligations secured thereby. Amount: Dated: Trustor: Trustee: Beneficiary: Address: Recorded: $10,000,000.00 September 22, 2001 OLay Project L.P., a California Limited Partnership Bar K, Inc., a California Corporation Gold Mountain Financial Institution, Inc., a California CorPoration 201 LaFayette Circle, 2nd Floor, LaFayette, CA 94549 October 3, 2001 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 Institution, Inc. and Otay Project L.P. and OLay 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 7 SCHEDULE B - Continued 8. A deed of trust to secure an indebtedness in the amount shown below, and any other obligations secured thereby. Amount: Dated: Trustor: Trustee: Beneficiary: Address: Recorded: $100,000.00 April :16, 2002 Otay Project L.P., a California Limited Partnership Bar K, THC., a California Corporation Bar K, Inc., a California Corporation 201 LaFayette Circle, 2"d Floor, LaFayette, CA 94549 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 Page 6 File No: 10022599 INFORMATIONAL NOTES NOTE NO. 1: PRIVACY NOTICE (15 U.S.C. 6801 AND 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 INFORMATION ABOUT YOU TO THOSE EMPLOYEES WHO NEED TO KNOW THAT INFORMATION TN 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 1ANUARY 1, 1991, REQUIRES 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 1/3O/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 SUBIECT PROPERTY. THE ACCURACY OF THIS PLAT IS NOT GUARANTEED, NOR IS IT A PART OF ANY POLICY, REPORT OR GUARANTEE TO WHICHIT MAY BE ATTACHED. NOTE NO. 4:CALIFORNIA INSURANCE 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 DEPOSITED 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 WITH 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 SERVICES ANO PRODUCTS OF SUCH FINANCIAL INSTITUTION. SUCH BENEFITS SHALL BE DEEMED ADDITIONAL COMPENSATION OF THE COMPANY FOR ITS SERVICES IN CONNECTION WITH THE ESCROW OR SUB-ESCROW. WIRING INSTRUCTIONS FOR THIS OFFICE ARE: UNION BANK 530"B"STREET ~AN 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) Form2210 11 (6/2/.98) Page 8 ~xHt6IT D GENERAL PROVISIONS TO: CHICAGO TITLE COMPANY Escrow Nmnber: :Z3060151.-47 Dato: October 17, 2002 I Time is of ~ ~cm:e of r.h~ i~xu~ct/ons. If this e.~:mw h no~ in ~ co~d/~/on m do~ by fl~ ~ DATE as provided for h~cin ~d ~//tu:n ~ [or cam~llalion ~ow a.~er said. d~. you shaU act m acc~r~hmce with paragr~h ~ratmclion or d~u/for ~H~on is ~e, you ~1 · &~b~ by ~c new ]cn~. ~d b~w~ ~ees to pay s~c m ~cc ~ ~or su~le~nts, may bc ' ~t~ Si~cd d~u~n~. ~ p~es ~rcby a~c to ~c~t ~d h~by ~s~ct Assu~ a 30 day ~nth [u ~y ~on heroin provide, ~d ~ Upon close of gs~ow ~u ~ ~S~d ~ ~e o~ms~ctive ~ a~ h~ ~fl made a p~ ~E of title i~ce ~led f~, is ~z~ No ex.nation or i~ ~ by ~fi~ ~ one eo~ of guch nofim ~ e~h of ~e oth~ p~ U~ ~en objection ~em is filed in ~ office by a ~dp~ ~ ~ (15) ~m~ ~ ~ su~ m~ng, you ~ insIm~ m c~cel ~ escrow. If Ih~ is a ~ ~ ev~t ~ ~s egrow is ~ ~y fees or ch~ge, due Chicago ~ to or ~t~ed by a corn of compeer j~icfim U~ ~ ~ is no wnrt~ ~ti~ty by ' ~cago ~de ~m~y may, at its option, te~ im ~y o~ ~d ~ ~ mt~miug ~ ~c~. ~neys or oth~ it~ hd~ to ~e ms.cdr= ~ ~ provi&d bemire Chicago Title Company General Provisions - Page 2 10. If, for ~my re.~on, fund~ ~re ~ined ar ~ m cs~w 11. In ~e ev~t ~ you sho~d ~c~ve or b~m~ aw~ of co~c~ng ~, ~ ~ ~ ~t m ~s es~w, right a yo~ opti~ to ~s~nflnuc ~y or ~ ~ h~ spicily a~ m ~ce~ ~ ~ m P~, ~p~it ·ese ~ow iP~C~S nor wi~ ~ o~ ~ccmont or ~n~ct be~ ~ p~cs. c~di~on mbscqu~C ~ ~c c~in~ of~is ~cmw. d~y, or o~r expe~ ~liv~ s~ices (~ optical ~ve~ C~ af t986 ~ ~ndcd, ~d m Sc~u~ 18662 ~d 18~8 ~ ~ C~fa~aR~ ~ T~on ts ~ fo~ pcaon or a ~n-~dcBt ~ su~ S~on, nor (d) 16. ff you ~y a ~m~d m pay ~ ~1] a ~ving line of ~l or ~ui~l~c 1o~. you ~ h~by i~ ~ my ~f ~d for my b~cfi~ to ~u~t aie l~r issuing ~co~tio~ or o~ ben.ts, Yoa sha~ have no ob~ to ~t ~r Chicago Title Company General Provisions - Page 3 ALL PAR~.S TO gms ESCROW ACKNOWLEDGE THA. T C.~ICAGO ~E CO~ ~ NOT PRO~E ~G~ ~ NOR ~ ~ ~E ~ ~OATION, ~A~O~ OR ~ ~0~ ~G ~ LEG~ ~ OR ~~ OF ~A~. ~ ~ ~CO~ ~T T~ ~ .OBT~ ~~ ~G~ ~L AS TO ~ ~. ~ ~O~ ~OW ~TRU~IOHS ~ ~ ~O~ ~ B~ ~ ~ ~ ~OOD ~ A~'~ TO BY ~ OF '1'~ ~~, ST~T.T ENITIAL INITIAL Current Current Addr~s: Telephone: Telephone= EXHIBIT E Form of Affidavit [To be inserted] ITEM TITLE: COUNCIL AGENDA STATEMENT Item ]v~ Meeting Date 11/19/02 Public Hearing to consider the adoption of an Urgency Ordinance modifying the existing Telegraph Canyon Sewer Pumped Flows Development Impact Fee. SUBMITTED BY: REVIEWED BY: Urgency Ordinance 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 / Director ot' Public~,, Works/~ City Manager ~,4/4,-0 (4/5th'Vote: Yes X No__) On October 22, 2002, City Council approved Urgency Ordinance No. 2885-A, modifying Ordinance 2582. This proposed Urgency Ordinance will enable the City to continue to collect the fee during the sixty (60) day waiting period before the regular Ordinance becomes effective. The public hearing has been duly noticed. RECOMMENDATION: That City Council conduct the public hearing and approve tile Urgency Ordinance amending Ordinance 2582. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The amendment to Ordinance 2582 adding the Poggi Canyon Basin Sewer Interceptor as one or'the f;acilities financed by the Telegraph Canyon Pumped Flows D1F and changing the name of the DIF to Pumped Sewer Development hnpact Fee (PSDIF) was introduced on October 22, 2002 and approved on November 5, 2005 by Ordinance 2885. It will become efl'ective sixty (60) days after its adoption. Urgency Ordinance 2885-A, which was also adopted on October 22, 2002, expires thirty (30) days after its adoption. Tonight's Ordinance, if approved, will extend the Urgency Ordinance for an additional thirty (30) days. A second extension of the Urgency Ordinance will be brought to Council on December 17, 2002 to prolong the collection of the fee until tile regular Ordinance becomes effective. The PSDiF, approved by Council on October 22, 2002, included the Poggi Canyon Basin Sewer Interceptor as one of tbe facilities financed by the DIF and recalculated the fee to be $180 per Equivalent Dwelling Unit (EDU). The same topics ,,,,'ere discussed and Item /~ Meeting Date 11/19/02 adopted by the Urgency Ordinancc approved on the same date. The PSDIF is fitlly explained in tiao October 22, 2002 Agenda Statement, attached hereto. Table 2 presents the calculation of the fee (Table 1 is omitted). TABLE 2 Pumped Sewer Development Impact Fee (DIF) ESTIMATED ITEM COST Interceplor Improvements attributable to pumped flows only $686,700 Pumped Flow Analysis Study $57,500 Pumped Flow DIF Engineering Study $13,500 Oversize o1' 2,522 l/near feet of Poggi Canyon Basin Sewer Interceptor ( 15 to 1 S-inch) $10,000 Poggi Canyon Basin Sewer Interceptor Flow Monitoring Program $60,000 Telegraph Canyon Trunk Sewer Flow Monitoring Program $60,000 Purchase of Equipment to Implement the Metering Programs $15,000 TOTAL [ $902,700 Estimated Pumped Flow Basin EDUs fo~ the ~n~,of-year 2005 ] 5,010 DIF FEE PER EDU I $180 This l'ee will be payable at the time a building permit is issued and will be in addition to thc existing sewer capacity charge of $2,220 per EDU and the Salt Creek Sewer Development Impact Fee of $284 per EDU. The Fee will be adjusted annually to reflect the varying cost of construction, inflation and any changes in proposed development within the basin. FINDINGS Staff' recolnnlcllds thai the Pumped Sewer Development impact Fee go into effect immediately by adopting the Urgency Ordinance in order that the City have the option of using either the Telegraph Canyon Trunk Sewer or the Poggi Canyon Basin Sewer Interceptor to provide sewer service to developments within the Primped Flow Basin. hnmediate ilnplementation 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 sexvage spills and Pdilure of the sewer system. 