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Agenda Packet 2003/02/18
CITY COUNCIL AGENDA February 18, 2003 6:00 p.m. Council Chambers Public Services Building 276 Fourth Avenue, Chula Vista CIIY OF CHUIA VISTA City Council City Manager Patty Davis David D. Rowlands, Jr. John McCann City Attorney Jerry R. Rindone John M. Kaheny Mary Salas City Clerk Stephen C. Padilla, Mayor Susan Bigelow The City Council meets regularly on the first calendar Tuesday at 4:00 p.m. and on the second, third and fourth calendar Tuesdays at 6:00 p.m. Regular meetings may be viewed at 7:00 p.m. on Wednesdays on Cox Cable Channel 24 or Chula Vista Cable Channel 68 AGENDA February 18, 2003 6:00 P.M. CALL TO ORDER ROLL CALL: Councilmembers Davis, McCann, Rindone, Salas, and Mayor Padilla PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY · OATH OF OFFICE: DAVID KROGH - GROWTH MANAGEMENT OVERSIGHT COMMISSION · PRESENTATION BY MAYOR PADILLA OF A PROCLAMATION TO EILEEN ZAMORA, MOUNTED RESERVE OFFICER, AND BURDELLA THOMAS, RESERVE SERGEANT, PROCLAIMING MARCH 1, 2003 AS LAW ENFORCEMENT POLICE RESERVE AND MOUNTED OFFICER DAY 1N THE CITY OF CHULA VISTA CONSENT CALENDAR (Items 1 through 12) The Council will enact the staff recornrnendations regarding the following items listed under the Consent Calendar by one motion, without discussion, unless a Councilmernber, 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 frorn the Consent Calendar will be discussed after Action Items. Items pulled by the public will be the ftrst items of business. 1. APPROVAL OF MINUTES of February 11, 2003. Staff recommendation: Council approve the minutes. 2. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A PEDESTRIAN BRIDGE DEVELOPMENT IMPACT FEE PROGRAM FOR OTAY RANCH VILLAGE 11 AND THE AREA OF BENEFIT (SECOND READING AND ADOPTION) The Otay Ranch Village 11 tentative map conditions of development require the establishment of a Development Impact Fee (DIF) or other funding mechanism to construct two pedestrian bridges to serve Village 11. The developer (Brookfield Shea Otay, LLC) has requested the formation of a Development Impact Fee. Adoption of the ordinance approves funding for fifty percent of the cost of two bridges for Village 11, one crossing Hunte Parkway, and one crossing Eastlake Parkway. The remaining cost of these bridges will be funded by the adjacent projects as a condition of development. The total cost estimate for the Eastlake Parkway and Hunte Parkway bridges are $1,254,000 and $2,131,000 respectively. The fee, payable at issuance of a building permit, will be $831 per single-family detached dwelling unit and $616 per multiple-family dwelling. (Director of Engineering) Staff recommendation: Council place the ordinance on second reading for adoption. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA RATIFYING THE ACTION OF THE CITY MANAGER, APPROVING CHANGE ORDER NO. 4 FOR PHASE III OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR PROJECT (SW219), AND AUTHORIZING THE DIRECTOR OF ENGINEERING TO EXECUTE SAID CHANGE ORDER ON BEHALF OF THE CITY The City Council previously awarded a contract in the amount of $8,432,382.60 (plus contingencies of $845,000.40) to Cass Construction, Inc., for the construction of Phase III of the Salt Creek Trunk Sewer line, from Interstate 805 to east of the Hanson Quarry. Change Order No. 4 is for additional labor, equipment, and materials necessary for the upsizing of an approximately 9,400 foot-long segment of the Salt Creek Gravity Sewer Interceptor, improving the long-term operational efficiency of this segment of the sewer. (Director of Engineering) Staffrecoinmendation: Council adopt the resolution. 4A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING A BOUNDARY MAP SHOWING THE BOUNDARIES OF THE TERRITORY PROPOSED FOR INCLUSION IN PROPOSED COMMUNITY FACILITIES DISTRICT NO. 09-M (VILLAGE 11, BROOKFIELD SHEA OTAY) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING ITS INTENTION TO ESTABLISH COMMUNITY FACILITIES DISTRICT NO. 09-M (VILLAGE I1, BROOKFIELD SHEA OTAY) AND TO AUTHORIZE THE LEVY OF A SPECIAL TAX THEREIN TO FINANCE CERTA1N SERVICES C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING AND DIRECTING THE PREPARATION OF A COMMUNITY FACILITIES DISTRICT REPORT FOR PROPOSED COMMUNITY FACILITIES DISTRICT NO. 09-M (VILLAGE 11, BROOKFIELD SHEA OTAY) Brookfield Shea Otay has requested that the City conduct proceedings to consider the approval of the formation of Community Facilities District No. 09-M (CFD No. 09-M). This district will fund the perpetual operation and maintenance of slopes, medians and parkways and storm water treatment facilities associated with Village 11. The City has retained the services of MuniFinancial as special tax consultant and Best Best and Krieger, LLP as legal counsel to provid6 assistance during the proceedings. Adoption of the resolutions initiates the formal proceedings to establish CFD No. 09-M. (Director of Engineering) Staffrecommendation: Council adopt the resolutions. 5 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING A BOUNDARY MAP SHOWING THE BOUNDARIES OF THE TERRITORY PROPOSED TO BE ANNEXED INTO COMMUNITY FACILITIES DISTRICT NO. 97-2 B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING ITS INTENTION TO ANNEX TERRITORY INTO COMMUNITY FACILITIES DISTRICT NO. 97-2 AND TO AUTHORIZE THE LEVY OF A SPECIAL TAX THEREIN TO FINANCE CERTAIN SERVICES Page 2 - Council Agenda 02/18/03 Brookfield Shea Otay has requested that the City conduct proceedings to consider the annexation of territory into Community Facilities Disthct No. 97-2 (Preserve Maintenance District) (CFD 97-2), and that such territory he designated as Improvement Area C of CFD 97-2. The conditions of approval of the tentative map for Village 11 (Brookfield Shea Otay) require that said annexation be completed prior to issuance of the first production home building permit. CFD 97-2 was formed in 1998 and funds the maintenance of areas that have been conveyed to the preserve in accordance with the Otay Ranch Resoume Management Plan. Adoption of the resolutions initiates the formal proceedings to annex Village 11 into CFD 97-2 and designates the territory as Improvement Area C. (Director of Engineering) Staff recommendation: Council adopt the resolutions. 6. RESOLUTION OF THE CITY COLrNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2002/2003 ENGINEERING DEPARTMENT BUDGET, DELETING ONE CIVIL ENGINEER POSITION, AND ADDING ONE SENIOR MANAGEMENT ANALYST POSITION (4/5THS VOTE REQUIRED) The nature of the work being performed by a Civil Engineer within the Administrative & Fiscal Services Division of Engineering has evolved such that the Civil Engineer now performs work of a predominately fiscal and analytical nature. These tasks and duties are mom appropriately performed by a Senior Management Analyst. (Director of Engineering) Staff recommendation: Council adopt the resolution. 7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA MAINTAINING THE EXISTING CITY INVESTMENT POLICY AND GUIDELINES The City has an existing Investment Policy and Guidelines to ensure the prudent management of idle cash. State law requires that the Investment Policy and Guidelines be adopted by resolution on an annual basis after being reviewed to ensure consistency with the overall objectives of preservation of principal, liquidity, and yield, and its relevance to current law and financial and economic trends. (Assistant City Manager Powell) Staff recommendation: Council adopt the resolution. 8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE 401(A) DEFERRED COMPENSATION PLAN AND AUTHORIZING THE DIRECTOR OF FiNANCE TO EXECUTE THE AMENDED PLAN ADOPTION AGREEMENT WITH THE PLAN ADMINISTRATOR The Council approved a deferred compensation plan pursuant to Internal Revenue Code Section 401(a) for certain employees effective January 2002. Staff recommends that the plan be amended to implement changes in the compensation package for the City Manager recently approved by the Council. (Assistant City Manager Powell) Staffrecommendation: Council adopt the resolution. Page 3 - Council Agenda 02/18/03 9. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE F1NANCE DIRECTOR TO DETERMINE THE FEASIBILITY OF REFUNDING THE 1993 TOWN CENTRE II PARKING STRUCTURE REFUNDING CERTIFICATES OF PARTICIPATION, 1993 CERTIFICATE OF PARTICIPATION TOWN CENTRE II PARKING STRUCTURE PHASE II, AND THE 1998 CAPITAL LEASE WITH CAL-LEASE PUBLIC FUNDING CORPORATION ON A NEGOTIATED BASIS; WAIV1NG THE CONSULTANT SELECTION PROCESS, APPOINTING U.S. BANCORP PIPER JAFFRAY INC. AS THE UNDERWRITER; AND AUTHORIZING THE MAYOR TO EXECUTE THE CONTRACT U.S. Bancorp Piper Jaffray Inc. has proposed a refunding of two outstanding Certificate of Participation issues and a capital lease obligation. Based on preliminary projections, the refunding would provide a savings of $1.4 million, due to historically low interest rates. (Assistant City Manager Powell) Staff recommendation: Council adopt the resolution. 10 A. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING CHAPTER 2.56 OF THE CHULA VISTA MUNICIPAL CODE TO MODIFY PURCHASiNG PROCEDURES B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING REVISED CONSULTANT SELECTION PROCEDURES CONTAINED iN COUNCIL POLICY 102-5 Adoption of the ordinance and resolution modifies purchasing procedures by increasing buying limits and authority to further facilitate the purchasing process. The proposed changes also allow for Intemet-based advertising, receipt of bids, and cooperative purchasing with other public agencies within the United States. (Assistant City Manager Powell) Staff recommendation: Council place the ordinance on first reading and adopt the resolution. 11. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AFFORDABLE HOUSiNG AGREEMENT RELATED TO OTAY RANCH VILLAGE 11 BETWEEN THE CITY AND BROOKFIELD SHEA OTAY, LLC AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT As a condition of approval for the Otay Ranch Village 11 Sectional Planning Area Plan and the tentative map, the developer, Brookfield Shea Otay, LLC, must enter into an affordable housing agreement with the City prior to recordation of its first final map for purposes of further implementing its affordable housing obligation for Otay Ranch Village 11. To comply with this condition, an agreement for the project has been prepared for Council's consideration and approval. (Director of Community Development) Staff recommendation: Council adopt the resolution. Page 4 - Council Agenda 02/18/03 12 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE JOINT USE AGREEMENT WITHIN THE SAN DIEGO COUNTY WATER AUTHORITY EASEMENTS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION, AND NATIONAL POLLUTANT DISCHARGE ELiMINATION SYSTEM (NPDES) COMPLIANCE AGREEMENT BETWEEN THE CITY AND BROOKFIELD SHEA OTAY COMPANY LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO. 1; ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE VARIOUS PUBLIC STREETS AND EASEMENTS, ALL AS GRANTED ON SAID MAP WITHIN SAiD SUBDIVISION; ACKNOWLEDGING ON BEHALF OF THE CITY OF CHULA VISTA THE IRREVOCABLE OFFER OF DEDICATION FOR LOT "J" FOR PUBLIC PARK PURPOSES; ACKNOWLEDGING ON BEHALF OF THE CITY OF CHULA VISTA ALL IRREVOCABLE OFFERS OF DEDICATION FOR OPEN SPACE LOTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION; APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT D. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO.1, REQUIRING BROOKFIELD SHEA OTAY COMPANY LLC TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2001-364, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT E. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11 "A" MAP NO. 1, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAINTENANCE OF PRIVATE LANDSCAPING WITHIN PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT F. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SLOPE AND DRAINAGE MAINTENANCE AGREEMENT FOR EASTLAKE PARKWAY BETWEEN STATIONS 11+76.43 AND 22+37.30 WITH BROOKFIELD SHEA OTAY LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (DEVELOPER), ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAINTENANCE OF SLOPES AND DRAINAGE WITHIN PUBLIC RIGHT-OF-WAY AND CITY EASEMENTS, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Page 5 - CouncilAgenda 02/18/03 Adoption of the resolutions approves the first final map, the subdivision improvement agreement, and supplemental subdivision improvement agreement for Otay Ranch Village 11, commonly known as "Windingwalk." Adoption of the resolutions also approves the Otay Ranch, Village 11 water quality basins, desiltation, National Pollutant Discharge Elimination System Compliance (NPDES) agreement, grant of easements and maintenance agreement for homeowner association maintenance within public right-of- way, and slope and drainage maintenance agreement for maintenance of a temporary slope on the west side of Eastlake Parkway between stations 11+76.43 and 22+37.30. (Director of Engineering) Staff recommendation: Council adopt the resolutions. 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. PUBLIC HEARING 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 ESTABLISHING UTILITY UNDERGROUNDING DISTRICT NO. 137 ALONG J STREET, FROM BROADWAY TO HILLTOP DRIVE On January 21, 2003, the Council adopted Resolution No. 2003-020 and ordered a public heating to be held on this date to determine whether the public health, safety or general welfare requires the formation of a utility underground district along J Street from Broadway to Hilltop Drive. The purpose of the district is to require the utility companies to underground all overhead lines and remove all existing wooden utility poles within the district. The proposed district is approximately 4,000 feet long and is estimated to cost approximately $1,000,000. SDG&E's allocation funds will be used to cover the cost of the project, including reimbursements to affected property owners for their respective trenching costs. (Director o f Engineering) Staff recommendation: Council conduct the public heating and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING UTILITY UNDERGROUNDING DISTRICT NO. 137 ALONG J STREET, FROM BROADWAY TO HILLTOP DRIVE, AND AUTHORIZING THE EXPENDITURE OF UTILITY ALLOCATION FUNDS TO SUBSIDIZE PRIVATE SERVICE LATERAL CONVERSION Page 6 - Council Agenda 02/18/03 ACTION ITEM The items listed in this section of the agenda will be considered individually by the Council, and are expected to elicit discussion and deliberation. If you wish 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. 14. CONSIDERATION OF ADOPTION OF RESOLUTIONS APPROVING AGREEMENTS NECESSARY TO DESIGN AND CONSTRUCT RENOVATIONS TO THE CITY'S CIVIC CENTER COMPLEX, PURSUANT TO THE PREVIOUSLY APPROVED MASTER PLAN, AND DECLARING THE CITY'S INTENTION TO NOTICE TAX-EXEMPT OBLIGATIONS FOR THIS PROJECT The City Council previously approved the master plan for the renovations to the Civic Center, including City Hall, the Public Services Building, the current Police Department, and the demolition of the Legislative Building and Community Development building. This project will be undertaken in phases and will take four to five years to complete. (Director of Building and Park Construction) Staffrecommendation: Council adopt the following resolutions: A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE CITY MANAGER'S CERTIFICATION OF SOLE SOURCE STATUS, APPROVING A DESIGN BUILD AGREEMENT WITH HIGHLAND PARTNERSHIP, 1NC. FOR THE PROVISION OF SERVICES REQUIRED TO DESIGN AND CONSTRUCT RENOVATIONS TO THE CITY'S CIVIC CENTER COMPLEX, PURSUANT TO THE MASTER PLAN, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT, AND APPROPRIATING $3,820,450 FROM THE AVAILABLE BALANCE OF THE PUBLIC FACILITIES DEVELOPMENT 1MPACT FEE FUND TO FINANCE THE PRE-CONSTRUCTION PHASE OF THE PROJECT (4/5THS VOTE REQUIRED) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A CONSULTANT SERVICES AGREEMENT WITH ALLEGIS DEVELOPMENT SERVICES, INC. FOR PROJECT MANAGEMENT/CITY'S REPRESENTATIVE SERVICE WITH RESPECT TO THE RENOVATIONS TO THE CITY'S CIVIC CENTER COMPLEX, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING THE CITY'S INTENTION TO ISSUE TAX-EXEMPT OBLIGATIONS TO FINANCE THE RENOVATIONS TO THE CITY'S CIVIC CENTER COMPLEX, AND DIRECTING STAFF TO RETURN WITH A FINANCING PLAN Page 7 - Council Agenda 02/18/03 ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 15. CITY MANAGER'S REPORTS 16. MAYOR'S REPORTS A. Ratification of appointment to the Child Care Commission - Nancy Kerwin (ex- officio member) B. Discussion regarding the Violence Against Children Act 17. COUNCIL COMMENTS ADJOURNMENT to an Adjourned Regular Meeting of the City Council and Redevelopment Agency with the Board of Port Commissioners on February 25, 2003 at 9:00 a.m., at the San Diego Unified Port District, Administration Building, 3165 Pacific Highway, thence to an Adjourned Regular Meeting on February 28, 2003 at 4:00 p.m., at the Chula Vista Nature Center, 1000 Gunpowder Point Drive, thence to an Adjourned Regular Meeting on March 1, 2003 at 8:00 a.m. at the Chula Vista Nature Center, and thence to the Regular Meeting of March 4, 2003, at 4:00 p.m. in the Council Chambers. Page 8 - CouncilAgenda 02/18/03 ORDINANCE NO. I?,~O' ~5\O~ CHULA VISTA ESTAI}_~G A PEDESTRiAN BRIDGE DEVELOP~I~'NT IMPACT FEE PROGRAM FOR OTAY RANCH VILLAGE 11 AND THE AREA OF BENEFIT WHEREAS, the City's General Plan Land Use and Public Facilities Elements require that adequate public facilities be availabl= to accommodate increased population created by new development; and WHEREAS, the City Council has determined that new development within certain areas within the City of Chula Vista as identified in this ordinance, will create adverse impacts on certain existing public facilities which must be mitigated by the financing and construction of those facilities identified in this ordinance; and WHEREAS, developers of land within the City are required to mitigate the burden created by their development by constructing or improving those facilities needed to provide service to their respective developments or by the payment of a fee to finance their portion of the total cost of such facilities; and WHEREAS, development within the City contributes to the cumulative burden on pedestrian 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; and WHEREAS, the goal of the Otay Ranch General Development Plan is to organize land uses based upon a village concept to produce a cohesive, pedestrian friendly community, encourage non vehicular trips and foster interaction amongst residents; and WHEREAS, a component al' the Otay Ranch circulation system is a comprehensive trail system to provide for non-vehicular alternative modes of transportation; and WHEREAS, the Otay Ranch GDP requires a non-auto circulation system, such as pedestrian walkways and bike paths, shall be provided between villages. And, where appropriate and feasible grade separated arterial crossit~gs should be provided to encourage pedestrian activity between villages; and WHEREAS, the Otay Ranch Village Eleven SPA Plan also identifies two potential pedestrian bridges in Village 11; and Ordinance 2003 - Page 2 WHEREAS, the Conditions of Approval for Otay Ranch Village 1 l tentative maps require that a funding mechanism be established to pay for Village 11 bridges; and WHEREAS, pedestrian facilities have been built, or are proposed, that will connect Village 11 trail system to the planned pedestrian trail system in Village 10 (University Village), and to the pedestrian trail system within Planning Areal2 (Freeway Commercial/Easter Urban Center) including a continuous village pathway and cartpath system. The pedestrian facilities cross major streets and their use would be encouraged and facilitated by the provision of over-crossings of these major streets; and WHEREAS, land within Village 11 will benefit from the installation of these bridges primarily due to: (i) its location and proximity to the bridge, and (ii) its ease of access to the bridge based on the trail configuration; and WHEREAS, the completion of the pedestrian bridges in Village I 1 will complete the linkage of the pedestrian facilities in Village 1 I, serving to enhance overall pedestrian access in and among the nearby Villages and would be facilitated by including the funding for the construction of the bridges required by the Village 11 tentative maps in current Impact Fee program by: 1) establishing the per unit fees payable at issuance of a building permit; 2) identifying the facilities to be financed by the Impact Fee; and 3) establishing the territory to which the Impact Fee is applicable to include Village 11; and WHEREAS, the person per dwelling unit rates for Parkland Dedication in Sec. 17.10.040 were modified by Ordinance No. 2886. The rates for single family went from 3.22 persons per unit to 3.52 persons per unit and the multiple-family rates went from 2.21 persons per dwelling units to 2.61 persons per unit. The attached, cluster housing or planned unit development and the duplex categories were deleted from Sec. 17.10.040; and WHEREAS, Otay Ranch, Village 11 is that area of land within the City of Chula Vista surrounded by Olympic Parkway, Hunte Parkway, Eastlake Parkway, Birch Road, and SR-125. This area is shown on the map marked Exhibit "1," and included as an attaclunent to the City of Chula Vista Pedestrian Bridge Development Impact Fee Report 1hr Otay Ranch Village 11, dated February 1, 2003, on file in the Office of the City Engineer; and WHEREAS, City Engineering Staff has approved the City of Chula Vista Pedestrian Bridge Development Impact Fee Report for Otay Ranch Village 11, dated February 1, 2003; and. WHEREAS, said Report, recommends pedestrian over-crossing facilities needed for pedestrian access, and establishes a fee payable by persons obtaining building permits for developments within Otay Ranch Village 11 benefiting from the construction of these thcilities; and WHEREAS, there are two pedestrian overcrossings (POC) proposed for the Otay Ranch Village 11: Hunte Parkway POC and Eastlake Parkway POC. The Hunte Parkway Ordinance 2003 - Page 3 POC crosses Hunte Parkway, a Prime Arterial/Ranch Theme street, to provide access to University site. The bridge is aligned with one of the Village 11 pathways that provide pedestrian access throughout the Otay Ranch Community, with an approximate length of 556 feet. The Eastlake Parkway POC is located approximately 350' north of the intersection with Hunte Parkway, and has a total length of approximately 295'. It crosses Eastlake Parkway, a Prime Arterial/Ranch Theme street, providing access to Planning Area 12 located to the east; and WHEREAS, a series of meetings have been held with the owner and developer of properties located within Otay Ranch Village I 1 to discuss the Report and city staff recommendations establishing the Otay Ranch Village 11 Pedestrian Bridge Development Impact Fee; and WHEREAS, the City Council determined, based upon the evidence presented at the Public Hearing, including, but not limited to, the Report and other information received by the City Council in the course of its business, that imposition of the Impact Fee on all developments within Otay Ranch Village ! 1 in the City of Chula Vista is necessary in order to protect the public safety and welfare and to ensure effective implementation of the City's General Plan; and WHEREAS, the City Council has determined that the amount of the Impact Fee levied by this ordinance does not exceed the estimated cost of providing the public facilities identified by the Report. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES ORDAIN AS FOLLOWS: SECTION 1. Environmental Review WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity lbr 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. Although environmental review is not necessary at this time, environmental review will be required prior to the approval of final design plans and the awarding of construction contracts for facilities funded through Pedestrian Bridge Development Impact Fee. SECTION 2. Acceptance of Report The City Council has reviewed the proposed Pedestrian Bridge Development Impact Fee Report dated February 1, 2003, and has accepted the same, by Resolution No.2003- _, in the fonn on file in the Office of the City Clerk. SECTION 3. "Facilities" Ordinance 2003 - Page 4 The facilities to be financed by the Impact Fee are fully described in the Pedestrian Bridge Development Impact Fee Report (the "Report") and incorporated herein by this reference, ("Facilities"), all of which Facilities may be modified by the City Council from time to time by resolution. The locations at which the Facilities will be constructed are shown on Exhibit "1" of the approved Report. 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 pedestrian generation. SECTION 4. Territory to Which Fee Is Applicable The area of the City of Chula Vista to which the Impact Fee herein established shall be applicable is set forth on Exhibit "2" of the Report and is generally described herein as the "Territory." SECTION 5. Purpose The purpose of this ordinance is to establish the Impact Fee in order to provide the necessary financing to construct the Facilities within the areas shown in Exhibit "1" of the Report, in accordance with the City's General Plan. SECTION 6. Establishment of Fee The Impact Fee, to be based on a per Equivalent Dwelling Unit ("EDU") basis, and payable prior to the issuance of building permits for residential development projects within the Territory, is hereby established to pay for the Facilities. SECTION 7. Due on Issuance of Building Permit The Impact Fee shall be paid in cash upon the issuance of a residential building permit. Early payment is not permitted. No building permit shall be issued for residential development projects subject to this Ordinance unless the developer has paid the Impact Fee imposed by this Ordinance. SECTION 8. Determination of Equivalent Dwelling Units Residential land uses shall be converted to Equivalent Dwelling Units for the purpose of this fee based on the following table: Fee by Land Use Land Use People per household EDUs Single Family ("SFD") 3.52 1 Multi Family ("MF") 2.61 0.74 Ordinance 2003 - Page 5 [ "Single family" shall mean a residential unit within a subdivision, planning area or neighborhood with a net density of 8 units per acre or less as shown on the approved tentative map for said subdivision, planning area or neighborhood. "Multi-Family" shall mean a residential unit within a subdivision, planning area or neighborhood with a net density of greater than 8 units per acre as shown on the approved tentative map for said subdivision, planning area or neighborhood. SECTION 9. Time to Determine Amount Due; Advance Payment Prohibited. The Impact Fee tbr each development shall be calculated at the time of building permit issuance and shall be the amount as indicated at that time and not when the tentative map or final map was granted or applied for, or when the building permit plan check was conducted, or when application was made for the building permit. SECTION I0. Purpose and Use of Fee The purpose of the Impact Fee is to pay for the planning, design, construction 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, to other third parties fbr advancing costs actually incurred for planning, designing, constructing, or financing the Facilities. Any use of the Impact Fee shall receive the advance consent of the City Council and be used in a manner consistent with the purpose of the Impact Fee. SECTION l 1. Amount of Fee; Establishing Master Fee Schedule The initial Impact Fee shall be calculated at the rate of $827 per Single Family Dwelling Unit (SFD) and $614 per Multiple Family Dwelling Unit (MF). Chapter XVI, Other Fees, of the Master Fee Schedule is hereby amended to add Section E, which shall read as follows: "E." Otay Ranch Village 11 Pedestrian Bridge Development Impact Fee. This section is intended to memorialize the key provisions of Ordinance No. , 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 that there are additional rules applicable to the imposition of the Impact Fee, the language of the Ordinance govems. a. Territory to which Fce Applicable. The area of the City of Chula Vista to which the impact Fee herein established shall be applicable is set forth in Exhibit "2" of the City of Chula Vista Pedestrian Bridge Ordinance 2003 - Page 6 Development Impact Fee Report dated February I, 2003, and is generally described as the area surrounded by Olympic Parkway, Hunte Parkway and Eastlake Parkway. b. Rate per Residential Land Use and Fee The Impact Fee shall be calculated at the rate of $827 per EDU and translated into a fee per land use based on the people per household factor given below, which rate shall be adjusted from time to time by the City Council. Residential Land use EDU's Fee Single Family (SFD) 1 $827 Multi Family ("MF") 0.74 $614 c. When Payable. Thc Impact Fee shall be paid in cash not later than immediately prior to the issuance ora 'building permit. The City Council shall review the amount of the hnpact Fee annually or from time to time. The City Council may, at such reviews, adjust the amount of this Impact Fee as necessary to assure construction and operation of the Facilities~ The masons for which adjustments may be made include, but are not 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 Cost Index (ENR-CCI); changes in the type, size, location or cost of the Facilities to be financed by the Impact Fee; changes in land use in the City's General Plan; other sound engineering, financing and planning information. Adjustments to the above Impact Fee may be made by resolution amending the Master Fee Schedule. SECTION 12. Authority for Accounting and Expenditures. The proceeds collected from the imposition of the Impact Fee shall be deposited into a public facility financing fund ("Otay Ranch Village 11 Pedestrian Bridge Development Impact Fee Fund," or alternatively herein "Fund") which is hereby created and 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 13. Findings. The City Council hereby finds the following: A. The establishment of the Impact Fee is necessary to protect the public safety and welfare and to ensure the effective implementalion of the City's General Plan. Ordinance 2003 - Page 7 B The Impact Fee is necessary to ensure that funds will be available for the construction of the Facilities concurrent with the need for these Facilities and to ensure certainty in the capital facilities budgeting for growth impacted public facilities. C. The amount of the fee levied by this ordinance does not exceed the estimated cost of providing the Facilities for which the fee is collected. D. New development projects within the Territory will generate a significant amount of pedestrian traffic that current pedestrian facilities cannot service, therefore construction of the Facilities will be needed to service new development projects. SECTION 14. Impact Fee Additional to other Fees and Charges. The Impact Fee established by this section 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. SECTION 15. Mandatory Construction of a Portion of the Facilities; Duty to Tender Reimbursement Offer. Whenever a developer is required as a condition of approval of a development permit to construct or cause the construction of the Facilities or a portion thereof, the City may require the developer to install the Facilities according to design specifications approved by the City and in the size or capacity necessary to accommodate estimated pedestrian traffic as indicated in the Report and subsequent amendments. If such a requirement is imposed, the City shall offer, at the City's option, to reimburse the developer from the Fund either in cash or over time as Fees are collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs incurred by the developer that exceeds their contribution to such Facilities as required by this Ordinance, 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 Impact Fee. The City may update the Impact Fee calculation, as City deems appropriate prior to making such offer. This duty to offer to give credit or reimbursement shall be independent of the developer's obligation to pay the Impact Fee. SECTION 16. Voluntary Construction of a Portion of the Facilities; Duty of City to Tender Reimbursement Offer. If a developer is willing and agrees in writing to design and construct a portion of the Facilities in conjunction with the prosecution of a development project within the Territory, the City may, as part of a written agreement, reimburse the developer from the Fund either in cash or over time as Fees are collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs 2-7 Ordinance 2003 - Page 8 incurred by the developer that exceeds their contribution to such Facilities as required by this Ordinance, 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 Impact Fee and in an amount agreed to in advance of their expenditure in writing by the City. The City may update the Impact Fee calculation, as City deems appropriate prior to making such offer. This duty to extend credits or offer reimbursement shall be independent of the developer's obligation to pay the Impact Fee. SECTION 17. Procedure for Entitlement to Reimbursement Offer. The City's duty to extend a reimbursement offer to a developer pursuant to Section 15 or 16 above shall be conditioned on the developer complying with the terms and conditions of this section: a. Written authorization shall be requested by the developer from the City and issued by the City Council by written resolution before developer may incur any costs eligible for reimbursement relating to the construction of the Facilities, excluding any work attributable to a specific subdivision project. b. The request for authorization shall contain the following information, and the City may from time to time request such other information as: (1) Detailed descriptions of the work to be conducted by the developer with the preliminary cost estimate. c. 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: (1) Developer shall prepare all plans and specifications and submit same to the City for approval; (2) Developer shall secure and dedicate any right-of-way required for the improvement work; (3) Developer shall secure all required permits and environmental clearances necessary fbr construction of the improvements; (4) Developer shall provide per£ormance bonds in a form and amount, and with a surety satisfactory to the City; (5) Developer shall pay all City fees and costs. Ordinance 2003 - Page 9 (6) The City shall be held harmless and indemnified, and upon demand by the City, defended by the developer for any of the costs and liabilities associated with the improvements. (7) The developer shall advance all necessary funds for the improvements, including design and construction. The City will not be responsible for any of the costs of constructing the facilities. (8) The developer shall secure at least three (3) qualified bids for work to be done. The construction contract shall be granted to the lowest qualified bidder. 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. (9) The developer shall provide a detailed cost estimate, which itemizes those costs of the construction attributable to the improvements. Soils Engineering shall be limited to 7.5 percent of the project cost, Civil Engineering shall be limited to 7.5 percent of the hard cost and landscape architecture shall be limited to 2 percent of the landscaping cost. The estimate is preliminary and subject to final determination by the Director of Public Works upon completion of the Public Facility Project. (10) The agreement may provide that upon determination of satisfactory incremental completion of the public facility project, as approved and certified by the Director of Public Works, the City may pay the developer progress payments in an amount not to exceed 75 percent of the estimated cost of the construction completed to the time of the progress payment but shall provide in such case for the retention of 25 percent of such costs until issuance by the City of a Notice of Completion. (11) The agreement may provide that any funds owed to the developer as reimbursements may be applied to the developer's obligations to pay the impact Fee for building permits to be applied for in the future. (12) 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 project to the City. The Director of Public Works shall make the final determination on expenditures which are eligible for reimbursement. (13) After final deternfination of expenditures eligible for reimbursement has been made by the Public Works Director, the parties may agree to offset thc developer's duty to pay Impact Fees Ordinance 2003 - Page 10 required by this ordinance against the City's duty to reimburse the developer. (14) After offset, if any funds are due the developer under this section, the City may at its option, reimburse the developer from the Fund either in cash or over time as Fees are collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs incurred by the developer that exceeds their required contribution to such Facilities as required by this Ordinance, 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 Impact Fee and in an amount agreed to in advance of their expenditure in writing by the City. (15) A developer may transfer a credit against the Impact Fee to another developer with the written approval of the Director of Public Works in the Director's sole discretion. SECTION 18. Procedure for Fee Modification. Any developer who, because of the nature or type of uses proposed for a development project, contends that application of the Impact Fee imposed by this ordinance is unconstitutional or unrelated to mitigation of the burdens of the development, may apply to the City Council for a waiver or modification of the Impact Fee or the manner in which it is calculated. The application shall be made in writing and filed with the City Clerk not later than ten days after notice is given of the public hearing on the development permit application for the project, 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 lbr the claim of waiver or modification, and shall provide an engineering and accounting report showing the overall impact on the DIF and the ability of the City to complete construction of the Facilities by making the modification requested by the applicant. 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. The procedure provided by this section is additional to any other procedure authorized by law for protection or challenging the Impact Fee imposed by this ordinance. SECTION 19. Fee Applicable to Public Agencies. Development projects by public agencies, including schools, shall be exempt from the provisions of the hnpact Fee. SECTION 20. Assessment District. Ordinance 2003 - Page 11 If any assessment, community facilities district 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 or a credit in an amount equal to that portion of the cost included in the calculation of the Impact Fee attributable to the Work Alternatively Financed. In this regard, the amount of the reimbursement shall be based on the costs included in the Report, 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 21. Expiration of this Ordinance. This ordinance shall be of no further force and effect when the City Council determines that the amount of Impact Fees which have been collected reaches an amount equal to the cost of the Facilities. 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 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. SECT[ON 23. Other Not Previously Defined Terms. For the purposes of this ordinance, 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. (a) "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. (c) "Development Permit" means any discretionary permit, entitlement or approval for a development project issued under any zoning or subdivision ordinance of the City. (d) "Development Project" or "Development" means any activity described in Section 66000 of the State Government Code. (e) "Single Family Attached Dwelling" means a single family dwelling attached to another single family dwelling, with each dwelling on its own lot. SECTION 24. Effective Date. Ordinance Page 2 WHEREAS, the Conditions of Approval for Otay Ranch Village 11 tentative maps require that a funding mechanism be established to pay for Village 11 bridges; and . WHEREAS, pedestrian facilities have been built, or are proposed, that will co~mect Village 11 trail system to the planned pedestrian trail system in Village 10 (University Village), and to the pedestrian trail system within Planning Areal2 (Freeway Commercial/Easter Urban Center) including a continuous village pathway and cartpath system. The pedestrian facilities cross major streets and their use would be encouraged and facilitated by the provision of over-crossings of these major streets; and WHEREAS, Iand within Village 11 will benefit from the installation of these bridges primarily due to: (i) its location and proximity to the bridge, and (ii) its ease of access to the bridge based on the trail configuration; and WHEREAS, the completion of the pedestrian bridges in Village 11 will complete the linkage of the pedestrian facilities in Village 11, serving to enhance overall pedestrian access in and among the nearby Villages and would be facilitated by including the funding for the construction of the bridges required by the Village 11 tentative maps in current Impact Fee program by: 1 ) establishing the per unit fees payable at issuance of a building permit; 2) identifying the facilities to be financed by the Impact Fee; and 3) establishing the territory to which the Impact Fee is applicable to include Village l 1; and WHEREAS, the person per dwelling unit rates for Parkland Dedication in Sec. 17.10.040 were modified by Ordinance No. 2886. The rates for single family went from 3.22 persons per unit to 3.52 persons per unit and the multiple-family rates went from 2.21 persons per dwelling units to 2.61 persons per unit. The attached, cluster housing or planned unit development and the duplex categories were deleted from Sec. 17.10.040; and WHEREAS, Otay Ranch, Village 11 is that area of land within the City of Chula Vista surrounded by Olympic Parkway, Hunte Parkway, Eastlake Parkway, Birch Road, and SR-125. This area is shown on the map marked Exhibit "1," and included as an attachment to the City of Chula Vista Pedestrian Bridge Development Impact Fee Report for Otay Ranch Village 11, dated February I, 2003, on file in the Office of the City Engineer; and WHEREAS, City Engineering Staff has approved the City of Chula Vista Pedestrian Bridge Development hnpact Fee Report for Otay Ranch Village ll, dated February 1, 2003; and. WHEREAS, said Report, recommends pedestrian over-crossing facilities needed for pedestrian access, and establishes a fee payable by persons obtaining building permits for developments within Otay Ranch Village 11 benefiting from the construction of these facilities; and WHEREAS, there are two pedestrian overcrossings (POC) proposed for the Otay Ranch Village 1 l: Hunte Parkway POC and Eastlakc Parkway POC. The Hunte Parkway Ordinance Page 3 _ · · POC crosses Hunte P~rkway, a Prime Arterial/Ranch Theme street, to provide access to University site. The !~ridge is aligned with one of the Village 11 pathways that provide pedestrian access throughout the Otay Ranch Community, with an approximate length of 556 feet. The Eastlak¢ P~rkway POC is located approximately 350' north of the intersection with Hunte Parkwa3, and l~as a total length of approximately 295'. It crosses Eastlake Parkway, a Prime Arterial/Ranch Theme street, providing access to Planning Area 12 located to the east; and WHEREAS, a series of meetings have been held with the owner and developer of properties located within Otay Ranch Village 11 to discuss the Report and city staff recommendations establishing the Otay Ranch Village 11 Pedestrian Bridge Development Impact Feeg~nd WHEREAS, the Cit~~C0uncil determined based upon the evidence presented at the Public Hearing, including, but not limited to, the Report and other information received by the City Council in the course of its business, that imposition of the Impact Fee on all developments ufith/~ Otay Ranch Village 11 in the City of Chula Vista is necessary in order to protect the public safety and welfare and to ensure effective implementation of the Cityls Deneral Plan; and WHEREAS, the C~[y C~)uncil has determined that the amount of the Impact Fee levied by this ordinance does not exceed the estimated cost of providing the public facilities identified by the Report. NOW, THEREFORE, THE'CITY COUNCIL OF THE CITY OF CHULA VISTA DOES ORDAIN AS FOLLOWS: SECTION 1. Environmental Revie~,v WHEREAS, the Environme~tgl Review Coordinator has reviewed the proposed activity for co~npliance wi[h [he 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. Although environmental review is not necessary at this time, environmental review will be required prior to the approval of final design plans and the awarding of cOnstruction contracts for facilities funded through Pedestrian Bridge DeveI9pment Impact Fee. SECTION 2. Acceptance of Report The City Councii has reviewed the proposed Pedestrian Bridge Development Impact Fee Report dated February I, 2003, and has accepted the same, by Resolution No.2003- in the form on file in the Office of the City Clerk. SECTION 3. "Facilities" - · Ordinance Page 4 The facilities to be financed by the Impact Fee are fully described in the Pedestrian Bridge Development Impact Fee Report (the "Report") and incorporated herein by this reference, ("Facilities"), all of which Facilities may be modified by the City Council from time to time by resolution. The locations at which the Facilities will be constructed are shown on Exhibit "1" of the approved Report. 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 pedestrian generation. SECTION 4. Territory to Which Fee Is Applicable The area of the City of Chula Vista to which the Impact Fee herein established shall be applicable is set forth on Exhibit "2" of the Report and is generally described herein as the "Territory." SECTION 5. Purpose The purpose of this ordinance is to establish the Impact Fee in order to provide the necessary financing to construct the Facilities within the areas shown in Exhibit "1" of the Report, in accordance with the City's General Plan. SECTION 6. Establishment of Fee The Impact Fee, to be based on a per Equivalent Dwelling Unit ("EDU") basis, and payable prior to the issuance of building permits for residential development projects within the Territory, is hereby established to pay for the Facilities. SECTION 7. Due on Issuance of Building Permit The Impact Fee shall be paid in cash upon the issuance of a residential building permit. Early payment is not permitted. No building permit shall be issued for residential development projects subject to this Ordinance unless the developer has paid the Impact Fee imposed by this Ordinance. SECTION 8. Determination of Equivalent Dwelling Units Residential land uses shall be converted to Equivalent D~velling Units for the purpose of this fee based on the following table: Fee by Land Use Land Use il People per household i. iis Single Family ("SFD") 3.52 1 Multi Family ("MF") 2.61 Ordinance Page 5 "Single family" shall mean a residential unit within a subdivision, planning area or neighborhood with a net density of 8 units per acre or less as shown on the approved tentative map for said subdivision, planning area or neighborhood. "Multi-Family" shall mean a residential unit within a subdivision, planning area or neighborhood with a net density of greater than 8 units per acre as shown on the approved tentative map for said subdivision, planning area or neighborhood. SECTION 9. Time to Determine Amount Due; Advance Payment Prohibited. The Impact Fee for each development shall be calculated at the time of building permit issuance and shall be the amount as indicated at that time and not when the tentative map or final map was granted or applied for, or when the building permit plan check was conducted, or when application was made for the building permit. SECTION 10. Purpose and Use of Fee The purpose of the Impact Fee is to pay for the planning, design, construction 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, to other third parties for advancing costs actually incurred for planning, designing, constructing, or financing the Facilities. Any use of the Impact Fee shall receive the advance consent of the City Council and be used in a manner consistent with the purpose of the Impact Fee. SECTION 11. Amount of Fee; Establishing Master Fee Schedule The initial Impact Fee shall be calculated at the rate of $827 per Single Family Dwelling U~rit (SFD) and $614 per Multiple Family Dwelling Unit (MF). Chapter XVI, Other Fees, of the Master Fee Schedule is hereby amended to add Section E, which shall read as follows: "E." Otay Ranch Village 11 Pedestrian Bridge Development Impact Fee. This section is intended to memorialize the key provisions of Ordinance No. , 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 that there are additional rules applicable to the imposition of the Impact Fee, the language of the Ordinance governs. a. Ten'itory to which Fee Applicable. The area of the City of Chula Vista to which the Impact Fee herein established shall be applicable is set forth in Exhibit "2" of the City of Chula Vista Pedestrian Bridge Ordinance Page 6 Development Impact Fee Report dated February I, 2003, and is generally described as the area surrounded by Olympic Parkway, Hunte Parkway and Eastlake Parkway. b. Rate per Residential Land Use and Fee The Impact Fee shall be calculated at the rate of $827 per EDU and translated into a fee per land use based on the people per household factor given below, which rate shall be adjusted from time to time by the City Council. Residential Land use EDU's Fee Single Family (SFD) 1 $827 Multi Family ("MF") 0.74 $614 c. When Payable. The Impact Fee shall be paid in cash not later than immediately prior to the issuance ora building permit. The City Council shall review the amount of the Impact Fee annually or from time to time. The City Council may, at such reviews, adjust the amount of this Impact Fee as necessary to assure construction and operation of the Facilities. The reasons for which adjustments may be made include, but are not 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 Cost Index (ENR-CCI); changes in the type, size, location or cost of the Facilities to be financed by the In,pact Fee; changes in land use in the City's General Plan; other sound engineering, financing and planning information. Adjustments to the above Impact Fee may be made by resolution amending the Master Fee Schedule. SECTION 12. Authority for Accounting and Expenditures. The proceeds collected from the imposition of the Impact Fee shall be deposited into a public facility financing fund ("Otay Ranch Village 11 Pedestrian Bridge Development Impact Fee Fund," or altematively herein "Fund") which is hereby created and 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 13. Findings. The City Council hereby finds the following: A. The establishment of the Impact Fee is necessary to protect the public safety and ~velfare and to ensure the effective implementation of the City's General Plan. Ordinance Page 7 B The Impact Fee is necessary to ensure that funds will be available for the construction of the Facilities concurrent with the need for these Facilities and to ensure certainty in the capital facilities budgeting for growth impacted public facilities. C. The amount of the fee levied by this ordinance does not exceed the estimated cost of providing the Facilities for which the fee is collected. D. New development projects within the Territory will generate a significant amount of pedestrian traffic that current pedestrian facilities cannot service, therefore construction of the Facilities will be needed to service new development projects. SECTION 14. Impact Fee Additional to other Fees and Charges. The Impact Fee established by this section 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. SECTION 15. Mandatory Construction of a Portion of the Facilities; Duty to Tender Reimbursement Offer. Whenever a developer is required as a condition of approval of a development permit to construct or cause the construction of the Facilities or a portion thereof, the City may require the developer to install the Facilities according to design specifications approved by the City and in the size or capacity necessary to accommodate estimated pedestrian traffic as indicated in the Report and subsequent amendments. If such a requirement is imposed, the City shall offer, at the City's option, to reimburse the developer from the Fund either in cash or over time as Fees are collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs incurred by the developer that exceeds their contribution to such Facilities as required by this Ordinance, 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 hnpact Fee. The City may update the Impact Fee calculation, as City deems appropriate prior to making such offer. This duty to offer to give credit or reimbursement shall be independent of the developer's obligation to pay the Impact Fee. SECTION 16. Voluntary Construction of a Portion of the Facilities; Duty of City to Tender Reimbursement Offer. If a developer is willing and agrees in writing to design and construct a portion of the Facilities in conjunction with the prosecution of a development project within the Territory, the City may, as part of a written agreement, reimburse the developer from the Fund either in cash or over time as Fees are collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs Ordinance Page 8 incurred by the developer that exceeds their contribution to such Facilities as required by this Ordinance, 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 impact Fee and in an amount agreed to in advance of their expenditure in writing by the City. The City may update the Impact Fee calculation, as City deems appropriate prior to making such offer. This duty to extend credits or offer reimbursement shall be independent of the developer's obligation to pay the Impact Fee. SECTION 17. Procedure for Entitlement to Reimbursement Offer. The City's duty to extend a reimbursement offer to a developer pursuant to Section 15 or 16 above shall be conditioned on the developer complying with the terms and conditions of this section: a. Written authorization shall be requested by the developer from the City and issued by the City Council by written resolution before developer may incur any costs eligible for reimbursement relating to the construction of the Facilities, excluding any work attributable to a specific subdivision project. b. The request for authorization shall contain the following information, and the City may from time to time request such other information as: (I) Detailed descriptions of the work to be conducted by the developer with the preliminary cost estimate. c. 