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 thc public health, welfare and safety justifying the immediate imposition of this Fee. Page 3 Item ~ Meeting Date 11/19/02 ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the Calilbmia Euvironmental Quality Act and has determined that the project qualifies for a statutory exemption pursuant to Section 15282(I) of the State CEQA Guidelines. Thus, no t'urther environmental review is necessary. FISCAL IMPACT: Passage of these Ordinances will result in revennes of' approximately $902,700. The fee will be adjusted annually to reflect the varying cost of construction, inflation and any changes in proposed development within the Basin. These revenues would be used for the construction and other related costs of the improvements needed to thc Telegraph Canyon Trunk Sewer and the Poggi Canyon Basin Sewer Interceptor as a consequence o f the additional conveyance of pumped flows. Exhibit 1: Council Agenda Statement for October 22, 2002 COUNCIL AGENDA STATEMENT Item a~Q-~ Meeting Date 10/22/02 ITEM TITLE: Public Heating to consider the adoption of an Ordinance and an Urgency Ordinance modifying the existing Telegraph Canyon Sewer Pumped Flows Development Impact Fee and a Resolution to accept the Pumped Sewer Development Impact Fee Engineering Study prepared by PBS&J. Resolution Accepting a report prepared by PBS&J recommending the update of the Telegraph Canyon Sewer Pumped Flows Development Impact Fee to address capacity constraints on the Telegraph Canyon Trunk Sewer. Ordinance .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. SUBMITTED BY: REVIEWED BY: Urgency Ordinance Amending Ordinance 2582 to add the Poggi Canyon Basin Sewer Interceptor as one of the facilities financed by the Telega-aph Canyon Sewer Pumped Flows Development Impact Fee and to change the name to Pumped Sewer Development Impact Fee. Director of Public Works City Manager (4/Sths Vote: Yes: X No: ) On March 15, 1994 by Ordinance 2582, the City established the Telegraph Canyon Sewer Basin Pumped Flows Development Impact Fee Fund (TCSBPF DI:F Fund) and set the DIF fee at $560 per EDU (See Exhibit 1 for Ordinance 2582). The purpose of this Fund was to finance future sewer improvements on the Telegraph Canyon Trunk Sewer Facility that would be triggered by the pumping of sewage generated within the "Pumping Flow Basin" (that area to the East of the Telegraph Canyon Sewer Basin, within the Salt Creek and Pog~ Canyon Basins) into the Tele=m'aph Canyon Trunk Sewer. A[the time the DP was established, the Pog~ Canyon Trunk Sewer was still under construction and the Salt Creek Trunk Sewer was being contemplated. Since then, the construction of the Pog~ Canyon Trunk Sewer has been comp.leted. Tonight, Council will consider the approval of the modification to the Telegraph Canyon Sewer Pumped Flows DIF to include the addition of the Pog~ Canyon Basin Sewer Interceptor to the list of approved Facilities in Ordinance 2582. These modifications will allow the City to use either the TelegaPh Canyon Trunk SeWer or the Pog~ Canyon Basin Sewe~: Interceptor to provide sewer service to developments within the Pumped Flow Basin until the completion of the Salt Creek Gravity Sewer Interceptor. It would also result in the decrease of the D1]F fi-om $560 to $180 per Equ_iyal~nt .D~ell~g unit (EDU'). Furtherm0rk; Council is also being asked to change the name of the DIF from "Telegraph Canyon Page 2, Item o,~5 Meeting Date 10/22/02 Sewer Pumped Flows Development Impact Fee" to "Pumped Sewer Development Impact Fee". The proposed Urgency Ordinance will enable the City to collect the Fee during the 60-day waiting period before the regular Ordinance becomes effective. RECOMMENDATION: That Council: 1. Conduct the Public Hearing. 2. Approve the'Resolution accepting the engineering study prepared by PBS&J. 3. Approve the Ordinance amending Ordinance No. 2582 (first reading). 4. Approve the Urgency Ordinance amending Ordinance No. 2582. BOARDS/COMMISSION RECOMMENDATION: Not applicable. DISCUSSION: TELEGRAPH CANYON BASIN Tele~ar~h Canyon Gravity Basin & Pumped Flows Development Impact Fee In I992, Willdan Associates prepared the "Telegraph Canyon Sewer Basin Improvement and Financing Plan" that analyzed the ability of the Telegraph Canyon Trunk Sewer to support development under buildout conditions. The study determined that the Trunk Sewer did not have adequate capacity to support the basin buildout and identified reaches within the system that would have to be upgraded. Based on the findings of that study, the City established the "Telegraph Canyon Gravi~ Basin Development Impact Fee" to fund the required improvements. Subsequently, in 1993, Willdan Associates prepared the report titled, "Telegraph Canyon Sewer Basin Improvement and Financing Plan Amendment Incorporating Pumped Flows", to further analyze the impacts of pumped flows on the Trunk Sewer System. The goal of this study was to determine the incremental impact of pumped flows on the system beyond what was identified for the gravity basin flows. Tiffs net incremental cost was the basis of the establishment of the "Telegraph Canyon Sewer Pumped Flows Development impact Fee". It was intended at that time that the funds collecled in this DIF would be used to construct the required improvements, if the Salt Creek Trunk Sewer I/me was never built and pumped flows temporarily being pumped into the basin had to remain there permgnently. At that time, there were no irranediate plans to construct the Salt Creek Gravity Sewer Interceptor since development activity within the basin was progressing at a relatively average pace. Staff was directed to monitor the flow in the system to determine when improvements or the Salt Creek line may be needed2 In 1999 as development activity began accelerating, the need for the Salt Creek Gravity Sewer Interceptor became imminent, and the City retained Dudek & Associates to plan and prepare design plans required for the construction of the Interceptor. To date, the first phase of the construction of [he Salt Creek Gravity Sewer Interceptor is underway and it is anticipated that all the four phases of the Salt Creek project will be completed