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: (1) Developer shall prepare all plans and specifications and submit same to the City for approval; (2) Developer shall secure and dedicate any right-of-way required for the improvement work; (3) Developer shall secure all required permits and environmental clearances necessary for construction of the improvements; (4) Developer shall provide performance bonds in a form and amount, and with a surety satisfactory to the City; (5) Developer shall pay ali City fees and costs. Ordinance Page 9 (6) The City shall be held harmless and indemnified, and upon demand by the City, defended by the developer for any of the costs and liabilities associated with the improvements. (7) The developer shall advance all necessary funds for the improvements, including design and construction. The City will not be responsible for any of the costs of constructing the facilities. (8) The developer shall secure at least three (3) qualified bids for work to be done. The construction contract shall be granted to the lowest qualified bidder. 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. (9) The developer shall provide a detailed cost estimate, which itenfizes those costs of the construction attributable to the improvements. Soils Engineering shall be limited to 7.5 percent of the project cost, Civil Engineering shall be limited to 7.5 percent of the hard cost and landscape architecture shall be limited to 2 percent of the landscaping cost. The estimate is preliminary and subject to final determination by the Director of Public Works upon completion of the Public Facility Project. (10) The agreement may provide that upon determination of satisfactory incremental completion of the public facility project, as approved and certified by the Director of Public Works, the City may pay the developer progress payments in an amount not to exceed 75 percent of the estimated cost of the construction completed to the time of the progress payment but shall provide in such case for the retention of 25 percent of such costs until issuance by the City of a Notice of Completion. (11) The agreement may provide that any funds owed to the developer as reimbursements may be applied to the developer's obligations to pay the impact Fee for building permits to be applied for in the future. (12) 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 project to the City. The Director of Public Works shall make the final determination on expenditures which are eligible for reimbursement. (13) After final determination of expenditures eligible for reimbursement has been made by the Public Works Director, the parties may agree to offset the developer's duty to pay Impact Fees Ordinance Page 10 required by this ordinance against the City's duty to reimburse the developer. (14) After offset, if any funds are due the developer under this section, the City may at its option, reimburse the developer from the Fund either in cash or over time as Fees are collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs incurred by the developer that exceeds their required contribution to such Facilities as required by this Ordinance, 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 Impact Fee and in an amount agreed to in advance of their expenditure in writing by the City. (15) A developer may transfer a credit against the Impact Fee to another developer with the written approval of the Director of Public Works in the Director's sole discretion. SECTION 18. Procedure for Fee Modification. Any developer who, because of the nature or type of uses proposed for a development project, contends that application of the Impact Fee imposed by this ordinance is unconstitutional or unrelated to mitigation of the burdens of the development, may apply to the City Council for a waiver or modification of the Impact Fee or the manner in which it is calculated. The application shall be made in writing and filed with the City Clerk not later than ten days after notice is given of the public hearing on the development permit application for the project, 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 waiver or modification, and shall provide an engineering and accounting report showing the overall impact on the DIF and the ability of the City to complete construction of the Facilities by making the modification requested by the applicant. 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. The procedure provided by this section is additional to any other procedure authorized by law for protection or challenging the Impact Fee imposed by this ordinance. SECTION 19. Fee Applicable to Public Agencies. Development projects by public agencies, including schools, shall be exempt from the provisions of the Impact Fee. SECTION 20. Assessment District. Ordinance Page 11 If any assessment, community facilities district 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 or a credit in an amotmt equal to that portion of the cost included in the calculation of the hnpact Fee attributable to the Work Alternatively Financed. In this regard, the amount of the reimbursement shall be based on the costs included in the Report, 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 21. Expiration of this Ordinance. This ordinance shall be of no further fome and effect when the City Council determines that the amount of Impact Fees which have been collected roaches an amount equal to the cost of the Facilities. 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 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 23. Other Not Previously Defined Terms. For the purposes of this ordinance, 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. (a) "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. (c) "Development Permit" means any discretionary permit, entitlement or approval for a development project issued under any zoning or subdivision ordinance of the City. (d) "Development Project" or "Development" means any activity described in Section 66000 of the State Government Code. (e) "Single Family Attached Dwelling" means a single family dwelling attached to another single family dwelling, with each dwelling on its own lot. SECTION 24. Effective Date. Ordinance Page 12 This ordinance shall become effective sixty days after its second reading and adoption. Presented by Approved as to form by Cliff Swanson John(t~. ~aheny Director of Engineering City Attorney COUNCIL AGENDA STATEMENT Item ..~ Meeting Date 2/18/03 ITEM TITLE: Resolution Ratifying the Action of the City Manager, Approving Change Order No. 4 for the "Phase III of the Salt Creek Gravity Sewer Interceptor" (SW219) Project and Authorizing the Director of Engineering to Execute Said Change Order on behalf of the City SUBMITTED BY: Director of Engineeringi//~ REVIEWED BY: City Manag~~~l (4/5ths Vote: Yes No X ) On August 13, 2002, the City Council approved Resolution No. 2002-298 awarding a contract in the amount of $8,432,382.60 (plus contingencies of $845,000.40) to Cass Construction, Inc. for the construction of Phase III of the Salt Creek Trunk Sewer line, from Interstate 805 to east of the Hanson Quarry. Proposed Change Order No. 4 to said contract, in the amount of $781,831.53, as shown in Attachment "A", is for additional labor, equipment, and materials for the upsizing of an approximately 9,400 feet-long segment of the Salt Creek Gravity Interceptor Sewer to 48" PVC from Interstate 805 Freeway to Heritage Road and is needed to improve the long-term operational efficiency of this segment of the sewer, consistent with City design and maintenance criteria. Due to the long lead time required to manufacture and ship this large-diameter pipe and the need to cancel production of 42" diameter PVC pipe, in late-December 2002 the City Manager authorized Engineering staff to proceed with the pipe upsizing in order to avoid delaying the completion of the overall Salt Creek Trunk Sewer project. The proposed resolution would ratify the City Manager's actions and authorize the Director of Engineering to execute Change Order No. 4. RECOMMENDATION: That Council approve the resolution ratifying the action of the City Manager, approving Change Order No. 4 for the "Phase III of the Salt Creek Gravity Sewer Interceptor" (SW219) Project and Authorizing the Director of Engineering to Execute Said Change Order on behalf of the City. BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable DISCUSSION: Background For the past three years, the Salt Creek Project design team has been working on the design and construction of the various phases of the Salt Creek Gravity Sewer Interceptor, which is in the final stages of construction. Page 2, Item .-~ Meeting Date 2/18/03 Prior to beginning the design of the project, a sewer generation study was prepared for the project, which considered the ultimate land uses within the various tributary basins (Salt Creek, Wolf Canyon and Poggi Canyon Basins) that would be served by the trunk line based upon the current General Plan. This study formed the basis of design of the project. In addition, the study identified the minimum pipes sizes and required slopes that would be needed to convey the ultimate flows. Based on the findings of that study, it was determined that the system would be designed such that it flows at a depth of no more than 75 % of the pipe's diameter when conveying ultimate flows from all the basins at build out, consistent with City design standards. To achieve this baseline design criteria, the required pipe sizes varied from 24-inch diameter pipes to a maximum of 42-inch diameter pipes. Due to a variety of reasons, discussed in more detail below, the design team recommended that the City Manager authorize the upsizing of the line from 42 inches to 48 inches. Immediate approval was requested because the Contractor was already at the site and was about to start excavating. There is also a considerable lead-time required by the manufacturers of this type of large diameter pipe. Consequently, the City Manager authorized Engineering staff to order the pipe. Justification In making its recommendation to the City Manager, staff provided the following justification: 1. As we design new facilities, it would be prudent to build these systems within the established design standards and to accommodate the City's planned development. 2. The Trunk Sewer Capital Reserve Fund, which funds this segment of the Salt Creek Trunk Sewer, derives revenue from sewer capacity charges paid per Equivalent Dwelling Unit (EDU) for each new connection to the collection system. Therefore, the initial capital outlay for the construction of this trunk line would be recouped within a short period of time (the fee is currently $2,220/EDU and staff is in the process of re-evaluating this fee). 3. Since this section of the pipeline is being constructed within an existing roadway (Main Street) that has not yet approached ultimate traffic volumes, it would be prudent to construct the required improvements now at a lower cost rather than in the future after potential operational deficiencies arise because the pipe was not constructed within our design standards. This is particularly important since some segments of the sewer are relatively shallow. 4. Due to the low bids received for Phases 2, 3, and 4 (resulting from a very competitive bidding environment), there are adequate funds in the project account to pay for the proposed upsizing of the pipe without additional appropriations from the Trunk Sewer Capital Reserve Fund. Page 3, Item .~ Meeting Date 2718/03 The approval of this Resolution would ratify the City Manager's authorization to upsize 9,4001.f. of 42-inch pipe to 48-inch pipe within Main Street, from 1-805 to Heritage Road, in order to bring this segment of pipe into compliance with City design standards and operational criteria. It should be noted that a parallel line might be needed in the furore on the remaining 1,100 1. f. of pipe west of 1-805.. In summary, staff re-evaluated the earlier decision to allow a segment of the pipe to flow at a depth exceeding 75 % of the pipe's diameter and decided that the iinmediate short-term impacts (i.e., cost of the increase), while significant, are outweighed by the potential long-term negative impacts of having an undersized system that could potentially compromise the long-term operational efficiencies of the trunk sewer, which could in turn reduce the City's ability to serve all the areas that are tributary to this pipeline (both within and outside of the City's current jurisdictional boundaries). Therefore, staff recommended that the pipe size be increased to 48" Overall Project Status Due to its large size, complexity, and environmental challenges, construction of the Salt Creek Gravity Interceptor Sewer was divided into four construction phases as summarized below. Phase Phase Limits Comments 1 From 1-805 Freeway to East of I -5 Completed in August 2002. Freeway. 2 From East of Interstate - 5 Freeway to W. Involves 1,200 feet of micro tunneling Frontage Road west oflnterstate-5 Freeway under I-5 Freeway. Construction will start at the Metro Sewer. in March 2003 and be completed in September 2003. 3 From 1-805 to the downstream end of the Severe upstream environmental constraints existing sewer segment constructed by required construction east of the Hanson SDG&E with Gas Pipeline 2000. Quarry between September 2002 and March 2003. 4 From Olympic Parkway Sewer Lift Station Environmental constraints require sewer to to upstream end of existing sewer be built between September 2002 and constructed by SDG&E March 2003. Estimated Completion in March 2003. Page 4, Item ,_~ Meeting Date 2/18/03 The following is a summary of actions with regard to this project and actions recommended by staff under the proposed resolution: Action Description Authorization Amount Original Contract Contractor's Base Bid as CouncilRes. 2002-298 $8,432,382.60 Amount (Base Contract) Awarded by City Council on August 13, 2002. Change Order No. I Upgrade 254,000 LF of wire Dir. of Public Works * $35,670.80 for the SCADA System Change Order No. 2 Relocate existing Hanson Dir. of Public Works * $8,862.06 Generator, remove boulders and other incidentals Change Order No. 3 Remove and replace existing Dir. of Public Works * $11,286.75 Cattle Guard Channel Crossing Change Order No. 4 Install a total of 9,404 feet of Proposed for Approval $ 781,831.53 48-inc diameter PVC Sewer by the City Council along Main Street from Interstate 805 to Heritage Road Total $9,270,033.74 · Approved by Director of Public Works or Director of Engineering in accordance with City Council Policy No. 574-01 FISCAL IMPACTS: The Salt Creek Trunk Sewer line is primarily funded utilizing two funding sources: The Trunk Sewer Capital Reserve Fund and the Salt Creek Gravity Basin Development Impact Fee (DIF). The trunk line is broken into nine reaches, numbered 1 through 9. The City is obligated to fund Reach 9 of the project utilizing the Trunk Sewer Capital Reserve Fund, while developers within the Salt Creek Basin are required to fund the remaining reaches. The portion of the trunk line that is the subject of Proposed Change Order No. 4 is within Reach 9 of the trunk line. The cost of increasing the pipe size from 42 to 48 inches within this reach is $781,831.53. Proposed Change Order No. 4 will increase the total contract amount from $8,432,382.60 to $9,270,033.74 (including previously approved Change Order Nos. i through 3). Sufficient funds are available in the project fund balance of the SW-219 Project Account to cover the proposed increase in the contract amount. Attachment: (A) Change Order No.4 J:\EngineerV'X.G ENDA~S W219-Phase-llI-CCO4 A 113.ac.doc CIh' OF CHUIA VISIA February 5, 2003 DEPARTMENT OF ENGINEERING 0735-10-SW-219 CHANGE ORDER NO. 4 CONTRACT: SALT CREEK SEWER iNTERCEPTOR, REACH 9B PHASE III CONTRACTOR: CASS CONSTRUCTION. INC. The following changes shall be made to the referenced contract between the CITY OF CHULA VISTA and CASS CONSTRUCTION COMPANY, INC. (Contractor): CHANGES Add: Description [Init Price Total Quantity Units 9404 LF Install 48" PVC C905 STA. 167+ 99.84 to 262+03.64 $263.11 $2,474,286.44 18 LF Install 48" Ductile Iron Pipe STA. 241+t 3.50 to 241+31.50 $1,235.00 $22,230.00 21 EA Install 6~ Manholes w/48" Opening $14,500.00 $304,500.00 I ES 1% for Bond Cost $9,378.69 $9,378.69 Total Addition $2,810,395.13 Deduct: 9404 LF Install 42" PVC C905 STA. 167+ 99.84 to 262+03.64 $192.40 ($1,809,329.60) 18 LF Install 42" Ductile Iron Pipe STA. 241+13.50 to 241 ~31.50 $513.00 ($9,234.00) 20 EA 6' Manhole w/42" Opening $10,500.00 ($210,000.00) Total Deduction ($2,028,563.60) Total Change Order $781,831.53 The agreed upon total price includes all costs for furnishing all tools, labor, materials, equipment, incidental costs, and fees for performing the work in this contract change and no additional compensation will be due. It is agreed by the undersigned that this work shall be performed and materials furnished in accordance with the original (base) contract, Green Book specifications and applicable standard drawings. Original Contract Amount $ 8,432,382.60 Previous Change Orders $ 55,819.61 This Change Order $ 781,831.53 Total Contract Price $ 9,270,033.74 Ordered By: Accepted By: Approved By: Kirk P. Ammerman Jim Nelson Clifford L. Swanson Deputy Dir. Of Engineering Cass Construction, Inc Director of Engineering J:\Engineer\lNSPECT\Change Orders\SW-219 Change Order #4.doc For written replies, respond to: [] 276 FOURTH AVENUE / CHULA VISTA, CALIFORNIA 91910-2631 / (619) 69%5021 l~ 1800 MAXWELL ROAD / CHULA VISTA, CALIFORNIA 91911-6158 / (619) 691-5021 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA RATIFYING THE ACTION OF THE CITY MANAGER, APPROVING CHANGE ORDER NO. 4 FOR THE "PHASE III OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR" (SW-219)" PROJECT, AND AUTHORIZING THE DIRECTOR OF ENGINEERING TO EXECUTE SAID CHANGE ORDER ON BEHALF OF THE CITY WHEREAS, on August I3, 2002, the City Council approved Resolution No. 2002-298 axvarding a contract in the amount of $8,432,382.60 (plus contingencies of $845,000) to Cass Construction Company, Inc., for the construction of Phase III of the Salt Creek Trunk Sewer line, from Interstate 805 to east of the Hanson Quarry; and WHEREAS, proposed Change Order No. 4, in the amount of $781,831.53) is for additional labor, equipment, and materials for the up-sizing of an approximately 9,400 feet-long segment of the Salt Creek Gravity Interceptor Sewer from Interstate 805 Freeway to Heritage Road. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby ratify the action of the City Manager and approve Change Order No. 4 for the "Phase II! of the Salt Creek Gravity Sewer Interceptor" (SW-219) Project in the amount of $781,831.53. BE IT FURTHER RESOLVED that the Director of Engineering of the City of Chula Vista is hcmby authorized and directed to execute said change order on behalf of the City of Chula Vista. Presented by Approved as to form by C1 iff ora T. Swanson '<~ "~/'")~o.~ ~' '~ ~el}~/y~'~~4. n~y// Director of Engineering ' y COUNCIL AGENDA STATEMENT Item ~ Meeting Date 2/18/03 ITEM TITLE: A. Resolution of the City Council of the City of Chula Vista, California, adopting a boundary map showing the boundaries of the territory proposed for inclusion in proposed Community Facilities District No. 09M (Village 1 I, Brookfield Shea Otay) B. Resolution of'the City Council of the City of Chula Vista, California, declaring its intention to establish Community Facilities District No. 09M (Village 1 l, Brookfield Shea Otay) and to authorize the levy of a special tax therein to finance certain services C. Resolution of the City Council of the City of Chula Vista, California, ordering and directing the preparation of a Community Facilities District Report for proposed Community Facilities District No. 09M (Village 11, Brookfield Shea Otay) SUBMITTED BY: Director of Engineering0~/ REVIEWED BY: City Mana (4/5ths Vote: Yes No X ) Brookfield Shea Otay has requested the City conduct proceedings to consider the approval of the formation of Community Facilities District No. 09M (CFD No. 09M). The conditions of approval of the tentative map for Village 11 (Brookfield Shea Otay) requires that said CFD be formed prior to the first final "B" map (condition #128). This district will fund the perpetual operation and maintenance of slopes, medians and parkways and storm ~vatcr treatment facilities associated with Village 11. The City has retained the services of MuniFinancial as special tax consultant and Best Best and Krieger LLP as legal counsel to provide assistance during the proceedings. Tonight's action will initiate the formal proceedings to consider the establishment of CFD No. 09M. Page 2, Item /~ Meeting Date 2/18/03 RECOMMENDATION: That Council: 1. Approve the resolution adopting the boundary map for Community Facilities District No. 09M, 2. Approve the resolution declaring the intention to establish Community Facilities District No. 09M and to levy a special tax to finance certain services, aad 3. Approve the resolution ordering and directing the preparation of the "Community Facilities District Report" for Community Facilities District No. 09M. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: On January 13, 1998, Council adopted the "City of Chula Vista Statement of Goals and Policies regarding the establishment of Community Facilities Districts" (the "Goals and Policies"). The approval of this document ratified the use of CFDs as a public financing mechanism for (1) the construction and/or acquisition of public infrastructure, and (2) the financing of authorized public services. Taxes levied by maintenance districts, such as CFD No. 09M, are currently excluded from the 2% maximum tax criterion set forth in the Goals and Policies. On April 28, 1998, Council, acting under its Charter authority, enacted the "Chula Vista Community Facilities District Ordinance" (the "Ordinance"). The Ordinance adopted the Mello-Roos Act with modifications to accomplish the following: 1) incorporate all maintenance activities attthorized by the "Landscaping & Lighting Act of 1972" ("1972 Act"), 2) include certain maintenance activities not listed in the "Mello-Roos Act" or thc "1972 Act", and 3) establish an operating reserve fitnd for open space districts. CFD 09M will provide the necessary funding for the operation and maintenance of public landscaping and stomq water improvements serving Village 11 (Brookfield Shea Otay) by levying an annual "special tax", which is collected from the property owners within CFD 09M in conjunction with the property taxes. There is no direct cost to the City. Ail expenses related to the district administration, including levying and collecting the special taxes, are also I'unded fi-om such special taxes. The proposed CFD No. 09M is consistent with the above-mentioned Ordinance and the Goals and Policies. In addition, staff has met with the developer to discuss their concerns, clarify the intent of the Goals and Policies and Ordinance, and review the proposed special tax rates and tile methodology for the apportionment of the special taxes. All of the issues raised by the developers have been discussed and solutions, satisfactory to all parties, have been incorporated in the "Rate and Method of Apportionment" (the Page 3, Item ~- Meeting Date 2/18/03 "RMA"). The RMA has also been modeled after similar open space maintenance districts in the surrounding area. Staff; the legal counsel, and the special tax consultant have reviewed the proposed RMA and consider it ready lbr council approval. Area of Benefit The proposed boundaries of CFD No. 09M encompass parcels located within the Village 11. Brookfield Shea Otay owns 100% of the property within CFD 09M. Brookfield Shea Otay is proposed to contain approximately 1,297 single-family detached homes, 661 condominimn/townhome units, 315 apartments, 10 acres of multi-use property and 9.3 acres of Community Purpose Facility ("CPF") property. Staff has reviewed the proposed boundary map and has found it acceptable and ready for approval by Council. A reduced copy of the map is presented in Exhibit "B". Description of thc hnprovements to be Maintained The proposed CFD No. 09M will fund the operation and maintenance of the public landscaping and stom~ water treatment improvements within Village 11. A complete list of such improvements is presented in Exhibit "C". Cost Estimate The estimated annual budget for CFD No. 09M is approximately $886,793. This budget includes maintenance costs of $771,176, $35,000 for CFD administration and a 10% operating reserve of $80,618. Staff and MuniFinancial have reviewed and approved the proposed budget. Exhibit "D" contains a detailed annual budget for the district at buildout. Proposed Special Tax CFD 09M has four proposed categories of taxation, as follows: · Residential Developed Parcels are taxed based on their density at the tentative map. A density of 0 to 8 dwelling units per acre is considered one Equivalent Dwelling Unit (EDU). Densities between 8 and 20 are considered 0.8 EDUs and greater than 20 units per acre are taxed at 0.6 EDUs per residence. · Commercial Parcels are taxed on the basis of 3.84 EDU per acre of the parcel. · Multiple Land use parcels are taxed at the sum of all land uses contained therin. · The Final Mapped properties which include all single family residential parcels for which a building permit has not been issued are taxed on acreage of the parcel. · Vacant land (Other Taxable property) is taxed on acreage of the parcel. J:XEngincc~\AGENDA\CFD 09M All 3 ROI dlaft 3doc ~ ~ ~ Page 4, Item '~ Meeting Date 2/18/03 ,, The Exempt Category includes all publicly owned parcels, Homeowner's Association parcels, and CPF property owned by non-profit organizations. Developed Parcels are those parcels for which a building permit has been issued. The proposed maximum special tax rate in the RMA on all Developed Parcels was detemfined by dividing the estimated am~ual budget at buildout (plus an operating reserve allocation of 10% of the animal budget) by the total estimated square footage of development at buildout (reduced by 10% to avoid a possible revenue shortfall in the event that the actual square footage of development does not meet the developer's current projections). The proposed maximum special tax rate in the RMA on vacant land has been determined by dividing thc estimated almual budget at buildout (plus a reserve allocation of 10% of the annual budget) by the estimated net lot acreage within the district. Collection of Taxes At the beginning of each fiscal year the City shall determine the amount of the Special Tax Liability (budget plus reserve) of each Improvement Area. Then, the special taxes will first be levied on the Residential Developed Parcels. If this pool of fi~nds is not enough to fired the Special Tax Liability, as may be the case in the early years of development, the district will levy the special tax on the vacant land starting with Final Mapped Property. The buffer of having the vacant land covering any portion of the Special Tax Liability not funded from special taxes levied on Residential Developed Parcels will disappear once the area has been fully developed. If the Special Tax