by the summer of 2003. While the consmaction of Salt Creek is underWay, receht projections in the Telegraph Canyon Tnmk Sewer Stud?,.Lc0mpleted by PBS&J. on behalf of EastLake Company as part of development Page 3, Item ~,g Meeting Date 10/22/02 processing for EastLake III, indicated that the Telegraph Canyon Trunk Sewer would not have adequate capacity to support additional flows from gravity basin development and pumped flows prior to the completion of the Salt Creek Trunk Sewer. Based on the various analysis conducted as part of that study, it was determined that the most~economically viable solution was to maintain only the gravity flows in the Telegraph Canyon Sewer and divert the pumped flows to the Poggi Canyon Trunk Sewer. Tele..m-aDh Canyon Trunk Sewer Improvements When the Willdan Study was prepared in 1992, prior to the formation of the Telegraph Canyon Gravity Basin DIF, the study and its recommendations were based on certain assurnpt!ons of rate of development and land uses within the basin. It was decided at that time that the timing of the construction of the required improvements, which formed the basis of the DIF, would be dependent upon the results of the City's monitoring of the trunk line. Since then, Staffhas been monitoring the flow in the system. In December 1999, the City retained PBS&J to re-evaluate the findings of the Willdan Study and determine what capacity existed within the system and when improvements will be required. Based on the results of that study ("Telegraph Canyon Trunk Sewer Study dated September 2000) the City initiated the first phase of improvements on the Telegraph Canyon Trunk Sewer system. The construction project is currently underway and is scheduled to be completed by October 2002. The project will improve approximately 7,300 lineal feet of the trunk line and was sized to convey ultimate gravity basin flows. Since these improvements were sized for gravity basin buildout only, the improvements were £manced utilizing "Telegraph Canyon Sewer Development Impact Fee" and Tnmk Sewer Capital Reserve Funds only. While the construction of these improvements was underway, EastLake retained PBS&J to prepare the "Offsite Sewer Study for EastLake III"; a technical appendix to the Environmental Impact Report (EIR) that EastLake had to prepare for its EastLake III project. Since the EastLake III project is within the Salt Creek Sewer Basin and since the Salt Creek project was not yet completed, the purpose of the sewer study was to show how the EastLake III project would be served if the Salt Creek Trunk Sewer was not completed on time to serve the project. As part of that study, EastLake had to analyze various alternatives for providing sewer service to its project in lieu of the Salt Creek Gravity Sewer. The study determined that if the flows were pumped into the Telegraph Canyon Trunk Sewer line, in addition to the flows already being pumped into the line, the line would have to be si~kmificantly upsized well beyond the Scope of the current improvements. Furthermore, recent flow monitoring also indicated that the Telegraph Trunk Sewer is very rapidly approaching threshold capacity within certain reaches of the pipeline that were not within the scope of the current improvements. Based on these constraints, the study determined that since the trunk line was located in a highly traveled roadway, it would be extremely expensive and disruptive to try to complete the required improvements in time to avoid the system becomi~g overburdened. As a result of that study, Eastlake Company and the City, determined that it was more cost-effective and efficient to divert the pumped sewage flows to the Pog~ Canyon Basin Sewer Interceptor while staff continues to maintain and monitor the Telegraph Canyon Sewer. The diversion of pumped Meeting Date 10/22/02 flows will be accomplished through the construction of interim facilities via the recently completed Poggi Canyon Trunk Sewer to the Date-Faivre Trunk Sewer line. The' pump stations at Olympic Parkway and Otay Lakes Road will be retrofitted t? pump the flows in a different direction as shown on Exhibit 2. This configuration will remain operational until the completion of the Salt Creek Trunk Sewer by the summer of 2003. This alternative has the added benefit of reducing the DIF from $560 to $180 per EDU. Also, the time to complete the needed improvements in the Poggi Canyon ]Basin Sewer Interceptor is significantly less than the time that would be required to do improvements in the Telegraph Canyon Trunk Sewer. It is estimated that the construction needed to divert the pumped flows to the Poggi Canyon Basin Sewer Interceptor can be completed by November 2002. POGGI CANYON The Poggi Canyon Sewer Basin is located in eastern Chula Vista and extends from west of Interstate 805 Io EastLake. The basin includes a significant portion of the Otay Ranch General Planning Area situated north of the Wolf Canyon, west of Salt Creek Sewer Basins and south of the Telegraph Canyon Sewer Basin. The western portion of the Poggi Canyon Sewer Basin is principally built-out. The Poggi Canyon Trunk Sewer line was designed and constructed to convey sewage generated within the Poggi Canyon Sewer Basin to a planned connection to the Salt Creek Gravity Sewer Interceptor. However, since the Salt Creek Trunk Sewer is still under construction, the Poggi Canyon Trunk Sewer has been temporarily connected to the existing Date-Faivre Trunk Sewer. To facilitate the removal of pumped flows from the Telegraph Canyon Trunk Sewer to the Poggi Canyon Sewer, the Pog~ Canyon Sewer Line will be temporarily disconnected from the Date-Faivre Trunk Sewer and connected to the City of San Diego Otay Valley Trunk Line until the Salt Creek Trunk Sewer is completed by the summer of 2003, should Council approve an agreement reached with the City of San Diego Which staffis bring4mg to CounciI at a later date. PROPOSED MODIFICATIONS TO THE TELEGRAPH C.43hn/ON SEWER PUMPED FLOWS DIF Back,round When the Telegraph Canyon Pumped Flow DIF was originally established in 1994, the DIF was based on the cost of the improvements on Telegraph Canyon Tnmk Sewer alone. Based on the results of that study, the DIF was determined to be $560/EDU. However, since the City now proposes to use the Pog~.Canyon Trunk Sewer line to convey the same pumped flows, the impacts resulting from the conveyance of the pumped flows in addition to gravity basin flows generated within the Pog~ Canyon Basin, need to be determined and incorporated into the DIF calculation. /3-7 Page 5, Item Meeting Date 10/22/02 P._oggi Canyon Trunk Sewer Improvements (Pumped Flow) In February 2002, .the City retained PBS&J to prepare an update to the Poggi Canyon Basin Plan that was prepared by Wilson Engineering in 1997 which was the basis for sizing the Poggi Canyon Trank Sewer. The goal of this study by PBS&J was to analyze the ability of the system to sustain the gravity.basin to buildout. The study was also intended to analyze the ability of the Poggi Canyon Trunk line to support pumped flows from other basins if for some reason the Salt Creek Trunk Sewer was not completed by 2005. The study determined that approximately 661 lineal feet of the Poggi Canyon Trunk Sewer would need to be replaced in order to support gravity basin buildout. The findings were consistent with the earlier findings of the Wilson Study. The cost of these improvements will be funded through the existing Poggi Canyon Gravity Sewer Basin DIF. Shortly after completing that study, the Eastlake Company retained PBS&J to prepare a study termed "Pumped Sewer Development Impact Fee-Engineering Study" (Exhibit 3). The goal of the study was to determine the cost of the improvements required to support pumped flows from only those properties within the current "Tributary Basin" of the Telegraph Canyon Sewer Pumped Flows DIF. The study determined that there would be future constraints in the Interceptor caused by the conveyance of both gTavity and pumped flows. A hydraulic simulation was performed with both the ,projecTed ultimate ~avity basin and end-of-year 2005 Pumped Flow Basin sewage flows. It was determined that 11 segrnents of the InTerceptor exceeded the City of Chula Vista's criter/a for safely conveying sewage. Table 1 shows the total cost for the improvements needed to convey both gravity and pumped flows. TABLE l Estimated Cost of Improvements in the Poggi Canyon Basin Sewer Interceptor EXISTING REPLACEMENT POGGI CA-NYON LENGTH TOTAL DL&M~TER DIAMETER IMPROVM:ENTS (LN) (1~) (L. F.) COST Gravity Basin Impacts ~ 18 24 660 $198,000 Comb/ned Grax~ity Basin and Pumped Flow 18 21 2,453 $884,700 Impacts -' 18 24 660 ; ~I~le 1. Improvements requ/red to suppoi~ g~avity basin to buildout. 2. Improvements required to support both ultimate gravity basin flows and year 2005 pumped flows. Page 6,1tem ~-'~ Meeting Date 10/22/02 Tributary Basin Section 3, of Ordinance 2582 shows the "Terrilory" (area of benefit to which the Fee is applicable) (See Exhibit 4). With the proposed modifications to the DIF, the "Territory" will remain unchanged as show in Exhibit 4. List of Facilities The list of facilities in the 1993 Willdan study was incorporated into Ordinance 2582. Therefore, the list of facilities shown on Ordinance 2582 will need to be revised to include the Poggi Canyon Trunk Sewer. Staff also recommends that the name of the DIF be changed to "Pumped Sewer Development Impact Fee" since the DIF now has two facilities (Telegraph Canyon Trunk Sewer and Poggi Canyon Trunk Sewer) either of which can be used to provide the same sewer service. With the approval of these modifications, the fee will be based on the cost of improvements to the Poggi Canyon Basin Sewer Interceptor. Fee Determination Consistent with the 1993 Willdan Report, the 2002, PBS&J Engineering Study also recommends dividing the total estimated cost of improvements by the number of EDU's projected to be completed within the Pumped Flow Basin (by 2005) as the methodology for determining the DIF. Table 2 presents the revised DIF calculation. TABLE 2 Pumped Sewer Development Impact Fee (DIF) ITEM Interceptor Improvements - attributable to pumped flows only Pumped Flow Analysis Study Pumped Flow DISc En~neering Study Oversize of 2,522 linear feet of Poggi Canyon Basin Sewer Interceptor (15 to 18-inch) ESTIMATED COST $686,700 $57,500 $13,500 $10,000 Poggi Canyon Basin Sewer Interceptor Flow Monitoring Program $60,000 Telegraph Canyon Trunk Sewer Flow Monitoring Program $60,000 Purchase of Equipment to Implement the Metering Programs $15,000 This fee will be payable at the time a building permit is issued and will be in addition to the existing sewer capacity charge of $2,220 per EDU and the Salt Creek Sewer Development Impact Fee of $284 per EDU. The Fee will be adjusted annually to reflect the varying cost of construction, inflation and any changes in proposed development within the basin. COORDINATION WITH THE DEVELOPMENT COMMUNITY Page 7, Item ~'Q ~' Meeting Date.10/22/02 Staff has coordinated with developers impacted by the modification of the DIF (EastLake Company and McMillin Companies) to present the plan for the modification of the Telegraph Canyon Sewer Pumped Flows DIF. The developers concur with the City's stated approach for modifying the DIF. PROPOSED ORDINANCES By adopting the proposed Ordinances, the Council would accomplish the following: 1. Add the Poggi Canyon Basin Sewer Interceptor as one of the "Facilities" financed by the Telegraph Canyon Sewer Pumped Flows Development Impact Fee. 2. Decrease the DIF from $560 to $180 per EDU. Change the name of the Telegraph Canyon Sewer Pumped Flows Development Impact Fee to Pumped Sewer Development Impact Fee. Authorize the Ordinance to become effective 60 days after the second reading. 4. Amhorize the DIF change to become effective immediately through adoption of the Urgency ' Ordinance. Amhorize the expenditure of funds collected with the established Telegraph Canyon Sewer Pumped Flows DIF, in conjunction with the future fees, to be used to finance the improvements, en~neering studies and monitoring of the Telegraph Canyon Trunk Sewer and the Poggi Canyon Basin Sewer Interceptor. Urgency Ordinance The Urgency Ordinance will enable the City to collect the Fee during the 60-day waiting period for the re~m.~Iar Ordinance to become effective. This Urgency Ordinance is only valid for 30 days and therefore, it will be necessary to notice and hold a second and third hearing in order to extend the Urgency Ordinance in 30-day increments until the permanent Ordinance becomes effective. Approval of 4/5th'S vote will be needed for all Urgency Ordinances. Staff recommends that the Pumped Sewer Development Impact Fee go into effect in-maediately by adopting the Urgency Ordinance in order that the City have the option of using either the Telegraph Canyon Trunk Sewer or the Pog~ Canyon Basin Sewer Interceptor to provide sewer service to developments within the Pumped Flow Basin. Lrnmediate .implementation of this Fee is necessary due to the current and immediate'threat to public safely, which could arise from the pumped flows remaining in the Telegraph Canyon Trunk Sewer beyond the threshold capacity of the trunk sewer system. Exceeding the threshold capacity could result in overflow of the sewer line, and failure of the sewer system. The prospect ora sewage spill, and the resulting impacts constitutes a current and immediate threat to public health, welfare and safety that justifies the irmmediate imposition ofth/s Fee and amendment of Ordinance 2582. Page 8, Item oQ~ Meeting Date 10/22/02 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 statutory exemption pursuant to Section 15282(I) of the State CEQA Guidelines. Thus, no further environmental review is necessary. FISCAL IMPACT: Passage of these Ordinances will result in revenues of approximately $902,700. The fee will be adjusted annually to reflect the varying cost of constmctlon, inflation and any changes in proposed development within the Basin. These revenues would' be used for the construction and other related costs of the improvements needed to the Telegraph Canyon Trunk Sewer and the Poggi Canyon Basin Sewer Interceptor as a consequence of the additional conveyance of pumped flows. Attachments: Exhibit 1: Ordinance 2582, establishing the Tele~aph Canyon Sewer Pumped Flows Development Impact Fee. Plan showing the Proposed Re-routing of Pumped Flows to the Poggi Canyon Basin Sewer Interceplor. Exhibit 3: Pumped Sewer Development Impact Fee-Engineering Study Exhibit 4: Pumped Flow Basin for the Poggi Canyon Basin Sewer Interceptor. J:\Engine~.