Liability for any fiscal year is less than the maximum special tax authorized to be levied on the Developed Parcels, the actual rate of the special taxes to be levied in that specific year will be reduced accordingly. Following is a brief discussion of some key issues regarding the "Rate and Method of Apportionmenl (RMA) of Special Taxes": (See Exhibit "A" for full description of RMA) · The maximum special taxes rates shall be adjusted each year for inflation using a factor equal to the increase, if any, of the annual change of the San Diego Consumer Price Index. · The Ordinance requires that the developer maintain the landscape improvements for the minimum period of one year following their completion. During this period the District will collect the special taxes with the purpose of building up a six months operating reserve. The RMA provides that the annual budget for any year may include an amount deemed necessary to maintain an adequate level of this operating reserve fund. · The maximum special tax rates are based on the best estimate by the developer of the residential development within CFD 09M (reduced by 10%). This reductioo in Page 5, Item '-*' Meeting Date 2/18/03 estimated total units of development has the net result of raising the maxinmm special tax that can be levied on future residential parcels to avoid a possible shortfall in special tax revenue in the event that the actual number of units developed is less than the projected number of units on which the computation of the special tax rates has been based, if the actual units of development meets or exceeds the projections on which the special tax rates were based, the actual special tax rate necessary to be levied annually to fund the Special Tax Liability may be less than the authorized maximum special tax. ,, The annual budget used to calculate the special tax rates are only the "best estimates" of the cost of maintenance at buildout. There is always a risk that actual expenses in future years may be higher than the total maximum collectable special taxes. This may result in reduced levels of maintenance of landscaping, unless the property owners approve an increase in the special tax rates (2/3 voter's approval is required), which is considered unlikely. Staff believes, however, that the proposed maximum special tax rates contain enough of a cushion in the operating reserve, the inflation adjustment, and the assumed reduction of total units of development to minimize the risk of future special tax revenue shortfalls. Proposed Maximum Special Taxes The proposed maximum special tax rates for fiscal year 2003/04 for a typical dwelling unit within CFD 09M is as follows: Density Special Tax 0 to 8 Uuits per acre $470.28 8 to 20 Units per acre $376.22 Greater than 20 Units per acre $282.16 Non-Residential $1,805.87/Acre Resolutions There are three resolutions on today's agenda, which, if adopted, will accomplish the following: The RESOLUTION ADOPTING THE BOUNDARY MAP is the formal action adopting the map and setting forth thc boundaries of the proposed Community Facilities District No. 09M. The RESOLUTION OF INTENTION is the jurisdictional resolution declaring the intention of thc City Council to establish the proposed Community Facilities District No. 09M, authorize the levy of a Special Tax, and set the time and place for the public hearing. J:\Engme¢i',AGt~NDA\CFD 091vi Al 13 ROI d~aft 3doc Page 6, Item /4 Meeting Date 2/18/03 The RESOLUTION ORDERING THE PREPARATION OF THE "COMMUNITY FACILITIES DISTRICT REPORT" is the formal action of the City Council directing the preparation of a detailed report containing a description of the services and its estimated cost for the proposed Community Facilities District No. 09M. Future Actions The public hearing and consideration of the adoption of a resolution forming and establishing CFD No. 09M, and submitting the authorization for the levy of special taxes to the qualified electors are scheduled for the City Council meeting of March 25, 2003 at 6:00 P.M. FISCAL IMPACT All costs of formation of the district are being borne by the developers and the on-going administration will be funded entirely by the district. The City will receive the benefit of full cost recovering for staff cost involved in the following activities: 1) District formation (Staff cost estimated at $50,000, and 2) district administration in perpetuity (estimated annual staff cost each year is $23,850 and an additional $11,000 for the contractual administration for the Engineering Department.) Exhibits: "A" Rate and Method of Apportionment "B" Boundary Map "C" List of Public Facilities to be maintained "D" Annual Budget .I:\Engineer~AGENDA~CFD 09M Al 13 ROI drall 3.doc Exhibit "A" CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 09M RATE AND METHOD OF APPORTIONMENT (Village 11, Brookfield Shea) A Special Tax of Community Facilities District No. 09M (Village 11, Broolffield Shea) of the City of Chula Vista ("CFD") shall be levied on all Assessor's Parcels in the CFD and collected each Fiscal Year commencing in Fiscal Year 2003-04 in an amount determined through the application of the rate and method of apportionment of the Special Tax set forth below. All of the real propenyin the CFD, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner hcrein provided. A. DEFINITIONS The terms hereinafter set forth have the following meanings: "'A' Map" shali mean a master final subdivision or parcel map, filed in accordance with the Subdivision Map Act and the Chula Vista MunS. cipal Code, which subdivides the land or a portion thereof shown on a tentative map into "super block" lots corresponding to units or phasing of combination of units as shown on such tentative map and which may further show open space lot dedications, backbone street dedications and utility easements required to serve such "super block" lots. "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, other final map, other parcel map, other condominium plan, or functionally equivalent map or instrument recoMed in the Office of the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage multiplied by 43,560. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or estimated costs incurred by the City, acting for and on behalf of the CFD as the adnfirfistrator thereof, to determine, levy and collect the Special Taxes, including salaries of Cityemployees and a proportionate amount of the City's general administrative overhead related thereto, and the fees of consultants and legal counsel providing services related to the administration of the CFD; the costs of collecting installments of the Special Taxes; and any other costs reqtfired to administer the CFD as deter~nined by the City. "Approved Property" means all Assessor's Parcels of Taxable Property. (i) that are included in an 'A' Map, excluding lettered lots thereon, or a Final Subdivision Map, excluding lettered lots thereon, that were recorded prior to the March 1st preceding the Fiscal Year in which the Special Tax is being levied, and (ii) that have not been issued a building City of Chula Vista 1/31/2003 CFD 09M, Vilhtge 11 (Brookfield Shea) Page I permit prior to the March 1s~ preceding the Fiscal Year in which the Special Tax is being levied. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned assessor's parcel number. "Assessor's Parcel Map" means an official map of the Assessor of the Countydesignating parcels by assessor's parcel number. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD" means Commuuity Facilities District No. 09M of the Cityof Chula Vista. "City" means the City of Chula Vista. "City Clerk" means the City Clerk for the City of Chula Vista or his or her designee. "City Manager" means the City Manager for the City of Chula Vista or his or her designee. "Co~mnunity Purpose Facility Property" or "CPF Property" means all Assessor's Parcels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City of Chula Vista, acting as the legislative body of the CFD. "County" means the Countyof San Diego, California. "Developed Property" means all Taxable Property for which a building permit Was issued after January 1, 2002, but prior to the March 1st preceding the Fiscal Year in which the Special Tax is being levied. "Density" means for each Assessor's Parcel of Residential Property the nmnber of Dwelling Units per gross acre determined pursuant to those provisions of Ordinance No. 2866, in effect as of December 17, 2002, that provide for the calculation of density for purposes of calculating Transportation Development Impact Fees. "Dwelling Unit" means each separate residential dwelling unk that comprises an independent facility capable of conveyance or rental separate from adjacent residential dwelling units. "Final Subdivision Map" means a subdivision of property creating single family residential buildable lots by recordation of a final subdivision map or parcel map pursuant to the Subdivision Map Act (california Government Code Section 66410 et seq.), or recordation of a condominium plan pursuant to Callfomia Civil Code 1352, that creates individual lots for which building permits may be issued without further subdivision and is recorded prior to March 1 preceding the Fiscal Year in which the Special Tax is being levied. Ciiy of Chuh~ I/ista 1/31/2003 CFD 09M, l/ilhtge l I (Brookfield Sbt, a) Page 2 "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Land Use Class" means anyof the classes listed in Table 1 or Table 2. "Landscape Maintenance" means the labor, material, admh~istration, personnel, equipment and utilities necessary to maintain landscaped improvements within the public tight-of-ways, parkways, slopes, wetlands and other public easements throughout the CFD. "Landscape Maintenance Requirement" means, for any Fiscal Year in which Special Taxes are levied, the amount equal to the budgeted costs for Landscape Maintenance applicable to the CFD for such Fiscal Year. "Maximum Special Tax" means the maximum Special Tax, determined in accordance with Section C below, that may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Mixed Use Property" means all Assessor's Parcels that have been classified by the City to allow both Residential Property and Non-Residential Property uses on each such Assessor's Parcel. For an Assessor's Parcel of Mixed Use Property, each Land Use Class thereon is subject to taxation pursuant to the provisions of Section C regardless of the geographic orientation of such Land Use Classes on such Assessor's Parcel. "Multi-Family Property" means all Assessor's Parcels of Developed Property for which a bui]ding permit has been issued for a residential structure consisting of two or more residential units that share common walls, including, but not limited to, duplexes, triplexes, townhomes, condon~niums, and apartment units. "Non-Residential Property" means all Assessor's Parcels of Developed Property for which a building permit(s) has been issued for a structure or structures for non-residential "Operating Fund" means a fund that shall be maintained for the CFD for each Fiscal Year to pay for Landscape Maintenance and Storm Water Quality Maintenance and Administrative Expenses. "Operating Fund Requirement" means, for any Fiscal Year, the sum of the applicable Landscape Maintenance Requirement and the applicable Storm Water Quality Maintenance Requirement. "Property Owner Association Property" means any property within the CFD boundaries that is owned by, or irrevocably dedicated as indicated in an instrument recorded with the County Recorder to, a propervy owner association, including any master or sub-association. "Proportionately" means in a manner such that the ratio of the actual Special Tax levy to the Ma~mum Special Tax is equal for all Assessor's Parcels of Taxable Property within each Land Use Class. "Public Property" means any property within the CFD boundaries that is, at the time of the CFD formation, expected to be used for any public purpose and is owned by or City of Chula Vista 1/31/2003 CFD 09M, Village 11 (Brookfield Shea) Page 3 dedicated to the federal government, the State, the County, the City or any other public agency. "Reserve Fund" means a fund that shall be maintained for the CFD for each Fiscal Year to provide necessary cash flow for the first six months of each Fiscal Year, reserve capital to cover monitoring, maintenance and repair cost overruns and delinquencies in the payment of Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies. "Reserve Fund Requirement" means an amount equal to up to 100% of the Operating Fund Requirement for any Fiscal Year. "Residential Property" means all Assessor's Parcels of Developed Property for which a building permit(s) has been issued for purposes of constructing one residential dwelling unit. "Special Tax" means the Special Tax levied pursuant to the provisions of sections C and D below in each Fiscal Year on each Assessor's Parcel of Developed Property and Undeveloped Property in the CFD to fund the Special Tax Requirement. "Special Tax Requirement" means that amount required in any Fiscal Year for the CTD to: ia) ii) pay the Landscape Maintenance Requirement; (ii) pay the Storm Water Quality Maintenance Requirement; (iii) pay reasonable Administrative Expenses; (iv) pay any amounts required to establish or replenish the Reserve Fund to the Resepae Fund Requirement; iv) pay for reasonably anticipated delinquent Special Taxes based on the delh~quency rate for Special Taxes levied in the previous Fiscal Year, less (b) a credit for funds available to reduce the annual Special Tax levy, including the excess, if any, in the Reserve Fnnd above the Reserve Fund Requirement. "SLate" means the State of California. "Stm:m Water Qnality Maintenance" means the maintenance of detention basins, storm drains, catch basin inserts, hydrodynamic devices, infiltration basins, and all other facilities that are directly related to storm water quality control throughout the CFD. "Storm Water Quality Maintenance Requirement" means for any Fiscal Year an amount equal to the budgeted costs for Storm Water Quality Malntenance applicable to the CFD for the current Fiscal Year in which Special Taxes are levied. "Taxable Property" means all of the Assessor's Parcels within the boundaries of the CFD that are not exempt from the Special Tax pursuant to law or as defined below. "Tax-Exempt Property" means an Assessor's Parcel not subject to the Special Tax. Tax- Exempt Property includes: ii) Public Property, or (ii) Property Owner Association Property, or (iii) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement. "Taxable Property Owner Association Property" means all Association ProperU, which is not exempt from the Special Tax pursuant to Section E below. City of Chuht I/i~ta 1/31/2003 CFD 09M, Village 11 (BrookJield Xhea) Page 4 "Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified as Developed Property, Approved Property or Taxable Property Owners Association Property. B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year using the de£mitions above, all Taxable Property within the CFD shall be classified as Developed Property, Approved Property, Undeveloped Property or Taxable Property Owners Association Property, and shall be subject to Special Taxes pursuant to Sections C and D below. Developed Property shall be further assigned to a Land Use Class as specified in Table 1. The Land Use Class of each Assessor's Parcel of Residential Property or Mixed Use Property shall be determined based on its Density. Once the Land Use Class of an Assessor's Parcel of Residential Property or Mixed Use Property is determined it cannot be changed. Assessor's Parcels of CPF Property not classified as exempt in accordance with Section E below shall be taxed as Non-Residential Property when such Assessor's Parcel is classified as Developed Property. C. MAXIMUM SPECIAL TAX RATE 1. Developed Property TABLE 1 Maximum Special Tax for Developed Property Community Facilities District No. 09M Land Maximum Use Des c ription Density Special Class (DU/Acre) Tax 1 Residential Property 0 to 8 $470.28 per Dwelling Unit 2 Residential Property >8 to 20 $376.22 per Dwelling Unit 3 Residential Property Greater than 20 $282.16 per Dwelling Unit 4 Non-Residential Property N/A $1,805.87 per Acre City of Chula Vista 1/31/2003 CFD 09M, Village I l (Brookfiehl Shea) Page 5 Multiple Land Use Classes In some instances an Assessor's Parcel of Developed Property may contain more than one Land Use Class. The Maximum Special Tax that may be levied on an Assessor's Parcel shall be the sum of the Maximum Special Tax levies that may be levied on all Land Use Classes located on that Assessor's Parcel. The CFD Administrator's shall determine the allocation to each Land Use Class. 2. App~oved Prope~Xy, Undeveloped Property and Taxable Property Owner Association Property The Maximum Special Tax for Approved Property, Undeveloped Property and Taxable Property Owner Association Propertyshall be $1,805.87 per Acre 3. Annual Escalation of Maximum Special Tax The Maximum Special Ta.x as shown in the tables above that may be levied on each Assessor's Parcel in The CFD shall be increased each Fiscal Year beginning in Fiscal Year 2004-05 and thereafter by a factor equal to the annual percentage change in the San Diego Metropolitan Area All Urban Consumer Price Index (All Items). D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04, and for each following Fiscal Year, the Council shall lewthe C~D Special Tax at the rates established pursuant to steps 1 through 4 below so that the amount of the Special Tax levied equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: First: The Special Tax shall be levied proportionateiy on each Assessor's Parcel of Developed Property up to 100% of the applicable Maximum Special Tax; Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Approved Property at up to 100% of the Maximum Special Tax for Approved Property.; Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property at up to 100% of the Maximum Special Tax for Undeveloped Property;, Fourth: if additional moneys are needed to satisfythe Special Tax Requirement after the first three steps have been completed, the Special Tax shall be levied proportionately on each Assessor's Parcel of Taxable Property Owner Association Property at up to 100% of the Maximum Special Tax for Taxable Property Owner Association Property. City of Chula Vista 1/31/2003 CFD 09M, Village I I (Brook/ieM Xhea) Page 6 Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property for which an occupancy permit for private residential use has been issued be increased by more than ten percent annually up to the Maximum Special Tax as a consequence of delinquency or default bythe owner of any other Assessor's Parcel within the CFD. E. EXEMPTIONS The CFD Administrator shall classify as exempt property (i) Assessor's Parcels defined as Public Property, and (h) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement. The CFD Administrator shall classify as exempt property those Assessor's Parcels defined as Property Owner's Association Property provided that no such classification would reduce the sum of ail taxable Property to less than 206.13 Acres. Assessor's Parcels defined as Property Owner Association Property that cannot be classified as exempt property will be classified as Taxable Property Owner Association Property and shall be taxed as part of the fourth step in Section D. The CFD Administrator will assign Tax-Exempt status in the chronological order in which property becomes exempt. F. APPEALS Any landowner or resident who pays the Special Tax and believes that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consukation, the CFD Administrator determines that an error has occurred, the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any by the CFD Administrator, the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of the CFD, a special three-member Review/Appeal Conmfittee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shah interpret this Rate and Method of Apportionment and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. G. MANNER OF COLLECTION Special Taxes levied pursuant to Section D above shall be collected in the same manner and at the same time as ordinary ad wJorem property taxes; provided, however, that the CFD City of Chttla Vista 1/31/2003 CFD 09M, Village l I (Brookfiehl Shea) Page 7 Administrator may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet the financial obligations of the CFD or as otherwise determined appropriate bythe CFD Administrator. H. TERM OF SPECIAL TAX Taxable Property in the C~D shall remain subject to the Special Tax in perpetuity. City of ChMa ~/ista 1/$1/2005 CFD 09M, ~'t'll~ge I 1 (ltrookJield She~O P~tge 8 Exhibit B EXHIBIT C Community Facilities District No. 09M (Village 11 Brookfield Shea Otay) City of Chula Vista, California LIST OF AUTHORIZED FACILITIES AND SERVICFS Landscaping Maintenance Olympic Parkway (Between Eastlake and Hunte Parkway) · Medians - Prorata share not to exceed 50% · South side of parkway · Slopes Eastlake Parkway ~Between Olympic Parkway and Hunte Parkway) · Medians - 100% until adjacent development to the west occurs and a prorata share not to exceed 50% thereafter · East side of parl~vay · Slopes Hume Parkway (Between Olympic Parkway and Eastlake Parkway) · Medians - 100% until adjacent development to the south occurs and a prorata share not to exceed 50% thereafter · No~h side of parkway · Trails · Slopes · Slopes south/east of Hunte Parkway (Between Olympic Parkwayand the SDG & E Easement) Pedestrian Bridges · Prorata share of bridge between Village Eleven and Village Ten · Prorata share of bridge between Village Eleven across Eastlake Parkway-to the Eastern Urban Center Accent Paving · Kestral Fails at Eastlake Parkway · Eveningstar at Hume Parkway · Crossroads at Eastlake Parkway · Hiddenpath at Hume Parkway · Birch at Eastlake Parkway · Exploration Falls at Hunt Parkway · Exploration Falls at Olympic Parkway · Discovery Falls at Hunte Parkway · \V~mdh~gwalk at Oly~apic Parkway C:\Documents and Settmgs\tomaXMyDocmnents\Village n\CFD\EXHIBIT C- Improvements for ROI Ail3 draft 4 clean.doc EXHIBIT C Community Facilities District No. 09M (Village 11 Brookfield Shea Otay) City of Chula Vista, California LIST OF AUTHORIZED FACILITIES AND SERVICES Perimeter Walls & Fencing · Perimeter walls within perimeter slopes adjacent to Olympic Parkway (including block wall and lodge pole fencing) · Perimeter walls within perimeter slopes adjacent to Eastlake Parkway (including block wall and lodge pole fencing) · Perimeter vealls within perimeter slopes adjacent to Hunte Parkway (including block wall and lodge pole fencing) Lighting · Entry monument lighting · Pedestrian bridge lighting Storm Water Quality Maintenance · Western Basin (Prorata share) · Eastern Basin Facilities and devices directly related to removal of contaminants and solids from storm water tliroughout the Improvement Area including but not limited to storm drains, catch basin inserts, hydrodynamic devices, infiltration basins, and similar facilities. SUBSTITUTION OF FACILITES The description of the Facilities and Services, as set forth above, is general in its nature. The final nature and location of the Facilities and Services will be determined upon the preparation of final plans and specifications. The final plans may show substitutes in lleu of, or modification to, the proposed Facilities and Services in order to provide the punic facilities necessitated by development occurring in the District, and any such substitution shah not be a change or modification in the proceedings as long as such substitute facilities and services serve a function or provide a service substantially similar to that function ser~'ed or the service provided bythe Facilities and Service described above at a similar cost. C:\Documt nfs and Scrth~§s\toma\ My Documents\Village 11\CFD\EXHIBIT C hnprovements for ROI A113 draft 4 clean doc q Exhibit D ~ ~ g oooooo ooooooo oooooooo RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING A BOUNDARY MAP SHOWING THE BOUNDARIES OF THE TERRITORY PROPOSED FOR THE INCLUSION IN PROPOSED COMMUNITY FACILITIES DISTRICT NO. 09-M (VILLAGE 11 BROOKFIELD SHEA OTAY) WHEREAS, the City Council of the City of Chula Vista, California, desires to initiate proceedings to create a Community Facilities District a pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Cbula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community l:acilities District Law"). This Community Facilities District shall hereinafter be designated as Community Facilities District No. 09-M (ViLlage l 1 Brookfield Shea Otay) ("District"); and, WHEREAS, there has been submitted a map showing the boundaries of the territory proposed to be included in the District which territory includes the properties and parcels of land proposed to be subject to the levy of special taxes by the District. NOW, THEREFORE, IT IS HEREBY RESOLVED: SECTION 1. The above recitals are all true and correct. SECTION 2. The map designated as "Boundaries Of Community Facilities District No. 09-M (Village 11 Brookfield Shea Otay)" showing the showing the boundaries of the territory proposed to be included in the District which territory includes the properties and parcels of land proposed to be subject to the levy ora special tax by the District. SECTION 3. A certificate shall be endorsed on the original and on at least one (1) copy of the map of the District, evidencing the date and adoption of this Resolution, and within fifteen (15) days after the adoption of the Resolution fixing the time and place of the hearing on the fbrmation of such District, a copy of such map shall be filed with the correct and proper endorsements thereon with the County Recorder, all in the manner and form provided for in Sections 3110 and 3111 of the Streets and Highways Code of the State of California. PREPARED BY: APPROVED AS TO FORM BY: Cliffbrd T. Swanson John Kaheny Director of Engineering City Attorney ,l:\attorney\reso\cfd 09-M adopting map RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING ITS INTENTION TO ESTABLISH COMMUNITY FACILITIES DISTRICT NO. 09-M (VILLAGE 11 BROOKFIELD SHEA OTAY) AND TO AUTHORIZE THE LEVY A SPECIAL TAX THEREIN TO FINANCE CERTAIN SERVICES WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "City Council"), desires to initiate proceedings to create a Community Facilities District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the po~vers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District La~v"). This Community Facilities District shall hereinafter be referred to as Community Facilities District No. 09-M (Village 11 Brookfield Shea Otay) (the "District"); and, WHEREAS, this City Council is now required to proceed to adopt its Resolution of Intention to initiate the proceedings for the establishment of such District, to set forth the boundaries for such District, to indicate the type of public services to be financed by such District, to indicate a rate and method of apportionment of special taxes proposed to be levied within such District sufficient to finance such services, to set a time and place for a public hearing relating to the establishment of such District and the authorization to levy such special taxes. WHEREAS, a map of such District has been submitted showing the' boundaries of the territory proposed to be included in the District which territory includes the properties and parcels of land proposed to be