&GE~NDA\Purnped Flow Agenda Statement.sh.flo¢ Last pr/nt~ 10/I 6;02 3:37 PM ORDINANCE NO. 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 placed Ordinance No. 2885 on first reading on October 22, 2002 amending Ordinance No 2582, adding the Poggi Canyon Basin Sewer Interceptor as one of the facilities financed by the Telegraph Canyon Sewer Pumped Flows DIF and changing the name of the DIF to Pumped Sewer 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 City adopted Urgency Ordinance No. 2885-A, amending the Telegraph Canyon Sewer Pumped Flows Development Impact Fee, which will expire thirty (30) days after its adoption; 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 I5282(1) of the State CEQA Guidelines. Thus, no further enviromnental review is necessary; and, WHEREAS, State Law requires said Urgency Ordinance to be adopted by a four- fifths vote. Ordinance Page 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 sexvage 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 Plm~ 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~sg, the City Council has independently reviewed the "2002, Pumped Sewer Development Impact Fee EnRineering 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 City 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 arc fully described in the _1_99~3, "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 Enaineering 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 also 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,~!stud¥ and monitor such sewer- related facilities in the Telegraph Canyon Sewer Gravity Basin, as defined in Ordinance No. 2533, Section 2, Territory ("Gravity Basin"); and in the Poggi Canyon Sewer Basin, as defined in the 200_2,_~?umped Sewer Development Impact Fee Enginee~ Ordinance Page 4 Study"~, to accommodate sewage flows pumped into the Telegraph 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 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, Page 9 of 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, study, 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; A~nendment of Master Fee Schedule set forth in Section 10 of Ordinance 2582, shall be amended to read as follows: "SECTION 10. Amount of Fee; Ainendment of Master Fee Schedule. The Fee shall be calculated at the rate of $18~0 $560 per EDU. Chapter XV of the Master Fee Schedule is hereby amended to add Section B, which shall read as follows: pumped Sewer Telegraph r- ...... S ...... Pumped 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 19~93, "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 Stud¥"~. b. Rate per EDU. The Fee shall be calculated at the rate of $560 $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_l of the 2002, _"Pumped Sewer Development Impact Fee Engineering Study"~ ~7;.~,~ ..... ~, d. When Payable. Thc 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 1 I. Authority for Accounting and Expenditures. The Telegraph Canyon Sewer Basin Pumped Flows Development Impact Fee Fund (TCSBPF DIFt will be henceforth referred to as Pum~_e_d Sewer Development Impact Fee (PS D[F), The proceeds collected from the imposition of the Fee (PS DIF) shall be deposited into a public facility financing fund ( .... ~,*~t- ...... ~ v.. q ...... 12,~oi., D ...... .q ~1 ..... 1%,:.,,,=1 ..... * Impact Fee", "Pumped Sewer Development Impact Fee Fund" or alternatively herein "Fund" or "TCSBPF PS DIF Fund") ':,'kick ~° Eereby 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 an]ended to read as follows: "SECTION 13. Findings. 3-/7 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 of a 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 St_u~ 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 C~itv 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 Basi~n; 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 payment to adequately fund ongoing and future sewer improvements, flow monitoring and studies required in the Telegraph Canyon Trunk Sewer and Poggi C~anyon Basin Sewer Interceptor triggered by the pumped sewer flOWS." SECTION 11: That the Mandatory Oversizing of Facility; Duty to Tender Reimbursement Offer set forth in Section I5 of Ordinance 2582, shall be amended to read as follows: "SECTION 15. Mandatory Oversizing of Facility; Duty to Tender Reimbursement Off'er. 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 BackuF Plan 2002 "Pumped Sewer Dev~elopment Impact Fee Engineering Studv", 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 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 Backup Plan 2002, "Pumped Sewer Development [_mpact 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 Ge;'emment Cede Section 5~.995 law after the effective date of this ordinance. In accordance with Government Code Section 66020 (d) (1), the i3_inety-day approval period to which parties may 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 Ordinance Page 10 CEQA Guidelines Section 15273 15282 (ID." 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 shalI become effective immediately upon four-fifths vote. Presented by: Approved as to Form by: John P. Lippitt Director of Public Works )46¥mC"M. Kaheny City Attorney J:'/AttomeySole/pun~ped flow 2nd urgency oldinance sh.doc I asr p~inted No~ember 7, 2002 1:48 PM 15-2/ COUNCIL AGENDA STATEMENT Item ~ Meeting Date 11/19/02 ITEM TITI,E: Public Hearing To Consider Adoption Of An Ordinance Amending Chapter X (Building And Housing) Of The City's Master Fee Schedule By Increasing Building Permit Fees To Reflect Increased Construction Inspection Costs. Ordinance Of Thc City Of Chula Vista, California, Amending Chapter X (Building And Housing) Of The City's Master Fee Scl~eclule By Increasing Building Permit Fees To Reflect Increased Construction Inspection Costs. Resolution Of The City Of Chula Vista, California, Creating A New Classification Of Stoma Water Compliance Inspector In The CVEA Bargaining Unit; Amending The Fiscal Year 2003 Budget To Add Two Storm Water Compliance Inspectors, One Maintenance Worker IAI, And One Senior Maintenance Worker To Thc Public Works Department; Transferring $79,530 From Supplies And Services To Transfers Out In The Storm Drain Revenue Fund; Appropriating $114,652 For Personnel Services And Related Supplies And Services in The Public Works Department Based On Unanticipated Revenue From Transfers In From The Storm Drain Fund And Building Permit Fees; Transferring $22,100 From Supplies And Services To Capital In The FY03 Storm Drain Revenue Fund Budget To Purchase An Inspection Vehicle And Related Equipment; And Appropriating $20,600 From The Available Balance Of The Public Facilities Development hnpact Fee Fund For The Purchase Of Thc Second Inspection Vehicle. SUBMITTED BY: Director of Public Works {~ REVIEWED BY: City Manager"~?>~' eO'~ (4/5ths Vote: Yes X No__) As part of its strong commitment to promoting the health and safety of the community at large, the City of Chnla Vista currently requires and conducts a comprehensive set of building-related inspections on all new construction. The recent adoption of a new National Pollution Discharge Elimination System (NPDES) permit by the San Diego Regional Water Quality Control Board has created the need for extensive additional inspections to ensure that the city remains in compliance with the compulsory requirements of the permit. The city's current inspection staff is insufficient to carry out this increased workload and additional staffing is thcrefore required. StatT is recommending an adjustment to the building permit fees to reflect the increased costs associated with inspection of now construction. Meeting Date 11/19/02 RECOMMENDATION: That Council adopts an ordinance amending Chapter X (Building and Housing) of the City's Master Fee Schedule by increasing building permit fees to reflect increased construction iuspection costs. The increased fees will not exceed the estimated reasonable cost of providing the inspection as required by California Government Code section 66014. Also, that Council adopts a resolution creating a new classification of storm water compliance inspector m the CVEA bargaining unit; anmnding the fiscal year 2003 budget to add two storna water compliance inspectors, one maintenance worker I/I1, and one senior maintenance worker to the Public Works Department; transferring S79,530 fi-om supplies and services to transfers out in the storm drain revenue fund; appropriating $114,652 fur personnel services and related supplies and servcies in the Public Works Department based on unanticipated revenue from transfers in from the stoma drain fund and building permit fees; transfenqng $22,100 from supplies and services to capital in the fiscal year 2003 storm drain revenue fund budget to purchase an iuspection vehicle and a related equipmeut; and appropriating $20,600 from the available balance of the Public Facilities Development Impact Fee Fund for the purchase of tiao second inspection vehicle. BOARDS AND COMMISSIONS: In alnel~ding the existing fee schedule for building-related services (to account for increased inspection activity) staff adhered closely to the methodology adopted by Council on April 17, 2001 lbr updating these fees. City staff initially presented this methodology to the Board of Appeals and Advisors at their Dece~nber 12, 2000 meeting. City staff' incorporated the Board's suggestions into the methodology and made a second presentation to the Board at their March 12, 2001 meeting. As indicated in the minutes from this meeting (included as Attachment Aa, the Board unanimously supported the new methodology. DISCUSSION: Addition of Two Storm Water Compliance Inspectors On February 21,200l, the San Diego Regional Water Quality Control Board adopted a new National Pollutant Discharge Elimination System (NPDES) permit. Pursuant to the Federal Clean Water Act and tlm California Porter-Cologne Water Quality Control Act tile City of Chula Vista is obligated to ensure compliance with the requirements of tile new permit. One of the specific requirements imposed on the city by the permit pertains to tile inspection of high priority industrial, commercial, and municipal facilities; residential land uses and activities; and construction sites, including grading and building activities. //4 -2 Page 3, Item /~ Meeting Date 11/19/02 'File city's current inspections staff' is insufficient to carry out this additional workload. Staff therefore reconnnends that a new classification of Storm Water Compliance Inspector be created in the CVEA bargaining unit and that the Public Works Department be authorized to hire two additional staff in this new classification. The salary for thc new classification will be established at the Code Enforcement Officer II level. One of the two inspectors will focus primarily on NPDES-related inspections of in- progress construction projects. This includes all construction sites, both residential and non-residential. This inspector will visit construction sites on a regular basis and will concentrate on those sites that present a high probability of discharging pollution into the storm drain system. The second inspector will focus on existing non-residential developments as well as occasional inspections of established residential areas. This inspector xvill meet with non-residential property owners and managers and inspect tile lnanner in which stol-tn water runoff is affected by both their internal and external operatioas. The costs associated with the NPDES-related inspections' of in-progress construction projects will be recovered via an amendment to the fees currently assessed on new construction (Attachment B). The increased fees will not exceed the estimated reasonable cost of providing the inspection as required by California Government Code section 66014. It is recommended that the amended fee be based on building valuation because a clear nexus has been established between the costs of condncting these additional inspections and a building's valuation. Basing the new fee oil building valuation will improve equity among fee payers because building valuation accurately reflects the square footage, lot size, and other features that impact the level of stafl'effort required. Refinements to the new fee will be made as necessary and as additional data becomes available regarding the amount of effort required for various building valuations. Basing the fcc on valuation instead of charging on an hourly full cost recovery basis will also help keep record keeping costs at a minimum, resulting in a lower overall lee. The alncndment to tile fee schedule is expected to generate sufficient revennes to ol'fset the full costs of one storm water colnpliance inspector and 20% of the time spent on construction related issues by the existing civil engineer and assistant engineer in the Storn~ Water Managelnent Unit of the Public Works Department. Ensuring that the full costs of these inspections continue to be recovered in the future will necessitate periodically updating the valuation tables used by the city in order to keep pace ~vith inflationary factors. Furthernlore, additional changes to the fee structure could be necessary iu the future if either permit volume or the city's cost structure change significantly. In amending the existing fee schedule for building-related services (to account for increased inspection activity) staff adhered closely to the methodology adopted by Council on April 17, 2001 for updating these fees. Tile