subject to the levy of a special tax by the District NOW, THEREFORE, IT IS HEREBY RESOLVED: SECTION 1. Recitals. The above recitals are all true and correct. SECTION 2. Initiation of Proceedings. These proceedings are initiated by this City Council pursuant to the provisions of the Community Facilities District Law. SECTION 3. Boundaries of District. It is the intention of this City Council to establish the Community Facilities District pursuant to the provisions of the Community Facilities District Law, and to detemfine the boundaries and parcels on which special taxes may be levied to finance certain services described bclow. A description of the boundaries of the territory proposed for inclusion in the District including properties and parcels of land proposed to be subject to the levy ora special tax by the District is as follows: All that property as shown on a map as previously approved by this City Council, such map designated by the name of this Community Facilities District, a copy of ~vhich is on file in the Office of the City Clerk and shall remain open for public inspection. SECTION 4. Name of District. The proposed Community Facilities District shall be known and designated as "Community Facilities District No. 09-M (Village 11 Brookfield Shea Otay)." SECTION 5. Description of Services. It is the intention of this City Council to finance certain services that are in addition to those provided in or required for the territory within the District and will not be replacing services already available. A general description of the services to be provided is as follows: The maintenance of (a) landscaped areas within the public rights-of-ways and other public easements throughout the District including medians, parkways, slopes and trails, (b) pedestrian bridges, (c) perimeter walls and fencing and (d) facilities that are directly related to storm water quality control throughout the District. Such maintenance shall include, but not be limited to, the provision of all labor, material, administration, personuel, equipment and utilities necessary to maintain such landscaped areas, pedestrian bridges, ~valls and fencing and storm water quality control facilities. SECTION 6. Special Tax. It is hereby further proposed that, except where funds are otherwise available, a special tax sufficient to pay for such services and related incidental expenses authorized by the Community Facilities District Law, secured by recordation of a continuing lien against all non-exempt real property in the District, will be levied armually within the boundaries of the District. Under no circumstances will the special tax be increased as a consequence of delinquency or default by the owner of any other parcel or parcels used for private residential purposes by more than 10 percent. For further particulars as to the rate and method of apportionment of the special tax proposed to be levied within the District, reference is made to thc attached and incorporated Exhibit "A", which sets forth in sufficient detail the method of apportiomnent to allo~v each landowner or resident within the District to clearly estimate the maximum amount that such person will have to pay for such services. The special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorem taxes. Any special taxes that may not be collected on the County tax roll shall be collected through a direct billing procedure by the Treasurer. SECTION 7. Public Hearing. Notice is given that on March 25, 2003, at the hour of 6 o'clock p.m., in the regular meeting place of the City Council being the Council Chambers, located at 276 4th Avenue, Chula Vista, Califomia, a public hearing will be held where this City Council xvill consider the establishment ofthe proposed District, the proposed rate and method of 2 apportionment of the special taxes proposed to be levied within the District, and all other matters as set forth in this resolution of intention. At the above-mentioned time and place for public hearing any persons interested, including taxpayers and property owners may appear and be heard. The testimony of all interested persons for or against the establishment of the District, the extent of the District, or the fitmishing of the services, will be heard and considered. Any protests may be made orally or in writing. However, any protests pertaining to the regularity or sufficiency of the proceedings shall be in writing and clearly set forth the irregularities and defects to which the objection is made. All written protests shall be filed with the City Clerk of the City Council on or before the time fixed for the public hearing. Written protests may be withdrawn in writing at any time before the conclusion of the public hearing. If a written majority protest against the establishment of the District is filed, the proceedings shall be abandoned. If such majority protest is limited to certain services or portions of the special tax, those services or that tax shall be eliminated by the City Council. SECTION 8. Election. If, following the public hearing described in the Section above, the City Council determines to establish the District and proposes to levy a special tax within the District, the City Council shall then submil the levy of the special taxes to the qualified electors of the District. If at least twelve (12) persons, who need not necessarily be the same twelve (12) persons, have been registered to vote within the District for each of the ninety (90) days preceding the close of the public hearing, the vote shall be by registered voters of the District, with each voter having one (1) vote. Otherwise, the vote shall be by the landowners of the District who were the owners of record at the close of the subject hearing, with each landowners or the authorized representative thereof, having one (1) vote for each acre or portion of an acre of land owned within the District. A successful election relating to the special tax authorization shall, as applicable, establish and/or change the appropriations limit as authorized by Article XIiIB of the California Constitution as it is applicable to this District. SECTION 9. Notice. Notice of the time and place of the public hearing shall be given by the City Clerk by causing a Notice of Public Hearing to be published in the legally designated newspaper of general circulation, such publication pursuant to Section 6061 of the Government Code, with such publication to be completed at least seven (7) days prior to the date set for the public hearing. PREPARED BY: APPROVED AS TO FORM BY: Cliflbrd T. Swanson John Kaheny Director of Engineering City Attorney J:',attorncy',reso'~c fd 09 M rcso of intention 3 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING AND DIRECTING THE PREPARATION OF A COMMUNITY FACILITIES DISTRICT REPORT FOR PROPOSED COMMUNITY FACILITIES DISTRICT NO. 09-M (VILLAGE 11 BROOKFIELD SHEA OTAY) WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "City Council"), has declared its intention to initiate proceedings to create a Community Facilities District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982', being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and ? of Article XI of the Constitution of thc State of Calilbrnia (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). This Comnmnity Facilities District shall hereinafter be designated as Community Facilities District No. 09-M (Village 11 Brookfield Shea Otay) (the '~District')~ and, WHEREAS, this City Council directs, pursuant to the provisions of Section 53321.5 of the Govcmment Code of the State of California, the preparation of a Community Facilities District Report to provide more detailed information relating to the proposed District, the services proposed to be financed from the proceeds of special taxes to be levied within the District, and estimate of the cost of providing such services. NOW, THEREFORE IT IS HEREBY RESOLVED: SECTION 1. The above recitals are all true and correct. SECTION 2. The Director of Engineering is hereby directed and ordered to prepare or cause the preparation of a Community Facilities District Report (the "Report") to be presented to this City Council, generally setting forth and containing the following: SERVICES: A full and compIete description of the public services proposed to be financed from the levy of special taxes within the District. COST ESTIMATE: A general cost estimate setting forth costs of providing such services. SPECIAL TAX: Further information regarding the implementation of the rate and method of apportionment of the special tax proposed to be levied within the District. SECTION 3. The Report, upon its preparation, shalI be submitted to this City Council for review, and the Report shall be made a part o£ the record of the public hearing on the Resolution of IntentiOn to establish such District. - Z7 PREPARED BY: APPROVED AS TO FORM BY: Cliflbrd T. Swanson John Kaheny ~ Director of Engineering City Attorney J:\attorney\reso\cfd 09-M Ordering Repo~l COUNCIL AGENDA STATEMENT Item ~ Meeting Date 2/1803 ITEM TITLE: A. Resolution of the City Council of the City of ChulaVista, California, adopting a boundary map showing the boundaries of the territory proposed to be annexed into Community Facilities District No. 97-2 B. Resolution of the City Council of the City of Chula Vista, California, declaring its intention to anncx territory into Community Facilities District No. 97-2 and to authorize the levy of a special tax therein to finance certain services SUBMITTED BY: Director of Engineering~J REVIEWED BY: City Man ~ag~2% (4/5ths Vote: Yes NoX) Brookfield Shea Ot%: (~")has requested the-City conduct proceedings to consider the annexation of' territory into Community Facilities District No. 97-2 (Preserve Maintenance District) (CFD 97-2) and that such territory be designated as Improvement Area C of CFD 97-2. The conditions of approval of the tentative map for Village 11 (Brookfield Shea Otay) require that said annexation be condition of the first final map for the project (condition #20). CFD 97-2 was formed in 1998 and funds the maintenance of areas which have been conveyed to the preserve in accordance with the Otay Ranch Resource Management Plan (Phase 1 and 2). The City has retained the services of MuniFinancial as special tax consultant and Best Best and Krieger LLP as legal counsel to provide assistance during the proceedings. Tonight's action will initiate the fomml proceedings to consider the annexation of Village 11 to CFD No. 97-2 and the designation of such territory as Improvement Area C. RECOMMENDATION: That Council: 1. Approve the resolution adopting an annextion map showing property to be annexed to Community Facilities District No. 97-2 (Preserve Maintenance District) Page 2, Item J Meeting Date 2/18/03 2. Approve the resolution declaring the intention to annex territory to Community Facilities District No. 97-2 and to designate such territory as Improvement Area C thereto. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: In July 1998, Council formed Community Facilities District No. 97-2 (Preserve Maintenance District). CFD 97-2 was originally divided into two Improvement Areas, hnprovement Area A and hnprovement Area B. hnprovement Area A funds the costs of the Resource Monitoring Progrmn as well as Preserve Operations and Maintenance within the initial boundaries of the Otay Ranch Preserve. Improvement Area B only funds the Resource Monitoring Program within that same area. With this annexation the formation of lrnprovcment Area C is proposed. Improvement Area C will pay for both Preserve Operations and Maintenance and the Resource Monitoring Program. It is necessary to form a new Improvement Area to finance the maintenance of open space and habitat preservation lands that will be within the boundaries of the Otay Ranch Preserve, as such boundarics may be modified from time to time. TetTitor¥ Proposcd to bo Annexed The proposed boundaries of the tcrritory proposed to be annexed to CFD No. 97-2, and designated as Improvement Area C encompass the parcels located within Village 11 owned by Brookfield Shea Otay. Brookfield Shea Otay is proposed to contain approximately 1,297 single-family detached homes, 66I condominium/townhome units, 315 apurtments, 10 acres of multi-use property and 9.3 acres of Community Pm'pose Facility ("CPF") property. Stall' has reviewed the proposed ammxation boundary map, identified as Annexation Map No. 3 to CFD 97-2, and has found it acceptable and ready for approval by Council. A reduced copy of the map is presented in Exhibit "B". Proposed Special Tax The rate and method of apportionment of the special taxes authorized to be levied within the existing boundaries of C FD 97-2 has four categories of taxation, as follows: · Develope~,l Parcels (Singlc Family and Multi-Family Residences) are taxed based on thc square lbotage oI' the structure. Commercial Parcels are taxed on the acreage o l' the parcel. · Thc Final Mapped properties which include all single family residential parcels t'or which a building permit has not been issued are taxed on acreage of the parcel. Page 3, Item ~ Meeting Date 2/18/03 · Property not categorized as Developed or Final Mapped Property is taxed on acreage of the parcel. · The Exempt Category includes all publicly owned parcels and Homeowner's Association parcels. Developed Parcels are those parcels for which a building permit has been issued. A new Rate and Method of Apportionment has been proposed for Improvement Area C using the same methodology and maximum special tax rates in the original rate and method of apportionment approved at the time of formation of CFD 97-2 in 1998. Collection oFTaxes At thc beginning of each fiscal year the City shall detem~ine the amount of the Special Tax Liability (budget plus reserve) of each Improvement Area. Then, the special taxes will first be levied within each of the Improvement Areas on the Residential Developed Parcels therein to fnnd the Special Tax Liability for such Improvement Area. If this pool of funds is not enough to fund the Special Tax Liability for such Improvement Area, as may be the case in the early years of development, the district will levy the special tax on the vacant land within such Improvement Area starting with Final Mapped Property. The buffer of having the vacant land covering any portion of the Special Tax Liability not funded from special taxes levied on Residential Developed Parcels within an hnprovclncnt Area will disappear once the Improvement Area has been fully developed. If the Special Tax Liability for any fiscal year for an Improvement Area is less than the maximum special tax authorized to be levied on the Developed Parcels within such hnprovement Area, thc actual rate of the special taxes to be levied on such Developed Properly in that specific ycar will be reduced accordingly. Following is a brief discussion of some key issues regarding the "Rate and Method of Apportioument (RMA) of Special Taxes" proposed to be established for ten-itory proposed to be annexed to CFD 97-2 and designated as Improvement Area C: (See Exhibit "A" for fidl description o['RMA) · Thc Maximum Special Tax Rates increases each year by the annual percentage change in the Consmner Price index. · The RMA provides that the annual budget for any year may include an amount deemed necessary to maintain an adequate level of this operating reserve fund. · The maximum special tax rates are based on the original Rate and Method of Apportionment of special taxes established for CFD 97-2 when CFD 97-2 was formed. If the actual square footage of development within Lmprovement Area C meets or exceeds the projections on which the special tax rates were based, the actual special tax rate necessary to be levied annually within hnprovement Area C J:\Engince~\AGI!NDA\97-2 ampex A113 RO[ Drall3 doc Page 4, Item 59 Meeting Date 2/18/03 to fuml the Special Tax Liability for Improvement Area C may be less than tiao atttborizecl maximum special tax. · The tax rate for the proposed Area "C" will be the same as existing properties within the CFD for the first year however the inflation factor for the proposed Area "C" is more conservative and will create different tax rates in the future. The new inflation factor is the annual percentage change in the San Diego Metropolitan Area all Urban Consumer Price Index, All items ("SDCPI"). The inflation factor for improvement Areas "A" and "B" is the lower of the SDCPI or the California 4~ Qtr. Per capita income, which has not been an accurate index the last two years. Proposed Maximum Special Taxes The proposed maximnm special tax rates for fiscal year 2002/03 for Improvement Area C of CFD 97-2 are as follows: Table I. Maximum Special Tax for Monitoring Special Tax Category Maximum Special Tax (Monitoring) Residential (per square foot) $0.0054 Non-Residential (per acre) $87.3126 Final Map Property (per acre) $87.3126 Undeveloped Property (per acre) $56.3516 Table 2. Maximum Special Tax for Operations & Maintenance Special Tax Category Maximum Special Tax __ (Operations & Maintenance) Residential (per square foot) $0.0086 Non-Residential (per acre) $138.6152 Final Map Property (per acre) $138.6152 Undeveloped Property (per acre) $89.4627 Resolutions There are two resolutions on today's agenda, which, if adopted, will accomplish tlac following: The RESOLUTION ADOPTING THE ANNEXATION MAP is the formal action adopting the Annexation Map No. 3 setting forth the boundaries of the territory proposed to be annexed to Commtmity Facilities District No. 97-2 (Preserve Maintenance District). Page 5, Item ~ Meeting Date 2/18/03 The RESOLUTION OF INTENTION is fl~e jurisdictional resolution declaring the intention of the CiD- Council to authorize the annexation of the territory within Annexation Map No. 3 to Community Facilities District No. 97-2 (Preserve Maintenance District) and to designate such territory as Improvement Area C thereto, to authorize the levy of a Special Tax, and to set the time.and place for the public hearing. Future Actions The public hearing and consideration of the adoption of a resolution submitting the authorization for the levy of special taxes to the qualified electors are scheduled for the City Council meeting of March 25, 2003 at 6:00 P.M. FISCAL IMPACT All costs of annexation to the district are being borne by the developers and the on-going administration will be funded entirely by the district. The City will receive the benefit of full cost recovering for staff cost involved in the annexation proceedings and district administration in perpetuity. Exhibits: "A" Rate and Method of Apportionment "B" Boundary Map JSEngineer\aGENDA\97-2 annex Al 13 ROI Draft3.doc Exhibit A CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 97-2, ANNEXATION NO. 3 RATE AND METHOD OF APPORTIONMENT IMPROVEMENT AREA C (Village 11, Brookfield Shea) A Special Tax of Community Facilities District No. 97-2 (Preserve Maintenance District) of the City of Chula Vista ("CFD") shall be levied on all Assessor's Parcels in Improvement Area C of the CFD and collected each Fiscal Year commencing in Fiscal Year 2002-03 in an amount determined through the application of the rate and method of apportionment of the Special Tax set forth below. All of the real property in the CFD, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meanings: "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable Final Subdivision Map, other final map, other parcel rr~p, other condominium plan, or functionally equivalent map or instrument recorded in the Office of the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage multiplied by 43,560. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or estimated costs incurred by the City, acting for and on behalf of the CFD as the administrator thereof, to determine, levy and collect the Special Taxes, including salaries of City employees and a proportionate amount of the Cit)?s general administrative overhead related thereto, and the fees of consultants and legal counsel providing services related to the administration of the CFD; the costs of collecting installments of the Special Taxes; and any other costs required to administer Area C of the CFD as determined bythe City. "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned assessor's parcel number. "Assessor's Parcel Map" means an official map of the Assessor of the County designating parcels by assessor's parcel nuxnber. "Building Square Foot or Square Footage" means the square footage as shown on an Assessor's Parcel's building permit of Residential Property excluding garages or other structures not used as living space. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. City of Chula Vista 2/5/2003 CFD 97-2, Improvement Area C, Village ll (Brookfield Shea) Page 1 "CFD" means CommunityFacilities District No. 97-2 of the Cityof Chula Vista. "City" means the Gtyof Chula Vista. "City Clerk" means the City Clerk for the City of Chula ~ista o'r his or her designee. "City Manager" means the City Manager for the City of Claula Vista or his or her designee. "Co~mnunity Propose Facility Property" or "CPF Property" means all Assessor's Parcels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City of Chtda Vista, acting-as the legislative body of the "County" means the County of San Diego, California. "Developed Property" means all Taxable Property for which a building permit was issued prior to the March 1st preceding the Fiscal Year in which the Special Tax is being levied. "Final Map Prope~" means a single family residential lot created by a Final Subdivision Map, but which is not classified as Developed Property. "Final Subdivision Map" means a subdivision of property creating single family residential buildable lots by recordation of a final subdivision map or parcel map pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.), or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which building permits may be issued without further subdivision and is recorded prior to March i preceding the Fiscal Year in which the Special Tax is being levied. "Fiscal Year" means the period starting July i and ending on the'following June 30. "hnprovement Area C" or "Area C" means Improvement Area C of the CFD, as identified on the bonndary map for the CFD as amended from ~:ime to time. "Land Use Class" means anyof the classes listed in Table ~'or Table 2. "Maximum Special Tax" means the maximum Special Tax, determined in accordance with Section C below that may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Non-Residential Property" means all Assessor's Parcel~ of Developed Property for which a building permit(s) has been issued for a structure or structures for non-residential "Operating Fund" means a fund that shall be maintained within the CFD for each Fiscal Year to pay for Resource Monitoring and/or Preserve Operations and Maintenance actMties and Administrative Expenses. City of Chula Vista 2/5/2003 CFD 97-2, Improvement Area C, Village 11 (Brookfield Shea) Page 2 "Operating Fund Balance" means the amount of funds in the Operating Fund at the end of the preceding Fiscal Year. "Operating Fund Requirement" means for any Fiscal Year an amount equal to the Resource Monitoring Fund Requirement and the Preserve Operations and Maintenance Fund Requirement for the current Fiscal Year in which Special Taxes are levied. "Preserve Operations and Maintenance" means those activities described in Attachment A hereto which is incorporated herein by this reference. "Preserve Operations and Maintenance Fund Requirement" means for any Fiscal Year an amount equal to the budgeted costs for Preserve Operations and Maintenance plus a pro- rata share of the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied. "Property Owner Association Property" means any property within the boundaries Area C of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument recorded with the County Recorder to, a property owner association, including any master or sub-association. "Public Property" means any property within the boundaries of Area C of the CFD that is, at the time of the CFD formation, expected to be used for any public purpose and is owued by or dedicated to the federal government, the State, the County, the City or any otlier pnblic agency. "Reserve Fund" means a fund that shall be maintained for the CFD each Fiscal Year to provide necessary cash flow for the first six months of each Fiscal Year, working capital to cover monitoring, maintenance and repair cost overruns and delinquencies in the payment of Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies. "Reserve Fund Balance" means the amount of funds in the Reserve Fund at the end of the preceding Fiscal Year. "Reserve Fund Requirement" means an amount equal to up to 100% of the Operating Fund Requirement for any Fiscal Year. "Residential Property" means all Assessor's Parcels of Developed Property for which a building permit(s) has been issued for purposes of constructing one or more residential dwelling unit. "Resource Management Plan" means the Otay Ranch Phase 1 Resource Management Plan also referred to as "The Otay Ranch Resource Management Plan" dated 10/28/93 and the Otay Ranch Phase 2, Resource Management Plan dated June 4, 1996, as both such plans nx~y be amended from dine to time. City of Chula Vista 2/5/2003 CFD 97-2, hnp~v~'ment Area C, village 11 (Blvokfield Shea) Page 3 "Resource Monitoring Program" means those described in Attachment B hereto which is incorporated herein by this reference. "Resource Monitoring Fund Requirement" means for any Fiscal Year an amount for each Improvement Area equal to the Improvement Area's fair share of the budgeted costs of the Resource Monitoring Program plus a pro rata share of the budgeted Administrative Expenses of the CFD for the current Fiscal Year in which Special Taxes are levied. An Improvement Area's "fair share" shall be based on the Improvement Area's percentage of the total acreage within the Otay Ranch General Development Plan Planning Area for which a Resource Monitoring Program funding mechanism has been established. "Special Tax" means the Special Tax levied pursuant to the provisions of sections C and D below in each Fiscal Year on each Assessor's Parcel of Developed Property' and Undeveloped Property in Area C to fund the Special Tax Requirement. "Special Tax Requirement" means that amount required in anyFiscal Year for Area C to: (i) pay the Resource Monitoring Fund Requirement, and Preserve Operations and Maintenance Fund Requirement, less the Operating Fund Balance, and (ii) pay any amounts required to establish or replenish the Reserve Fund to the Reserve Fund Requirement; (iii) pay for reasonably anticipated delinquent Special Taxes based on the delinquency rate for Special Taxes levied in the previous Fiscal Year. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of Area C of the CFD that are not exempt from the Special Tax pursuant to law or as defined below. "Undeveloped Prope~ty'' means, for each Fiscal Year, all Taxable Property not classified as Developed Property. City of Chula Vista 2/5/2003 CFD 97-2, hnpro~'ment Area C, Village 11 (Brookfield Shea) Page 4 B. ASSIGNMENT TO CATEGORIES OF SPECIAL TAX Each Fiscal Year using the definitions above, all Taxable Property within Area C of the CFD shall be classified as Category I, Category II, Category III or Exempt. Developed Propei~y, Final Map Property or Undeveloped Property, and shall be subject to Special Taxes pnrsnant to Sections C and D below. Developed Property shall be further assigned to a Land Use Class as specified in Table 1. C. MAXIMUM SPECIAL TAX RATE Category I Category I includes Developed Property within the District ("Category I"). The Maximmn Special Tax for Resource Monitoring, and Preserve Operatious and Maintenance that may be levied for Fiscal Year 2002/03 on Developed Property shall be at the rates set forth in Table 1 below. For Residential Property, the Special Tax shall be levied based upon Building Square Footage and for Non-Residential Property shall be levied based on Acreage. TABLE 1 Maximum Special Tax for Category I Community Facilities District No. 97-2 Improvement Area C Description Resource Operation & Monitoring Maintenance Residential $0.0054 $0.0086 Non-Residential $87.3126 $138.6152 Category II Category-II includes each Assessor's Parcel of Taxable Property within the District for which a Final Map has been recorded, but which is not classified as a Developed Parcel ("Category II"). The Maximum Special Tax for Resource Monitoring, and Preserve Operations and Maintenance that nny be levied for Fiscal Year 2002/03 on each Assessor's Parcel in Category II shall be as shown in Table 2 below (said amount to be levied pro rata for any portion of an Acre). TABLE 2 Maximum Special Tax for Category II Community Facilities District No. 97-2 Improvement Area C City of Cbula Vista 2/5/2003 CFD 97-2~ Implv~,ment Area C, Village 11 (Brookfield Sbea) Page Y Resource Monitoring Operation & Maintenance $87.3126 per Acre $138.6152 per Acre Category III Category III includes each Parcel of Taxable Property within the District not subject to Special Tax under any other category ("Category III"). The Maxinmm Special Tax which may be levied for Fiscal Year 2002/03 on Taxable Property within C~tegory III shall be as shown in Table 3 below (said amount to be levied pro rata for anypordon of an Acre). TABLE 3 Maximum Special Tax for Category III Community Facilities District No. 97-2 Improvement Area C Resource Monitoring Operation & Maintenance $56.3516 per Acre $89.4627 per Acre Exempt Category The Exempt Category includes each property owned, conveyed or irrevocably offered for dedication to a public agency, or land which is in the public right-of-way, unmanned utility easements which make utilization for other than the purpose set forth ha the easement impractical, common areas, private streets and parks, and open space lots ("Exempt Category"). In some instances an Assessor's Parcel of Developed Property may contain more than one Land Use Class. The Maximum Special Tax that may be levied on an Assessor's Parcel shall be the sum of the Maximum Special Tax levies that may be levied on all Land Use Classes located on that Assessor's Parcel. The CFD Administrator's shall determine the allocation to each Land Use Class. Annual Escalation of Maximum Special Tax The Maximum Special Tax as shown in the tables above that may be levied on each Assessor's Parcel in Area C shall be increased each Fiscal Year beginning in Fiscal Year 2003-04 and thereafter by a factor equal to the annual percentage change in the San Diego Metropolitan Area all Urban Consumer Price Index (All Items). D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04, and for each following Fiscal Year, the Council shall levy the Area C Special Tax at the rates established pursuant to steps 1 through 4 below so City of Chula Vista 2/5/2003 CFD 97-2, hnproqa'ment Area C, Village 11 (Brookfield Sbea) Page 6 that the amount of the Special Tax levied equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as follows: Step 1: Determine the revenue which could be generated by Parcels assigned to Category I by multiplying the Building Square Footage for Parcels classified as Residential Parcels by the Maximum Special Tax per Building Square Foot for Resource Morfitoring, and Preserve Operations and Maintenance for Parcels and adding to that the maximum revenue which could be generated by multiplying the total acres for Parcels classified as Non-Residential Parcels by the Maximum Special Tax per Acre for Resource Monitoring and Preserve Operations and Maintenance. Step 2: If the total revenue as calculated in Step 1 is greater than the estimated Special Tax Liability for Improvement Area C~ reduce the Special Tax for each Parcel proportionately so that the Special Tax levy for the Fiscal Year is equal to the Special Tax Liability for the Fiscal Year. Step 3: If the total revenue as calculated in Step 1 is less than the Special Tax Liability for Improvement Area C, a Special Tax shall be levied upon each Parcel within Improvement Area C, classified as Category II. The Special Tax for Parcels assigned to Category II shall be calculated as the lessor of: (i) The Special Tax Liability for Improvement Area C as determined by the City, less the total revenue generated for all Parcels under Step 1 above, divided by the total Acres for all Parcels within Improvement Area C assigned to Category II, OR (ii) The Maximum Special Tax rate for Parcels assigned to Category II. Step 4: If the total revenue as calculated in Step 1 and 3 is less than the Special Tax Liabiliu5 for Improvement Area C, a Special Tax shall be levied upon each Parcel within Improvement Area C classified as Category III. The Special Tax for Parcels assigned the Category III shall be calculated as the lessor of: (i) The Special Tax Liability for Improvement Area C as determined by the City, less the total revenue generated for all Parcels under Step I and 3 above, divided by the total Acres for all Parcels within Improvement Area C assigned to Category III, OR (ii) The Maximum Special Tax rate for Parcels assigned to Category III and within Improvement Area C. However, in the event it is determined that the Special Tax Liability for Improvement Area C includes delinquent Special Taxes from Parcel in Category III from the prior Fiscal Year, City of Chula Vista 2/5/2003 CFD 97-2, Improvement As-ea C, Village 11 (Brookfleld Shea) Page 7 the City shall determine the amount of delinquent taxes that arose from such Parcels and identify the owner(s). The amount of delinquent Special Taxes, if any, that arose from the applicable owner(s) shall first be divided by the total Category III Acres owned by such owner(s) and collected from the applicable owner(s) with the remaining portion of the Special Tax Liability not related to delinquent Special Taxes to be collected from all Parcels in Category IIf according to the procedure set forth in the preceding paragraph. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy permit for private residential use has been issued be increased by more than ten percent annually up to the Maximum Special Tax as a consequence of delinquency or default by the owner of any other Assessor's Parcel within Area C of the CFD. E. APPEALS Any landow~er or resident who pays the Special Tax and believes that the amotu~t of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred, the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any by the CFD Administrator, the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall fox,yard a copy of such notice to the City Manager who shall establish as pa~ of the proceedings and administration of the CFD, a special three-member Review/Appeal Connnittee. The Review/Appeal Committee may establish such procedures, as it deen~s necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the am~uai administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. F. MANNER OF COLLECTION Special Taxes levied pursuant to Section D above shall be collected in the same manner and at the same time as ordinary ad zalorem property taxes; provided, however, that the CFD Administrator may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet the financial obligations of Area C of the CFD or as otherwise determined appropriate by the CFD Ad~istrator. G. TERM OF SPECIAL TAX Taxable Propertyin Area C of the CFD shall remain subject to the Special Tax in perpetuity. City of Chula Vista 2/5/2003 CFD 97-2, Implvvement Area C, Village 11 (B~vokfieM Shea) Page 8 Attachment A Description of Preserve Operations and Maintenance Preserve Operations and Maintenance includes the maintenance, operation and management of the public or private property within boundaries of the (Dray Ranch Preserve, as such boundaries may be modified from time to time, required by the Resource Management Plan to be maintained as open space or habitat preservation land or both. Such maintenance, operations and management shall include, but not be limited to, the following: · Preserve Maintenance. Development, implementation and ongoing provision of programs to maintain, operate and manage preserve habitat values through: cultivation, irrigation, trimming, spraying, fertilizing, and/or treatment of disease or injury; removal of trimmings, rubbish, debris and other solid waste; maintenance of trails; removal and control of exotic plant species (weeds); and control of cowbirds through trapping. · Security. Development, implementation and ongoing provision of security programs to: enforce "no trespassing" rules; curtail activities that degrade resources, such as grazing, shooting, and illegal dumping; remove trash, litter, and other debris; control access; prohibit off-road traffic; and maintain fences and trails. · Preserve improvements: Acquire equipment and/or instaLl improvements necessary to maintain, operate and manage the open space and habkat preservation land described above. The above description of the Preserve Operations and Maintenance is general in nature. The actual maintenance, operations and management of the open space and habitat preservation land within the Otay Ranch Preserve may be modified from time to time as necessary in order to effectively provide such services in compliance with the requirements of the Resource Management Plat:. City of Chula Vista 2/5/2003 CFD 97.2, lmpro~'ment Area C, Village 11 (Brookfield Shea) Page 9 Attachment B Description of Resource Monitoring Implement the annual biota monitoring and reporting program consistent with the Resource Management Plan to identify changes in the quality and quantity of preserve resources including wildlife species, sensitive plants and sensitive habkat types. The above description of the Resource Monitoring is general in nat-am. The actual monitoring and reporting program may be modified from time to time as necessary in order to effectively provide such services consistent with the requirements of the Resource Management Plan. City of C~Itl,1 Vis ta 2/5/200.3 CFD 97-2, bnprovement ga-ea C, Village ll (B~vokfield Sbea) Page 10 Exhibit B RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING A BOUNDARY MAP SHOWING THE BOUNDARIES OF THE TERRITORY PROPOSED TO BE ANNEXED INTO COMMUNITY FACILITIES DISTRICT NO. 97-2 WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA (the "City Council"), desires to initiate proceedings to annex territory to an existing Community Facilities District and to designate such annexed territory as a separate improvement area therein pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California, and specifically Article 3.5 thereof. The existing Community Facilities District has been designated as COMMUNITY FACILITIES D1STRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) (the "District"); and, WHEREAS, there has been submitted a map entitled "Annexation Map No. 3 To Community Facilities District No. 97-2 (Preserve Maintenance District), City Of Chula Vista, County Of San Diego, State Of California" (the "Annexation Map") showing the territory proposed to be annexed to the District (the "Territory"). NOW, THEREFORE, IT 1S HEREBY RESOLVED AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. The Annexation Map showing the Territory proposed to be annexed to the District and to be subject to the levy of a special tax is hereby approved and adopted. SECTION 3. A certificate shall be endorsed on the original and on at least one (1) copy of Annexation Map, evidencing the date and adoption of this Resolution, and within fifteen (15) days after the adoption of the Resolution fixing the time and place of the hearing on the intention to annex or extent of the annexation to the District, a copy of such map shall be filed with the correct and proper endorsements thereon with the County Recorder, all in the manner and form provided for in Section 3111 of the Streets and Highways Code of the State of California. Presented by: Approved as to form by: Cliftbrd T.Swanson John M. Kaheny Director of Engineering City Attorney RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING ITS INTENTION TO ANNEX TERRITORY INTO COMMUNITY FACILITIES DISTRICT NO. 97-2 AND TO AUTHORIZE THE LEVY OF A SPECIAL TAX THEREINTO FiNANCE CERTAIN SERVICES WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA, ("City Council"), formed a Community Facilities District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982"~ being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act"), and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). The Community Facilities District has been designated as COMMUNITY FACILITIES DISTR1CT NO. 97-2 (PRESERVE MAiNTENANCE DISTRICT) (the "District"); and, WHEREAS, the City Council desires to initiate proceedings to consider the annexation of certain real property to the District (the "Territory") and to designate the Territory as Improvement Area C of the District; and WtlEREAS, a map entitled "Annexation Map No. 3 to Community Facilities District No. 9%2 (Preserve Maintenance District) City of Chula Vista, County of San Diego, State of California" (the "Annexation Map") showing the Territory proposed to be annexed to the District has been submitted, which map has been previously approved and a copy of the map shall be kept on file with the transcript of these proceedings; and WHEREAS, this City Council now desires to proceed to adopt its Resolution of Intention to annex the Territory to District, to describe the territory included within District and the Territory proposed to be annexed thereto, to designate the Territory as Improvement Area C of the District, to specify the services to be financed from the proceeds of the levy of special taxes within the Territory, to set and specify the special taxes that would be levied within the Territory to finance such services, and to set a time and place for a public hearing relating to the annexation of the Territory to the District and the levy of special taxes within the Territory. NOW, THEREFORE, IT 1S HEREBY RESOLVED AS FOLLOWS: RECITALS SECTION 1. The above recitals are all true and correct. LEGAL AUTHORITY SECTION 2. These proceedings for annexation are initiated by this City Council pursuant to the authorization of the Community Facilities District Law. INTENTION TO ANNEX TERRITORY AND DESIGNATE IMPROVEMENT AREA C; DESCRIPTION OF TERRITORY AND THE DISTRICT SECTION 3. This legislative body hereby determines that the public convenience and necessity requires that the Territory be added to the District and this City Council declares its intention to annex the Territory to the District and to designate the Territory as Improvement Area C of the District. A description of the Territory is as Follows: All that property within the Territory proposed to be annexed to the District, as such property is shown on the Armexation Map as previously approved by this legislative body, a copy of which is on file in the Office of the City Clerk and shall remain open for public inspection. A general description of the territory included in the District is hereinafter described as follows: All that property and territory as originally included within the District and as subsequently annexed thereto, as such property was shown on a map of the original District as approved by this City Council and designated by the name of the original District and on Annexation Map Nos. 1 and 2. A copy of such maps are on file in the Office of the City Clerk and have also been filed in the Office of the County Recorder. SERVICES AUTHORIZED TO BE FINANCED BY THE DISTRICT SECTION 4. The services that are authorized to bc financed by the District from the proceeds of special taxes levied within the District (the "Services") are generally described in Exhibit A attached hereto and incorporated herein by this reference. The District shall finance all direct, administrative and incidental annual costs and expenses necessary to provide the Services. The Services authorized to be financed by the District from the proceeds of special taxes levied within District are the types of services to be provided in the Territory. If and to the extent possible the Services shall be provided in common within the District and the Territory. SPECIAL TAXES SECTION 5. It is the further intention of this City Council body that, except where funds are otherwise available, a special tax sufficient to pay for the Services and related incidental expenses authorized by thc Community Facilities District Law, secured by recordation ora continuing lien against all non-exempt real property in the Territory, will be levied annually within the boundaries of such Territory. For further particulars as to the rate and method of apportionment of the proposed special tax, reference is made to Exhibit B (the "Special Tax Formula"), which is attached hereto and incorporated herein by this reference and which sets forth in sufficient detail the method of apportionment of such special tax to allow each landowner or resident within the Territory to clearly estimate the maximum amount that such person will have to pay. The special taxes herein authorized shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency, as applicable for ad valorem taxes; however, as applicable, this legislative body may, by resolution, establish and adopt an alternate or supplemental procedure as necessary. Any special taxes that may not be collected on the County tax roll shall be collected through a direct billing procedure by the Treasurer of the City of Chula Vista, acting for and on behalf of the District. Upon recordation of a Notice of Special Tax Lien pursuant to Section 3114.5 of the Streets and Highways Code of the State of California, a continuing lien to secure each levy of the special tax shall attach to all non-exempt real property in the Territory and this lien shall continue in force and effect until the special tax obligation is prepaid and permanently satisfied and the lien canceled in accordance with law or until collection of the tax by the legislative body ceases. No alteration of the special tax rates authorized to be levied xvithin the District shall occur as a result of the annexation of the Territory to the District. PUBLIC HEARING SECTION 6. Notice is given that on March 25, 2003, at the hour of 6:00 p.m., in the regular meeting place of the legislative body, being the Council Chambers, 276 Fourth Avenue, Chula Vista, California, a public hearing will be held where this legislative body will consider the authorization for the annexation of the Territory to the District, the proposed method and apportionment of the special tax to be levied within the Territory and all other matters as set forth in this resolution of intention. At such public hearing, the testimony of all interested persons for or against the annexation of the Territory or the levying of special taxes within the Territory will be heard. At such public hearing, protests against the proposed annexation of the Territory, the levy of special taxes within the Territory or any other proposals contained in this resolution may be made orally by any interested person. Any protests pertaining to the regularity or sufficiency of the proceedings shall be in writing and shall clearly set forth the irregularities or defects to which objection is made. All written protests shall be filed with the City Clerk prior to the time fixed for the public hearing. Written protests may be withdrawn at any thne before the conclusion of the public hearing. MAJORITY PROTEST SECTION 7. If (a) 50% or more of the registered voters, or six (6) registered voters, whichever is more, residing within the District, (b) 50% or more of the registered voters, or six (6) registered voters, whichever is more, residing within the Territory, (c) owners of one-half or more of the area of land included in the District, or (d) owners of one-half or more of the area of land included in the Territory, file written protests against the proposed annexation of the Territory to the District and such protests are not withdrawn so as to reduce the protests to less than a majority, no further proceedings shall be undertaken for a period of one year from the date of the decision by the City Council on the issues discussed at the public hearing. ELECTION SECTION 8. Upon the conclusion of the public hearing, if the legislative body detemfines to proceed with the annexation, a proposition shall be submitted to the qualified electors offhe Temtory. The vote shall be by registered voters within the Territory; ho~vever, if there are less than 12 registered voters, the vote shall be by landowners, with each landowner having one vote per acre or portion thereof within the Territory. NOTICE SECTION 9. Notice ofthe time and place ofthe public hearing shall be given by the City Clerk by publication in a legally designated newspaper of general circulation, said publication pursuant to Section 6061 of the Government Code, with said publication to be completed at least seven (7) days prior to the date set for the public hearing. Presented by: Approved as to form by: Clifford T. Swanson John M. Kaheny Director of Engineering City Attorney J:\attorney\reso\cfd 97-2 reso of intent CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 97-2, ANNEXATION NO. 3 RATE AND METHOD OF APPORTIONMENT IMPROVEMENT AREA C (Village 11, Brook:field Shea) A Special Tax of Community Facilities District No. 97-2 (Preserve Maintenance District) of the City of Chula Vista ("CFD") shall be levied on all Assessor's Parcels in Improvement Area C of the CFD and collected each Fiscal Year commencing in Fiscal Year 2002-03 in an amount determined through the application of the rate and method of apportionment of the Special Tax set forth below. All of the real property in the CFD, unless exempted by la~v or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meanings: "Acre or Acreage" means the land area of an Assessor's Parcel as shoxvn on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shoxvn on the applicable Final Subdivision Map, other final map, other parcel map, other condominium plan, or functionally equivalent map or instrument recorded in the Office of the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage multiplied by 43,560. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Part l, Division 2 of Title 5 of the Government Code of the State of California. "Administrative Expenses" means the actual or estimated costs incurred by the City, acting for and on behalf of the CFD as the administrator thereof, to determine, levy and collect the Special Taxes, including salaries of City employees and a proportionate amount of the City's general administrative overhead related thereto, and the fees of consultants and legal counsel providing services related to the ad~rdnistration of the CFD; the costs of collecting installments of the Special 'Faxes; and any other costs required to administer Area C of the CFD as determined by the City. "Assessor's Parcel" means a lot ()r parcel shown in an Assessor's Parcel Map xvith an assigned assessor's parcel number. "Assessor's Parcel Map" means an official map of the Assessor of the County. designating parcels by assessor's parcel number. "Building Square Foot or Square Footage" means the square footage as shown on an Assessor's Parcel's building permit of Residential Property excluding garages or other structures not used as living space. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining thc Special Tax Requirement and providing for the lexT and collection of the Special Taxes. Ci(y orChids Vista ~,/ [2~2(1().~/,~/2~X~.~ CED 97-2, Improven~et~t A~ea C, Vigage 11 (BrooM]eld Shea) Page 1 "CFD" mcans Communit7 Facilities Disu-ict No. 97-2 of the City of Chula Vista. "City" means the CitT of Chula Vista. "City Clerk" means the City. Clerk for the Ciu, of Chula Vista or his or her designee. "City Manager" means the City Manager for the City of Chula Vista or his or her designee. "Community Purpose Facility Property" or "CPF Property" means all Assessor's Parcels ~vhich are classified as communiU, purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the Cit7 Council of the City of Chula Vista, acting as the legislative body of the CFD. "County" means the County of San Diego, California. "Developed Property" means all Taxable Property for ~vhich a building permit was issued prior to the March Ist preced/ng the Fiscal Year in xvhich the Special Tax is being levied. "Final Map Property" means a single fa~rdly residential lot created by a Final Subdivision Map, but which is not classified as Developed Propert7. "Final Subdivision Map" means a subdivision of propertT creating single family residential buildablc lots by recordation of a final subdivision map or parcel map pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.), or recordation of a condonfinium plan pursuant to California Civil Code 1352, that creates individual lots for ~vhich building per~rdts may be issued without further subdivision and is recorded prior to March 1 preceding the Fiscal Year in ~vhich the Special Tax is being levied. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "hnprovement Area C" or "Area C" means Improvement Area C of the CFD, as identified on the boundaU- map for the CFD as amended from time to tm~e. "Land Use Class" means any of the classes listed in Table 1 or Table 2. "Maximum Special Tax" mcans the maxmaum Special Tax, determined in accordance with Section C below that may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Non-Residential Property" means all Assessor's Parcels of Developed Property for which a building pernfit(s) has been issued for a su'ucture or structures for non-residential use. "Operating Fund" means a fund that shall be maintained xvithin the CFD for each Fiscal Year to pay for Rcsource Monitoring and/or Preserve Operations and Maintenance activities and Administrative Expenses. CED 97-2, [n:pcovement Area C, Village ll (Broo~-t~eld $]~ca) Page 2 "Operating Fund Balance" means the amount of funds in the Operating Fund at the end of the preceding Fiscal Year. "Operating Fund Requirement" means for any Fiscal Year an amourrt equal to the Resource Monitoring Fund Reqtdrement and the Preserve Operations and Maintenance Fund Requirement for the current Fiscal Year in xvhich Special Taxes are levied. "Preserve Operations and Maintenance" means those actMties described in Attachment A hereto xvhich is incorporated herein by this reference. "Preserve Operations and Maintenance Fund Requirement" means for any Fiscal Year an amount equal to the budgeted costs for Preserve Operations and Maintenance plus a pro rata share of the budgeted Adrmnistrative Expenses of the District for the current Fiscal Year in ~vhich Special Taxes are levied. "Property Owner Association Property" means any property within the boundaries Area C of the CFD that is oxvned by, or irrevocably dedicated as indicated in an instrument recorded with the CuunU' Recorder tu, a property owner association, including any master or sub association. "Public Property" means any property within thc boundaries of Area C of the CFD that is, at the time of the CFD formation, expected to be used for any public purpose and is owned by or dedicated to the federal government, the State, the County., the City or any other public agency. "Reserve Fund" means a fund that shall be maintained for thc CFD each Fiscal Year to provide necessary cash flow for the fncst six mondis of each Fiscal Year, xvorking capital to cover monitoring, maintenance and repair cost overruns and delinquencies in the payment of Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies. "Reserve Fund Balance" means the amount ()f funds in the Reserve Fund at the end of the preceding Fiscal Year. "Reserve Fund Requirement" means an amount equal to up to 100% of the Operating Fund Requkement for any Fiscal Year. "Residential Property" means all Assessor's Parcels of Developed Property for ~vhich a building permit(s) has been issued fbr purposes of constructing one or more residential dwelling unit. "Resource Management Plan" means the Otay Ranch Phase I Resource Management Plan also referred to as "The Otay Ranch Resource Management Plan" dated 10/28/93 and the Otay Ranch Phase 2, Resource Management Plan dated June 4, 1996, as both such plans may be amended from tinge to thnc. City ot' Clml~i Vista 2f l~) 32~/~/2t~).~ CFD 97-2, Improvement Area C, Vi&tge 11 (Btookl~cld SIJea) Page "Resource Monitoring Program" means thosc described in Attachment B hereto which is incorporated herein by this reference. "Resource Monitoriug Fund Requirement" means for any Fiscal Year an amount for each Improvement Area equal to the Improvement Area's fair share of the budgeted costs of the Resource Monitoring Program plus a pro rata share of the budgeted Administrative Expenses of the CFI) for the current Fiscal Year in xvhich Special Taxes are levied. An Improvement Area's "fair share" shall be based on the Improvement Area's percentage of the total acreage xvithin the Otay Ranch General Development Plan Planning Area for ~vlfich a Resource Monitoring Program funding mechamsm has been established. "Special Tax" means the Special Tax levied pursuant to the provisions of sections C and D below in each Fiscal Year on each Assessor's Parcel of Developed Property and Undeveloped Property in Area C to fund the Special Tax Requirement. "Special Tax Requirement" means that amount required in any Fiscal Year for Area C to: (i) pay the Resource Monitoring Fund Requirement, and Preserve Operations and Maintenance Fund Requirement, less the Operating Fund Balance, and (ii) pay any amounts required to establish or replenish the Reserve Fund to the Reserve Fund Requirement; (iii) pay for reasonably anticipated delinquent Special Taxes based on the delinquency rate for Special Taxes levied in the previous Fiscal Year. "State" means thc State of California. "Taxable Property" means all of the Assessor's Parcels ~vithin the boundaries of Area C of thc CFD that are not exempt from the Special Tax pursuant to la~v or as defined below'. "Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified as Developed Propert7. City o£ Ct~ala Vist~ ~)~t2/,¢/£~tR',*.~,' I CID 97-2, Impro~,emet~t A~e~t C, Vil~ao~e H (BrooktTeld Shea) Page 4 B. ASSIGNMENT TO CATEGORIES OF SPECIAL TAX Each Fiscal Year using the definitions above, all Taxable Property within Area C of the CFD shall be classified as Category l, Category II, Category III or Exempt. Developed Property, Final Map Property or Undeveloped Property, and shall be subject to Special Taxes p~suant to Sections C and D below. Developed Property shall be further assigned to a Land Use Class as specified in Table 1. C. MAXIMUM SPECIAL TAX RATE Category I CategotT I includes Developed Property within the District ("Categox3, I'). The Maxm,um Special Tax for Resource Monitoring, and Preserve Operations and Maintenance that may be levied for Fiscal Year 2002/03 on Developed Property shall be at the rates set forth in Table 1 below. For Residential ProperS', the Special Tax shall be levied based upon Building Square Footage and for Non Residential Property shall be levied based on Acreage. TABLE 1 Maximum Special Tax for Category I Community Facilities District No. 97-2 Improvement &rea C Description Resource Operation & Monitoring Maintenance Residential $0.0054 $0.0086 Non-Residential $87.3126 $138.6152 Category II Category II includes each Assessor's Parcel of Taxable Property within thc District for which a Final Map has been recorded, but which is not classified as a Developed Parcel ("Category II"). The Maximum Special Tax for Resource Mo~fitoring, and Preserve Operations and Maintenance that may be levied for Fiscal Year 2002/03 on each Assessor's Parcel in Category II shall be as sho~vn in Table 2 beloxv (said amount to be levied pro rata for any portion of an Acre). TABLE 2 Maximum Special Tax for Category II Community Facilities District No. 97-2 Improvement &rea C City o£ Ctmla Vista CFD 97-2, Improvement Area C, VHla~re 11 (Brookl~eld Shea) Page Resource Monitoring Operation & Maintenance $87.3126 per Acre $138.6152 per Acre Category III Category II1 includes each Parcel of Taxable Property within the District not subject to Special Tax under any other category ("Category III"). ']7he Ma:cinaum Special Tax wlfich may be levied for Fiscal Year 2002/03 on Taxable Property within Categot1 III shall be as shoxvn m Table 3 beloxv (said amount to be levied pr() rata fnr any portion of an Acre). TABLE 3 Maximum Special Tax for Category III Community Facilities District No. 97-2 Improvement Area C Resource Monitoring Operation & Maintenance $56.3516 per Acre $89.4627 per Acre Exempt Category Thc Exempt Category includes each property owned, conveyed or ~rrevocably offered for dedication to a pubhc agency, or land ~vhich is in the pubhc right-o~way, unmanned utiLity easements which make utihzatinn for other than the purpose set forth in the easement Lrnpractical, common areas, private streets and parks, and open space lots ("Exempt Category"). In some instances an Assessor's Parcel of Developed Property may contain more than one Land Use Class. The Maximum Special Tax that may be levied on an Assessor's Parcel shah be the sum of the Maxin~um Special Tax levies that may be levied on all Land Use Classes h)cated on that Assessor's Parcel. The CFD Administrator's shall determine the allocation to each Land Use (]lass. Annual Escalation of Maximum Special Tax Thc Maxhnum Special Tax as shown in the tables above that may be levied on each Assessor's Parcel in Area C shah be increased each Fiscal Year beginning in Fiscal Year 2003 04 and thereafter by a factor equal to thc annual percentage change in thc San Diego Metropolitan Area all Urban Consumer Price Index (All Items). D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2003-04, and for each following Fiscal Year, the Council shall levy the Area C Special Tax at the rates established pursuant to steps 1 through 4 belo~v so City o£ Cbula Vista ~12/20{~$L~/~/2[)0.~ CFD 97-2, Ict}provemetit /flea C, Vl~:t~-e 11 (B~'ooSdTt, ld St~ea) Page 6 that the amount of thc Special Tax levied equals the Special Tax Requirement. The Special Tax shall be levied each Fiscal Year as folloxvs: Step 1: Determine the revenue xvhich could be generated by Parcels assigned to Category I by multiplying the Building Square Footage for Parcels classified as Residential Parcels by the Maximum Special Tax per Building Square Foot for Resource Monitoring, and Preserve Operations and Maintenance for Parcels and adding to that the maximum revenue ~vhich could be generated by multiplying the total acres for Parcels classified as Non-Residential Parcels by the Maximum Special 'Fax per Acre for Resource Monitoring and Preserve Operations and Maintenance. Step 2: If the total revenue as calculated in Step 1 is greater than the estimated Special Tax l~iability for Improvement Area C, reduce the Special Tax for each Parcel proportionately so that thc Spcciai Tax lc~w fi~r the Fiscal Year is equal to the Special Tax Liability for the Fiscal Year. Step 3: If the total revenue as calculated in Step 1 is less than the Special Tax Liability for Improvement Area C, a Special Tax shah be levied upon each Parcel within Improvement Area C, classified as Category Il. The Special Tax for Parcels assigned to Category II shall be calculated as the lessor of: (i) The Special Tax Liability for Improvement Area C as determined by the City, less the total revenue gcnerated for all Parcels under Step 1 above, divided by thc total Acres fl)r all Parcels within Improvement Area C assigned to Category II, OR (ii) The Maximum Special 'Fax rate for Parcels assigned to Category II. Step 4: If the total revenue as calculated in Step I and 3 is less than the Special Tax Liability, for h-nprovement Area C, a Special Tax shall be levied upon each Parcel within Improvement Area C classified as Category III. The Special Tax for Parcels assigned the Category III shall be calculated as the lessor of: (i) The Special Tax l,iabilit7 for Improvement Area C as determined by the City, less the total revenue generated for all Parcels under Step 1 and 3 above, divided by the total Acres for all Parcels wittfin Improvement Area C assigned to Category 111, OR (ii) The Maximum Special Tax rate for Parcels assigned to Category III and within Improvement Area C. However, in the event it is dctcrrmned that the Special Tax Liability for Improvement Area C includes dehnquent Special Taxes from Parcel in Category III from the prior Fiscal Year, City o[ Ctmla Vista 2/12/2(1(112/$/2tX1.3' ] CFD 97-2, Improvement Area C, Village H (Brookt~eld $fica) Page 7 the CitT shall determine the amount of delinquent taxes that arose from such Parcels and identify the owner(s). The amount of delinquent Special Taxes, if any, that arose from the applicable oxvner(s) shall fa'st be divided by the total Category III Acres owned by such owner(s) and collected from the applicable owner(s) xvith the remaining portion of the Special Tax I,iability not related to delinquent Special Taxes to be collected from all Parcels in ('mtegory I1[ according to the procedure set fi)rrb in the preceding paragraph. Notxvithstanding the above, under no circumstances xvlll the Special Tax levied against any Assessor's Parcel of Residential ProperPy or Multi Family Property for which an occupancy perncfit for private residential use has been issued be increased by more than ten percent annually up to the Ma:re'hum Special Tax as a consequence of delinquency or default by the owner of any other Assessor's Parcel xvithin Area C of the CFD. E. APPEALS Any landoxvner or rcsident xvho pays the Special Tax and believes that the amount of the Special Tax levied on their Assessnr's Parcel is in error shall fzrst consult with the CFD Administrator regarding such error. If fi)llowing such consultation, the CFD AdmirListrator detenrfines that an error lias occurred, the CFI) Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any by the CFD Administrator, thc landoxvner or resident believcs such error still exists, such person may fde a written notice with the City Clerk of the City appealing the amount of the Specml Tax levied on such Assessor's Parcel. Upon thc receipt of any such notice, the City Clerk shall forxvard a copy ()f sucli notice to thc City Manager who shall establish as part of the proceedings and administration of the CFI), a special three-member Review/Appeal (2omlnittee. The Review/Appeal Committee may estabhsh such procedures, as it deems uecessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make deternfinations relative to the annual adnfinisu'ation of thc Special Tax and any landnwner or resident appeals, as herein specified. The decision of thc Review/Appeal Cotmmttee shall be final and binding as to all persons. F. MANNER OF COLLECTION Special Taxes levied pursuant to Section D above shall be collected in the same manner and at the same time as ordinary aa' ,~/0rem property taxes; provided, hoxvever, that the CFD Administrator may directly bill thc Special Tax, may collect Special -['axes at a different tm~e or in a different manner if necessary to meet the financial obligations of Area C of thc CFD or as otherxvise deternnned appropriate by the C[:D Administrator. G. TERM OF SPECIAL TAX Taxable Property in Area C of the CFD shall remain subject to the Special Tax in perpetuity. City o£ Cbula Vista ~20.f),~/~/20(~,~ CFD 97-2, Io;pcovemet~t A~t~a ~, Village 11 (Brookl]eld Shea) Page Attachment A Description of Preserve Operations and Maintenance Preserve Operations and Maintenance includes dm maintenance, operation and management of the public or private properP), within boundaries of the Otay Ranch Preserve, as such boundaries may be modified from time to time, required by the Resource Management Plan to be maintained as open space or habitat preservation land or both. Such ma/a~tenance, operations and management shall luclude, but not be limited to, the folloxving: · Preserve Maintenance. Development, hnplementation and ongoing provision of programs to maintain, operate and manage preserve habitat values through: cultivation, irrigation, trinmfing, spraying, fertilizing, and/or U'eatment of disease or injury; removal of trimrmngs, rubbish, debris and other solid waste; maintenance of trails; removal and control of exotic plant species (weeds); and control of cowbirds through trapping. · Sccurity. Development, implementation and ongoing provision of securiU, programs to: enforce "no trespassing" rules; curtail activities that degrade resources, such as grazing, shooting, and illegal dumping; remove trash, litter, and other debris; control access; prohibit off-road traffic; and maintain fcnces and trails. · Preserve improvements: Acquire equipment and/or install improvements necessary to maintain, operate and manage thc ()pen space and habitat preservation land described above. The aboxe description of the Preserx'e Operations and Maintenance is general in nature. The actual maintenance, operations and management of the open space and habitat preservation land within tine Otay Ranch Preserve may be modified from time to time as necessary in order to effectively provide such services in compliance xvith the requirements of the Resource Management Plan. City of Chula Vista ~/12/20{~12~<5/24X~.~ I CFD 97-2, Improven:et;t Area C, Village H (BrooMYeld Shea) Page 9 Attachment B Description of Resource Monitoring Implement the annual biota momtoring and reporting program consistent with the Resource Management Plan to identify changes in the quality and quantit3, of preserve resources including xvildhfe species, sensitive plants and sensitive habitat types. The above description of the Resource Monitoring is general in nature. The actual monitoring and reporting program may be modified from tm~e to time as necessary in order to effectively provide such services consistent with the requirements of the Resource Management Plan. Ci(v ot' Chula Vista 2/12/20(].32/g/2tX).3 ] CFD 97-2, ln:provement Area C, V~Tlage 11 (Brool~field Shea) Page 10 COUNCIL AGENDA STATEMENT Item {~ Meeting Date 2/18/03 1TEM TITLE: Resolution Amending the FY02-03 Engineering Department Budget, deleting one Civil Engineer position and adding one Senior Management Analyst Position SUBMITTED BY: Director of EngiOeering~ The nature of the work being perforhxdd by a civil engineer within the Administrative & Fiscal Services Division of Engineering has evolved such that the Civil Engineer now performs work of a predominantly fiscal and analytical nature. These tasks and duties are more appropriately performed by a Senior Management Analyst. RECOMMENDATION: That the City Council adopt a resolution amending the Fiscal Year 2002-03 Engineering Department budget, deleting one Civil Engineer position and adding one Senior Management Analyst position. BOARDS AND COMMISSIONS: None DISCUSSION: The duties and responsibilities associated with assessment district formation, fiscal management of community facilities districts, budgeting of open space districts and other related functions within the Engineering Department's Administrative & Fiscal Services Division have evolved over time. These functions are predominantly of a fiscal nature which do not fit within the typical responsibilities of a Civil Engineer, nor take advantage of the skills that Civil Engineers possess. Due to the fiscal tracking and analytical nature of the present work, this position would be more appropriately staffed by a Senior Management Analyst. At the same time, an immediate budgeted vacant Civil Engineer position exists within the newly formed Infrastructure Services Division. This division will be responsible for infrastructure design activities within the City, including projects related to the formation of Act 1911 special assessment districts. Organizationally, this a perfect opportunity to move the existing Civil Engineer in Administrative & Fiscal Services to the Infrastructure Services vacancy and reclassify the Civil Engineer position in Administrative & Fiscal Services to a Senior Management Analyst position. The Human Resources Department has reviewed the issue, discussed the concept with the Engineering Department and concurs that this approach is a logical and proper use of City staff. FISCAL IMPACT: The recommended amendments to the Engineering Department budget would result in a net reduction in impact to the general fund of $9,939 for the remainder of FY02-03. Additional salary savings of $19,725 will be realized in FY 03-04. J:\ENGADMIN/,SMAI 1,2-18 03doc RESOLUTION NO. 2003- RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FY02-03 ENGINEERING DEPARTMENT BUDGET, DELETING ONE CIVIL ENGINEER POSITION AND ADDING ONE SENIOR MANAGEMENT ANALYST POSITION WHEREAS, the nature of the work being performed by a Civil Engineer within the Administrative & Fiscal Services Division of Engineering has evolved such that the Civil Engineer now perfom~s work of a predominantly fiscal and analytical nature; and WHEREAS, these tasks and duties are more appropriately performed by a Senior Maoagement Analyst; and WHEREAS, the Human Resources Department has reviewed the issue, discussed the concept with the Engineering Department and concurs that this approach is a Iogical and proper usc of City staff: NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does herby amend the FY02-03 Engineering Department Budget by deleting one Civil Engineer position and adding one Senior Management Analyst Position. Presented by: Approved as to form by: C'ifford T. Swanson Jo~_~M. Kaheny /-~fl Director of Engineering ~,i'ty Attorney ~ J:/Altomey/rcso/sr management analyst COUNCIL AGENDA STATEMENT Item ~ Meeting Date ITEM TITLE: Resolution Maintaining the Existing City Investment Policy and Guidelines SUBMITTED BY: Assistant City Manager ~P~ REVIEWED BY: City Ma n ag~e~r~ ~)~ -~l ~, (415ths Vote: Yes No X) The City has an existing Investment~olicy and Guidelines to insure the prudent management of idle cash. State law requires that the Investment Policy and Guidelines be adopted by resolution of the City Council on an annual basis after being reviewed to ensure consistency with the overall objectives of preservation of principal, liquidity, and yield, and its relevance to current law and financial and economic trends. It is recommended that the Council adopt the resolution maintaining the existing Investment Policy and Guidelines. In addition, the Quarterly Report of Cash and Investments for the quarter ended December 31,2002 is submitted for your information. RECOMMENDATION: That Council adopt Resolution maintaining the existing Investment Policy and Guidelines. BOARDS & COMMISSION RECOMMENDATION: Not Applicable DISCUSSION: The City's Investment Policy and Guidelines adopted on February 12, 2002 by Resolution 2002-039 (copy attached) is intended to provide direction for the prudent investment of temporarily idle cash, and for maximizing the efficiency of the cash management process. The stated goal is to enhance the economic condition of the City while insuring the safety of funds invested. The policy includes a list of specific investment instruments available under the relevant California Government Code provisions, 53600 et. seq. and 53635 et. seq. In addition to specific instruments, investment in the Local Agency Investment Fund (LAIF), an investment pool administered by the State Treasurer and the County Treasurer's Investment Pool are also included. Each investment transaction is made in the context of first insuring the "safety" of principal, second, investing only for that timeframe that the cash is not needed for operational purposes ("liquidity"), and last seeking the highest return possible ("yield") provided that the first two factors are met. It is recommended that the existing Policy be re-adopted as is. The Policy was recently amended last year to reflect some legislative changes, and no further amendments are recommended at this time. Page 2, Item / Meeting Date 2LI.SJ.Q~ Attached for your information is the quarterly report of investments as of December 31, 2002. The Pooled Investment Portfolio ($204,616,365) and the Cash/Investments with Fiscal Agents ($151,202,380) continue to be invested in accordance with the Government Code and the Council Investment Policy. During the quarter, five investments matured, and eighteen were called prior to their maturity date. Other than routine investment in money market funds by fiscal agents, twenty-five federal government securities were purchased during the quarter totaling $53,000,000 and carrying interest rates ranging from 3.00 percent to 3.60 percent. The difference in interest rates is the result of day-to-day price fluctuations in the market, maturity differences, and callable v. non-callable securities. Market interest rates continued to slide downward this quarter due to the volatility in the stock market caused by Iow consumer confidence, disclosures of corporate fraud, and the heightened potential for war. For example, 2 year treasuries were yielding 3.21% on the first of the calendar year as opposed to 1.59% at the end of the year. In its ongoing effort to boost a sluggish economy, the Federal Reserve Board lowered its rates from 1.75% to 1.25%, a more than 40-year Iow. During this quarter, several sectors of the economy including the technology and automobile industries suffered financially as their revenues fell short. Among other things, this caused their corporate note ratings to fall below the required single "A" rating set in the city's Investment Policy. The city currently holds five corporate notes from Ford Motor Credit, Daimler-Chrysler, General Motors Acceptance Corporation and Motorola valued at $7,000,000 that have now fallen below the single 'A' rating requirement. These corporate notes represent only 3.45 of the entire portfolio, and only one of the five notes is rated below single "A" by both rating agencies, Standard and Poor's and Moody's. Staff recommends holding these investments for now as market analysts predict the economy stabilizing in 2003, and staff will continue to monitor these companies closely. As of December 31, 2002, the weighted average yield (average interest rate) on the Pooled Investment Portfolio was 4.206 percent, down from the previous quarter's 4.683 percent. This decrease in yield can be attributed to the number of higher yield investments called prior to their maturity date and reinvested at current market yields that are significantly lower. At the end of this quarter, the weighted average maturity decreased from 2.43 years to 2.35 years. This is mainly due to carrying a larger balance in more liquid short term investments (LAIF), and the fact that there is very little benefit to investing beyond three year maturities at this time. This weighted average maturity remains well within the Council Policy of less than 3.0 years. Page 3, Item Meeting Date Considering the projected timing of cash receipts and disbursements and the structure of the Pooled Investment Portfolio, the City should be able to comfortably meet overall cash flow needs over the next six months. Any temporary shortfalls at the individual Fund level will be addressed by recommendations to Council for interfund borrowing. FISCAL IMPACT: There is no direct fiscal impact by this action, but for informational purposes, the par value of the total investment portfolio totaled $355,818,745 as of December 31, 2002, an increase of $44,921,600 over the previous quarter. Investment interest revenue for only the Pooled Investment Portfolio (excluding the cash and investments with fiscal agents) is budgeted at $8.8 million for fiscal year 2002-03. RESOLUTION NO. 2002-039 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE EXISTING CITY INVESTMENT POLICY AND GUIDELINES TO COMPLY WITH NEW STATE LEGISLATION WHEREAS, the City has an existing Investment Policy and Guidelines to insure the prudent management of idle cash; and WHEREAS, state law requires that the Investment Policy and Guidelines be adopted by resolution of the City Council on an annual basis after being reviewed to ensure consistency with the overall objectives of preservation of principal, liquidity, and yield, and its relevance to current law and financial and economic trends; and WHEREAS, several assembly bills were recently passed which changed some of the provisions and reporting requirements currently listed in the City's Investment Policy and Guidelines; and WHEREAS, staff recommends amending the existing Investment Policy and Guidelines to reflect these new requirements. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby amend the existing City Investment Policy and Guidelines, attached hereto and incorporated herein by reference as if set forth in full. Presented by Approved as to form by Robert Powe/ff' Jo~M. Kaheny --' Assistant City Manager City Attorney ~ Resolution 2002-039 Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 12th day of February, 2002, by the following vote: AYES: Councilmembers: Davis, Padilla, Rindone, Salas and Horton NAYS: Councilmembers: None ABSENT: Councilmembers: None Shirley Hor~4/n, Mayor ATTEST: ' Susan Bigelow, City Clerk''3 STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2002-039 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 12th day of February, 2002. Executed this 12th day of February, 2002. Susan Bigelow, City Clerk '7-5 COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01 02/12/02 i OF 5 ADOPTED BY: (Resolution No.) 2002-039 DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) PIIRPl3g~ Effective cash flow management and cash investment practices are recognized as essential to good fiscal management. This Statement is intended to provide guidelines for the prudent investment of the City's temporarily idle cash in all Funds, and outline the policies for maximizing the efficiency of the City's cash management system. C}RI12CTIVF, The objective of the investment policy is to provide guidelines for insuring the safety of funds invested while maximizing investment interest income to the City. INVI~gTMENT PCH .ICY A. The Finance Director is responsible for investing the cash balances in all City Funds in accordance with the California Government Code, Sections 53600 et seq. and 53635 et seq. This policy does not include Long Term Debt Reserve Funds and Deferred Compensation Funds, which are exceptions covered by other more specific Government Code sections and the legal documents unique to each debt transaction. Investment practices shall conform to the prudent man rule (Civil Code Sect. 2261, et seq.) which states, in essence, that "in investing... property for the benefit of another, a trustee shall exercise the judgment and care, under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs..." The Finance Director and other individuals assigned to manage the investment portfolio, acting within the intent and scope of the investment policy and other written procedures, and exercising due diligence, shall be relieved of personal responsibility and liability for an individual investment's credit risk or market price changes, provided material deviations from expectations are reported in a timely manner and appropriate action is taken to control any adverse developments. B. It is the City's full intent, at the time of purchase, to hold all investments until maturity in order to ensure the return of all invested principal. However, it is realistically anticipated that market prices of securities purchased as investments will vary depending on economic conditions, interest rate fluctuations, or individual security credit factors. In a well diversified investment portfolio, such temporary variations in market value will inevitably result in measurable losses at any specific point in time. From time to time, changes in economic or market conditions may dictate that it is in the City's best interest to sell a security prior to maturity. COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01 02/12/02 2 OF 5 ADOPTED BY: (Resolution No.) 2002-039 I DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) C. The three principle factors of Safety, Liquidity and Yield are to be taken into consideration, in the specific order listed, when making investment decisions. 