methodology adopted at that time was the cuhnination of a comprehensive review of all building-related permitting, H Page 4, Item ~ "'r Meeting Date 11/19/02 inspection and plan check services provided by the city and was fully supported by both the Board of Appeals and Advisors and the Building Industry Association (Attachment Addition of a Two Person Storm Drain Vacuum Truck Crew In addition to increased building inspection activities, the NPDES-permit mandates an annual maintenance schedule for all storm drainage systems, including inspection and removal of accumulated waste between May 1 and September 30 of each year and additional cleaning as necessary between October 1 and April 30 of each year. However, with ovcr 3,500 storm drain inlets and approximately 180 miles of storm sewer pipes in Chula Vista, the city's lone storm drain vacuum truck and crew are insufficient to meet the requirements of the permit. To address this shortcoming, Council recently approved the purchase of a second storm drain vacuum truck. The truck has now been purchased and a second two-person crew, comprised of a maintenance worker I/I1 and a senior maintenance worker, is required to operate the vehicle. The primary responsibility of this crew will be the cleaning of the city's storm drainage systems. However, in emergency situations they may be assigned to other duties. FISCAl, IMPACT: There will be no net impact to the general fund as a result of these actions. The cost of the two storm water compliance officers and related supplies and services is estimated at $70,244 for fiscal year 2003 and $145,344 for fiscal year 2004. The cost of one of these positions will be fully recovered fi'om unanticipated permit tee revenoes. The costs associated with the second position can be absorbed within the existing Stom~ Draiu Revenue NPDES Program budget. Staff xvill return to Council in the future with recommendations for additional fees for the inspection of existing properties and for properties foond to bc in violation of the permit. ri'he cOSt Ot' lhe two-person crew for operation of the storm drain vacuom truck is cstimatcd at $44,408 lbr fiscal year 2003 and $110,695 for fiscal year 2004. These costs also can be absorbed w'ithin the existing Stom~ Drain Revenue NPDES Program budget. The two-vehicles and one computer required for the storm water compliance officers represent a total one-time cost of $42,700. The cost of one vehicle and the computer can be absorbed within thc existing Storm Drain Revenue NPDES Program budget. The cost of the second vehicle will be funded from the unappropriated balance of the Public Facilities Development Impact Fee fund. Attachmcnts A. B. Minutes of 3/12/01 Mecting ol'Board ol'Appeals and Advisors. National Pollution Discharge Elimination System (NPDES) Permit Fee New Constroction. Letter from BIA dated 2/27/01. H:teNGINEER\NPDESFee Agenda Statement v131 .doc TACHMENT A: March 12, 2001 M~NUTES FROM MARCH 12, 2001 BOARD OF APPEALS AND ADVISORS MEETING MINUTES OF A REGULAR MEETING BOARD OF APPEALS AND ADVISORS CITY OF CHULA VISTA, CALIFORNIA Conference Room No. 1 5:15 p.m. MEIvIBERS PRESENT: MErv1BERS ABSENT: CiTY STAFF PRESENT: Chairman O'Neill, Vice-Chairman Monaghan, Board Members Compton, Kaya, Romo, and Triplette None Assistant Director Remp, Deputy Building Official Murdoch, Plan Check Engineer EI-Khazen, Administrative Office Assistant Michel, Director of Budget and Analysis Fruchter, and Senior Management Analyst Van Eenoo CALL MEETING TO ORDER: ROLL CALL: Chairman O'Neill called the meeting to order at 5:15 p.m. Members present constituted a quorum. DECLARATION OF EXCUSED/UNEXCUSED ABSENTEEISM: N/A APPROVAL OF MINUTES: MSUC Triplette/Compton (6-0) to approve the minutes of December 11, 2000. NEW BUSINESS: A. Formal Approval of New F~ Assistant Director Remp stated that although the agenda says "Formal approval of new fees," the formal approval would be from the City Council, and the request is the formal recommendation and authorization to take the new fee schedule to the City Council. The draft of the Council Agenda Statement was included in Agenda package. Chairman O'Neill asked a question regarding recovery of Fire Department fees in regards to non-recurring fees and annualized inspections. The question was answered by Asst. Director Remp and Director Fruchter. Board Member Compton questioned how money being taken out of the general fund would be replaced. Director Fruchter stated that the budget for next year reflects the level of fees being recommended. It balances the cost of revenue. Board of Appeals & Advisors -2- March 12, 2001 A brief discussion was held on simplifying the process for getting similar type permits, such as water heaters. Chairman O'Neill asked if there were additional questions. After hearing none, a motion was made to recommend that City Council adopt the new fee schedule. MSUC Romo/O'Neill (6-0) to make recommendation to City Council to adopt the new fee schedule, CHAIRMAN'S COMMENTS/REPORT: Chairman O'Neill wanted to commend the Building Division for enlisting the help of one of the PhotoVoltaic producers/installers to write specifications on a book on PhotoVoltaic Systems. BUILDING OFFICIAL'S COMMENTS/REPORT: Asst. Director Remp informed the Board that he was unable to attend the CALBO conference. Sue Gray, Code Enforcement/Permits Manager, did attend in Brad's place. She has put together a notebook on the kinds of things that are going on at the State level. Energy Standards have been adopted and will have an impact on us. Effective date for new construction is June 1, 2001, except for phases that are under construction. Effective date for those are January 1, 2002. COMMUNICATIONS (PUBLIC REMARKSANRITTEN CORRESPONDENCE): None ADJOURNMENT: Chairman O'Neill adjourned the meeting at 5:40 p.m. to the next regular meeting scheduled for April 9, 2001. BRAD REMP, C.B.O.//-/ ASST. DIR. OF PLAI~NING & BUILDING I BUILDING OFFICIAL SECRETARY TO THE BOARD OF APPEALS AND ADVISORS MINUTES TAKEN BY: KAREN SEITER SECRETARY PLANNING & BUILDING DEPARTMENT (A:\31Z200 lrn.doc} ATTACHMENT B: NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT FEE FOR NEW CONSTRUCTION Fees for processing and inspecting NPDES pernfits for new construction shall be as follows: TOTAL VALUATION COMBINATION INSPECTION / PERMIT PROCESSING FEE $100,000 to $500,000 $88.00 for the first $100,000.00 plus $36.00 for each additional $100,000.00 or fraction thereof, to and including $500,000.00 $500,00l .00 and up $232.00 for the first $500,000.00 plus $21.00 for each additional $100,000.00 or fraction thereof ATTACHMENT B: NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM (NPDES) PER. lIT FEE FOR NEW CONSTRUCTION Fees for processing and inspecting NPDES permits for new construction shall be as follows: TOTAL VALUATION COMBINATION INSPECTION / PERMIT PROCESSING FEE $100,000 to $500,000 $88.00 for the first $100,000.00 plus $36.00 for each additional $ 100,000.00 or fraction thereof, to and including $500,000.00 $500,001.00 and up $232.00 for the first $500,000.00 plus $21.00 for each additional $100,000.00 or fraction thereof FATTACHMENTC: BUILDING INDUSTRY ASSOCIATION LETTER OF ENDORSEMENT ww'w.bIaamnd~.org BUILDING INDUSTRY ASSOCIATION O1~ SAN DIEGO COUNTY February 27, 2001 PRE~DENT Broololeid Hom~ PRESIDENT Fenlon Compm-~/ , REASU;- - ~-~S ECRETARY Kent Aden The ~my Pmrmh Com~,ny Dave Rowhmds City Manager Ci~ of Chula Vista' 276 Foarth Averme ChuIg Vista, CA 9~910 Re: Building Fee SP.~y IN' ~ EDIATF_. PAST Celln ~id Ccl~i=- C~mmunfflas, Inc. EX_=CLrT1VE V.SE PRESIDENT Paul A. Tm/on D~ Dave, Th". Building IndusrrS, Association has reviewed the draft study of Bu'.'idin~ Permits end R. el~ fi-mt time we will be su~oxing your proposed tee revisions when they mm ~esented to your I wa_ut tc offer my skncere '.ImmJcs ta you sad your staff fcr responding to ~e B~'s request f~r L~s r~vi~. I believe it once a~n hi~i~ d~e co~tive ~,~ cf om r*lmiomkip wi~ ~e ci~ of Chuls V~. I look fo~d to conr~ng this go~ rtl~iom~ ~ we move lo.md on ~e m~y o~ ~sues f~ing ~e ~e ~velopmmt of Chula V/s~. / Jerry Livm~t=n Staff Counsel BuJkEug Industry. Associ~Iion cc: George Krempl, Assialam City M.n.ger Brad Rmmp, Building Director Sheryl Fmcht~r, Director of Budge! and ,Smalys~ ORDINANCENO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHAPTER X (BUILDING AND HOUSING) OF THE CITY'S MASTER FEE SCHEDULE BY INCREASING BUILDING PERMIT FEES TO REFLECT INCREASED CONSTRUCTION INSPECTION COSTS WHEREAS, as part of its strong commitment to promoting the health and safety of the comlnunity at large, the City of Chula Vista currently requires and conducts a comprehensive set of building-related inspections on all new construction; and WHEREAS, the recent adoption ora new National Pollution Discharge Elimination System (NPDES) permit by the San Diego Regional Water Quality Control Board has created the need for extensive additional inspections to ensure that the city remains in compliance with the compulsory requirements of the permit; and WHEREAS, the city's current inspection staff is insufficient to carry out this increased workload and additional staffing is therefore required; and WHEREAS, staff is recommending an adjustment to the building permit fees to reflect the increased costs associated with inspection of new construction; and WHEREAS, the increased fees will not exceed the estimated reasonable cost of providing the inspection as required by California Government code Section 66014. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as follows: SECTION I: Findings. The City Council finds, after consideration of the evidence presented to it, that certain amendments for processing and inspecting pursuant to Chapter X of the City's Master Fee Schedule are necessary in order to assure that fees related to building permitting and inspections provided by thc City are actually based on current operations, development volume and service provision costs and that such costs are applied equitably to those receiving City services. SECTION 2. Chapter X (Building and Housing) of the City's Master Fee Schedule is hereby amended as set forth in Attachment A, attached hereto and incoq*orated by reference as if set forth in full. SECTION 3. 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 within 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 4. This ordinance shall become effective on the sixtieth day from and after its adoption Presented by: Approved as to form by: John P. Lippitt Director of Public Works Johr~. ~a~ny City Attorney ATq ACtiMENT A I. NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT FEE FOR NEW CONSTRUCTION Fees for processing and inspecting NPDES permits for new construction shall be as follows: TOTAL VALUATION COMBINATION INSPECTION / PERMIT PROCESSING FEE $100,000 to $500,000 $88.00 for the first $100,000.00 plus $36.00 for each additional $100,000.00 or fraction thereof, to and including $500,000.00 $500,001.00 and up $232.00 for the first $500,000.00 plus $21.00 for each additional $100,000.00 or fraction thereof RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CREATING A NEW CLASSIFICATION OF STORM WATER COMPLIANCE INSPECTOR IN THE CVEA BARGAINING UNIT; AMENDING THE FY 2003 BUDGET TO ADD TWO STORM WATER COMPLIANCE INSPECTORS, ONE MAINTENANCE WORKER 1/11 AND ONE SENIOR MAINTENANCE WORKER TO THE PUBLIC WORKS DEPARTMENT; TRANSFERRING $79,530 FROM SUPPLIES AND SERVICES TO TRANSFER OUT IN THE STORM DRAIN REVENUE FUND; APPROPRIATING $114,652 FOR PERSONNEL SERVICES AND RELATED SUPPLIES AND SERVICES IN THE PUBL1C WORKS DEPARTMENT BASED ON UNANTICIPATED REVENUE FROM TRANSFER IN FROM THE STORM DRAIN FUND AND BUILDING PERMIT FEES; TRANSFERRING $22,100 FROM SUPPLIES AND SERVICES TO CAP1TAL IN THE FY03 STORM DRAIN REVENUE FUND BUDGET TO PURCHASE AN INSPECTION VEHICLE AND RELATED EQUIPMENT; AND APPROPRIATING $20,600 FROM THE AVAILABLE BALANCE OF THE PUBLIC FACILITIES DEVELOPMENT IMPACT FEE FUND FOR THE PURCHASE OF THE SECOND INSPECTION VEHICLE WHEREAS, as part of its strong commitment to promoting the health and safety of the community at large, the City of Chula Vista currently requires and conducts a comprehensive set of building-related inspections on all new construction; and WHEREAS, the recent adoption of a new National Pollution Discharge Elimination System (NPDES) permit by the San Diego Regional Water Quality Control Board has created the need for extensive additional inspections to ensure that the city remains in compliance with the compulsory requirements of the permit; and WHEREAS, the city's current inspection staff is insufficient to carry out this increased workload, therefore, staff recommends that a new classification of Storm Water Compliance Inspector be created in the CVEA bargaining unit and that the Public Works Department be authorized to hire two additional staff in this new classification with the salary for the new classification being established at the Code Enforcement Officer II level. NOW, THEREFORE, BE IT RESOLVED that the City Council of City of Chula Vista does hereby create a new classification of Storm Water Compliance Inspector in the CVEA bargaining unit; amend the FY 2003 budget to add two Storm Water Compliance Inspectors, one Maintenance Worker 1/II and one Senior Maintenance Worker to the Public Works Department; transfer $79,530 from Supplies and Services to transfer out in the Storm Drain Revenue Fund; appropriate $114,652 for Personnel Services and related supplies and services in the Public Works Department based on unanticipated revenue from transfer in from the Storm Drain Fund and building permit fees; transfer $22,100 from Supplies and Services to capital in the FY03 Storm Drain Revenue Fund budget to purchase an inspection vehicle and related equipment; and appropriate $20,600 from the available balance of the Public Facilities Development Impact Fee Fund for the purchase of the second inspection vehicle Presented by Approved as to form by John P. Lippitt Director of Public Works ~loh~l~l~aheny City Attorney tq -Iq-