1. Safety of principal is the foremost factor to be considered during each investment transaction. Safety in investing refers to minimizing the potential for loss of principal, interest or a combination of the two due to the two types of risk, Credit Risk and Market Risk. a) Credit Risk, defined as the risk of loss due to failure of the issuer of a security, shall be mitigated by only investing in very safe, or "investment grade" securities and diversifying where feasible. b) Market Risk, defined as market value fluctuations due to overall changes in interest rates shall be mitigated by limiting the average maturity of the investment portfolio to less than 3 years, with a maximum maturity of any one security of 5 years without prior Council approval. Also, the portfolio will be structured based on liquidity needs so as to avoid the need to sell securities prior to maturity. 2. Liquidity refers to the ability to convert an investment to cash promptly with minimum risk of losing some portion of principal or interest. The investment portfolio will be structured based on historic cash flow analysis in order to provide the necessary liquidity as investments routinely mature. A portion of the portfolio will be maintained in liquid short-term securities which can be converted to cash if necessary to meet unforeseen disbursement requirements. 3. Yield is the average annual return on an investment based on the interest rate, price, and length of time to maturity. The City attempts to obtain the highest yield possible, provided that the basic criteria of safety and liquidity have been met. A I ITFIORITED INVESTMENT INSTRI IMENTR The City may invest in the following instruments under the guidelines as provided herein: A. C~ertificate~ of Denc~i/. Time Certificates of Deposit will be made only in FDIC or FSLIC insured accounts. For deposits in excess of the insured maximum of $100,000, approved collateral shall be required in accordance with California Government Code Section 53652 and/or 53651 (m) (1). No more than 25% of the investment portfolio may be invested in this investment type. 7-7 COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01 02/12/02 3 OF 5 ADOPTED BY: (Resolution No.) 2002-039 DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) B. ,qecnritie~ nf tho. II SI Government or it~ Agencies, Includes obligations issued by Federal Home Loan Banks, Government National Mortgage Association, the Farm Credit System, the Federal Home Loan Bank, the Federal Home Loan Mortgage Association, the Federal National Mortgage Association, the Student Loan Marketing Association, or obligations or other instruments of or issued by a federal agency or a United States Government sponsored enterprise. C. Tream~ry I~illg and Noteg U.S. Treasury Bills, Notes, Bonds or Certificates of Indebtedness or those for which the full faith and credit of the United States are pledged for the payment of principal and interest. D. l.ocal Agency Investment Fund (l AIF) Investment of funds in the California LAIF which allows the State Treasurer to invest through the Pooled Money Investment Account. Maximum investment is subject to state regulation. E. Cnnntv of Ran Diego Treamlrv Pool Investment of funds in the County of San Diego Treasury which allows the County Treasurer-Tax Collector to invest local funds through a pooled concept. F. Ranker~ Acceptance, Bills of Exchange or Time Drafts drawn on and accepted by a commercial bank, otherwise known as Bankers Acceptances, both domestic and foreign, which are eligible for purchase by the Federal Reserve System. Purchases of Bankers Acceptances may not exceed 180 days maturity or total more than 40% of the cost value of the City's investment portfolio. G. Commercial Porter. Paper of the highest rating as provided by Moody's Investors Service, Inc. (P1), or Standard and Poor's Corporation (Al +). Eligible paper is further limited to issuing corporations that are organized and operating within the United States and having total assets in excess of five hundred million dollars ($500,000,000). Purchases of eligible commercial paper may not exceed 270 days maturity, represent more than 10% of the outstanding paper of the issuer, or total more than 25% of the cost value of the City's investment portfolio. H. Negotiable Certificate~ of Deposit Issued by a nationally or state-chartered bank or a state or federal savings and loan association or by a state-licensed branch of a foreign bank. Purchases of Negotiable Certificates of Deposit may not total more than 30% of the cost value of the City's investment portfolio. COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01 02/12/02 4 OF 5 (Resolution No.) 2002-039 I DATED: 02/12/2002 ADOPTED BY: AMENDED BY: Resolution No. (date of resolution) I. Rep. reha~e Agreemeqts. A purchase of securities by the City pursuant to a Master Repurchase Agreement by which the seller will repurchase such securities on or before a specified date, or on demand of either party, and for a specified amount. Investments in repurchase agreements will be used solely as short term investments not to exceed 90 days and be collateralized by securities having a market value of at least 102% of the value of the repurchase agreement at all times during the term of the investment. J. Medinm Term ~Nr~ ctrate Nnte~ Corporate obligations shall be rated A or better by Moody's and or Standard and Poor's rating agencies. Purchases of corporate medium term notes shall not total more than 30% of the cost value of the City's investment portfolio, nor for any one corporation, when combined with any Commercial Paper issued by the same corporation, total more than 15 % of the cost value of the City's investment portfolio. K. Various daily cash funds administered for or by Trustees, Paying Agents, or Custodian Banks contracted by the City may be purchased as allowed under California Government Code. Only those funds holding U.S. Treasury or Government Agency obligations shall be purchased. DIVER ~IFIC A TION Investments shall be diversified among institutions, types of securities and maturities to maximize safety and yield with changing market conditions. Local financial institutions will be given preferential consideration for investment of City funds consistent with the City's objective of attaining market rates of return, and consistent with constraints imposed by its safety objectives, cash flow considerations and State laws. ~q A ~l~ I~F. PTNIG All investments of the City shall have the City of Chula Vista as registered owner and shall be held in safekeeping by a third party bank trust department, acting as agent for the City under the terms of a custody agreement. A. The Director of Finance shall submit a quarterly investment report to the City Manager and City Council in accordance with Government Code Section 16481.2 containing the following information for each individual investment: Financial institution Type of investment COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01 02/12/02 5 OF 5 ADOPTED BY: (Resolution No.) 2002-039 DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) Purchase Price of investment Rate of interest Purchase date Maturity date Current market value for securities Other data as required by the City In addition, the report shall include a statement of compliance of the portfolio with the Council approved Investment Policy and a statement indicating the ability of the City to meet its expenditure requirements for the next six months. B. The Director of Finance shall submit copies of the second and fourth quarter calendar year investment reports to the California Debt and Advisory Commission (CDAIC) in accordance with AB 943. Also a copy of the City's Investment Policy shall be sent to CDAIC annually. P~I .ICY R F. VI15W This investment policy and guidelines shall be adopted by resolution of the City Council on an annual basis after being reviewed to ensure its consistency with the overall objectives of preservation of principal, liquidity, and yield, and its relevance to current law and financial and economic trends. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA MAINTAINING THE EXISTING CITY INVESTMENT POLICY AND GUIDELINES WHEREAS, the City has an existing Investment Policy and Guidelines to insure the prudent management of idle cash; and WHEREAS, state law requires that the Investment Policy and Guidelines be adopted by resolution of the City Council on an annual basis after being reviewed to ensure consistency with the overall objectives of preserv'ation of principal, liquidity, and yield, and its relevance to current law and financial and economic trends; and WHEREAS, staff recommends maintaining the existing investment Policy and Guidelines. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby maintain the existing City Investment Policy and Guidelines, attached hereto and incorporated herein by reference as if set forth in full. Presented by Approved as to form by Robert Powell /J~.wla~M' Kaheny Assistant City Manager c"City Attorney J:\Attorney\reso\m vestment policy COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01 02/12/02 1 OF 5 ADOPTED BY: (Resolution No.) 2002-039 DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) PIIRPO~I~ Effective cash flow management and cash investment practices are recognized as essential to good fiscal management. This Statement is intencted to provide guidelines for the prudent investment of the City's temporarily idle cash in all Funds, and outline the policies for maximizing the efficiency of the City's cash management system. ORItqCTIVE The objective of the investment policy is to provide guidelines for insuring the safety of funds' invested while maximizing investment interest income to the City. IN/'VF.~iTMF. NT POI ICY A. The Finance Director is responsible for investing the cash balances in all City Funds in accordance with the California Government Code, Sections 53600 et seq. and 53635 et seq. This policy does not include' Long Term Debt Reserve Funds and Deferred Compensation Funds, which are exceptions covered by other more specific Government Code sections and the legal documents unique to each debt transaction. Investment practices shall conform to the prudent man rule (Civil Code Sect. 2261, et seq.) which states, in essence, that "in investing... property for the benefit of another, a trustee shall exercise the judgment and care, under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs..." The Finance Director and other individuals assigned.to manage the investment portfolio, acting within the intent and scope of the investment policy and other written procedures, and exercising due diligence, shall be relieved of personal responsibility and liability for an individual investment's credit risk or market price changes, provided material deviations from expectations are reported in a timely manner and appropriate action is taken to control any adverse developments. B. It is the City's full intent, at the time of purchase, to hold all investments until maturity in order to ensure the return of all invested principal. However, it is realistically anticipated that market prices of securities purchased as investments will vary depending on economic conditions, interest rate fluctuations, or individual security credit factors. In a well diversified investment portfolio, such temporary variations in market value will inevitably result in measurable losses at any specific point in time. From time to time, changes in economic or market conditions may dictate that it is in the City's best interest to sell a security prior to.. maturity. COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-0t 02/12/02 2 OF 5 ADOPTED BY: (Resolution No.) 2002-039 DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) C. The three principle factors of Safety, Liquidity and Yield are to be taken into consideration, in the specific order listed, when making investment decisions. 1. Safety of principal is the foremost factor to be considered during each investment transaction. Safety in investing refers to minimizing the potential for loss of principal, interest or a combination of the two due to the two types of risk, Credit Risk and Market Risk. a) Credit Risk, defined as the risk of loss due to failure of the issuer of a security, shall be mitigated by only investing in very safe, or "investment grade" securities and diversifying where feasible. b) Market Risk, defined as market value fluctuations due to overall changes in interest rates shall be mitigated by limiting the average maturity of the investment portfolio to less than 3 years, with a maximum maturity of any one security of 5 years without prior Council approval. Also, the portfglio will be structured based on liquidity needs so as to avoid the need to sell securities prior to maturity. 2. Liquidity refers to the ability to convert an investment to cash promptly with minimum risk of losing some portion of principal or interest. The investment portfolio will be structured based on historic cash flow analysis in order to provide the necessary liquidity as investments routinely mature. A portion of the portfolio will be maintained in liquid short-term securities "~ which can be converted to cash if necessary to meet unforeseen disbursement requirements. 3. Yield is the average annual return on an investment based on the interest rate, price, and length of time to maturity. The City attempts to obtain the highest yield possible, provided that the basic criteria of safety and liquidity have been met. ATITFI(/I~TT~I) INVI~SiTMI~NTT TN~qTRIIMI:;NT,q The City may invest in the following instruments under the guidelines as provided herein: A. Certiflcnte~ of D?o~it. Time Certificates of Deposit will be made only in FDIC or FSLIC insured accounts. For deposits in excess of the insured maximum of $100,000, approved collateral shall be required in accordance with California Government Code Section 53652 and/or 53651 (m) (1). No more than 25% of the investment portfolio may be invested in this investment type. COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01. 02/12/02 3 OF 5 ADOPTED BY: (Resolution No.) 2002-039 I DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) B. ~qecnritie~ of the IT .q Government nr itq Agencie~ Includes obligations issued by Federal Home Loan Banks, Government National Mortgage Association, the Farm Credit System, the Federal Home Loan Bank, the Federal Home Loan Mortgage Association, the Federal National Mortgage Association, the Student Loan Marketing Association, or obligations or other instruments of or issued by a federal agency or a United States Government sponsored enterprise. C. Trea~nrv ~ill~ and lX!ote~. U.S. Treasury Bills, Notes, Bonds or Certificates of Indebtedness, or those for which the full faith and credit of the United States are pledged for the payment of principal and interest. D. l.ocal Agency Investment Fund (I.AIF) Investment of funds in the California LAIF which allows the State Treasurer to invest through the Pooled Money Investment Account. Maximum investment is subject to state regulation. E. Cmmtv of 5~an Diego Tre~nry Pool. Investment of funds in the County of San Diego Treasury which allows the County Treasurer-Tax Collector to invest local funds through a pooled concept. F. l:lankere Acceptatlne. Bills of Exchange or Time Drafts drawn on and accepted by a commercial bank, otherwise known as Bankers Acceptances, both domestic and foreign, which are eligible for purchase by the Federal Reserve System. Purchases of Bankers Acceptances may not exceed 180 days maturity or total more than 40% of the cost value of the City's investment portfolio. G. Commercial Paper, Paper of the highest rating as' provided by Moody's Investors Service Inc. (P1), or Standard and Poor's Corporation (Al+). Eligible paper is further limited to issuing corporations that are organized and operating within the United States and having total assets in excess of five hundred million dollars ($500,000,000). Purchases of eligible commercial paper may not exceed 270 days maturity, represent more than 10% of the outstanding paper of the issuer, or total more than 25% of the cost value of the City's investment portfolio. H. Negotiable Certificate~ of Deposit. Issued by a nationally or state-chartered bank or a state or federal savings and loan association or by a state-licensed branch of a foreign bank. Purchases of Negotiable Certificates of Deposit may not total more than 30% of the cost value of the City's investment portfolio. -7 -lC/ COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01 02/12/02 4 OF 5 ADOPTED BY: (Resolution No.) 2002-039 DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) I. l~e?urah~e A~reement~ A purchase of securities by the City pursuant to a Master Repurchase Agreement by which the seller will repurchase such securities on or before a specified date, or on demand of either party, and for a specified amount. Investments in repurchase agreements will be used solely as short term investments not to exceed 90 days and be collateralized by securities having a market value of at least 102% of the value of the repurchase agreement at all times during the term of the investment. J. Medi,m Term Cor?c~r~te Notes_ Corporate obligations shall be rated A or better by Moody's and or Standard and Poor's rating agencies. Purchases of corporate medium term notes shall not total more than 30% of the cost value of the City's investment portfolio, nor for any one corporation, when combined with any Commercial Paper issued by the same corporation, total more than 15% of the cost value of the City's investment portfolio. K. Various daily cash funds administered for or by Trustees, Paying Agents, or Custodian Banks contracted by the City may be purchased as allowed under California Government Code. Only those funds holding U.S. Treasury or Government Agency obligations shall be purchased. DIVER ~TVIC A TTON Investments shall be diversified among institutions, types of securities and maturities to maximize safety and yield with changing market conditions. Local financial institutions will be given preferential consideration for investment of City funds consistent with the City's objective of attaining market rates of return, and consistent with constraints imposed by its safety objectives, cash flow considerations and State laws. ~ A FF~I~I~EPIN!~ All investments of the City shall have the City of Chula Vista as registered owner and shall be held in safekeeping by a third party bank trust department, acting as agent for the City under the terms of a custody agreement. [NVE,qTMENT I~EPORTR A. The Director of Finance shall submit a quarterly investment report to the City Manager and City Council in accordance with Government Code Section 16481.2 containing the following information for each individual investment: Financial institution Type of investment · COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: INVESTMENT POLICY AND GUIDELINES POLICY EFFECTIVE NUMBER DATE PAGE 220-01. 02/12/02 5 OF 5 ADOPTED BY: (Resolution No.) 2002-039 DATED: 02/12/2002 AMENDED BY: Resolution No. (date of resolution) Purchase Price of investment Rate of interest Purchase date Maturity date Current market value for securities Other data as required by the City In addition, the report shall include a statement of compliance of the portfolio with the Council approved Investment Policy and a statement indicating the ability of the City to meet its expenditure requirements for the next six months. B. The Director of Finance shall submit copies of the second and fourth quarter calendar year investment reports to the California Debt and Advisory Commission (CDAIC) in accordance with AB 943. Also a copy of the City's Investment Policy shall be sent to CDAIC annually. POI .ICY RFVIEW This investment policy and guidelines shall be adopted by resolution of the City Council on an annual basis after being reviewed to ensure its consistency with the overall objectives of preservation of principal, liquidity, and yield, and its relevance to current law and financial and economic trends. COUNCIL AGENDA STATEMENT Item ~ Meeting Date 2/18/03 ITEM TITLE: Resolution amending the 401(a) Deferred Compensation Plan and authorizing the Director of Finance to execute the Amended Plan Adoption Agreement with the Plan Administrator SUBMITTED BY: Assistant City Mana~ Powell/~ REVIEWED BY: City Manage~~__ (4/5ths Vote: Yes No X ) SUMMARY: The Council approved a deferred compensation plan pursuant to Internal Revenue Code section 401(a) for certain employees effective January, 2002. Staff is recommending that the Plan be amended to implement changes in the compensation package for the City Manager recently approved by the Council. RECOMMENDATION: Approve Resolution amending the 401(a) Deferred Compensation Plan and authorizing the Director of Finance to execute the Amended Plan Adoption Agreement with the Plan Administrator. DISCUSSION: In December 2001, the City Council approved a new Deferred Compensation Plan pursuant to Internal Revenue Code (IRC) section 401{a) to be effective January 2002. The Plan is available to Executive and Senior Management employees. The Council recently approved an enhancement to the Plan provisions as they relate to the City Manager. The enhancement increases the annual City contribution to the Plan on behalf of the City Manager from 100% to 200% of the maximum dollar amount allowed under IRC section 47(b) (2) (A) as adjusted for cost of living adjustments described in IRC section 457(e) (15). This amount is . currently $24,000 for calendar year 2003. FISCAL IMPACT: The City's contributions to the amended Plan will increase by $12,000 in calendar year 2003 and an additional $1,000 per calendar year for years 2004 through 2006. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE 401(a) DEFERRED COMPENSATION PLAN AND AUTHORIZING THE DIRECTOR OF FINANCE TO EXECUTE THE AMENDED PLAN ADOPTION AGREEMENT WITH THE PLAN ADMINISTRATOR WHEREAS, the City .Council approved a deferred compensation plan pursuant to Internal Revenue Code Section 401(a) for Executive and Senior Management employees effective January, 2002; and WHEREAS, the Council recently approved an enhancement to the Plan by increasing the annual City contribution to the Plan on behalf of the City Manager from 100% to 200% of the maximum dollar amount allowed under IRC Section 47(b)(2)(A) as adjusted for cost of living adjustments described in IRC Section 457(e)(15); and WHEREAS, staff is recommending that the Plan be amended to implement changes in the compensation package for the City Manager recently approved by the Council. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby adopt the 401(a) Deferred Compensation Plan and approve the Amended Adoption Agreement for the City of Chula Vista Money Purchase Retirement Plan, a copy of which shall be kept on file on the office of the City Clerk. BE IT FURTHER RESOLVED that Director Finance of the City of Chula Vista is hereby authorized and directed to execute said agreement on behalf of the City. Presented by Approved as to forn~ by Robert Powell ~?fl~n M. Kaheny Assistant City Manager ~" City Attorney J:XAttorney\Rcso\Defe~ red Comp 401(a) plan (CM) Amended Adoption Agreement for The City of Chula Vista Money Purchase Retirement Plan WHEREAS the City of Chula Vista (City) adopted the NRS Governmental Money Purchase Plan and Trust (Plan) effective January 1, 2002; and WHEREAS the City now wishes to amend the Plan to provide additional benefits to its Employees; NOW THEREFORE, the following changes are hereby made: 1. Effective Date of this Amendment: is January 1, 2003. 2. This Amendment shall not apply to any Employee who severed employment before the effective date of this Amendment. The accrued benefit and vesting pementage of each Participant who is an Employee on the effective date of this Amendment shall be no less than before the Amendment. 3. Section E2 of the Adoption Agreement titled "FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION", subsection "FOR A NON-INTEGRATED PLAN is hereby deleted and replaced as follows: "FOR A NON-INTEGRATED PLAN · Class One: The amount equal to 100% of the maximum dollar amotmt under iRC Section 47(b)(2)(A) as adjusted for cost of living adjustments described in IRC Section 457(e)(15). · Class Two: 5% of the Participant's Compensation. · Class Three: 2% of the Participant's Compensation. · Class Four: The amount equal to 200% of the maximum dollar amount under IRC Section 47(b)(2)(A) as adjusted for cost of living adjustments described in IRC Section 457(e)(15)." 4. Section E5 of the Adoption Agreement titled "PARTICIPATING EMPLOYEES' MANDATORY EMPLOYEE CONTRIBUTIONS" is hereby deleted and replaced as follows: "PARTICIPATING EMPLOYEES' MANDATORY EMPLOYEE CONTRIBUTIONS · Class One and Class Four: Subsequent to their Entry Date and on an annual basis, an eligible Employee shall contribute to the Plan the amount of their Compensation equal to 100% of the maximum dollar amount under IRC Section 47(b)(2)(A) as adjusted for cost of living adjustments described in IRC Section 457(e)(15). · Class Two and Class Three: Subsequent to their Entry Date and on an annual basis, an eligible Employee shall contribute 2% of their Compensation to the Plan. Note: The Mandatory Contribution shall be considered "picked up" by the Employer under Section 414(h) of the Code. All Eligible Employees are required to make a Mandatory Contribution as a condition of employment." In Witness Whereof, the Employer and Trustee hereby cause this Amendment to be executed this __ day of ,2003. EMPLOYER By: Title: Robert W. Powell, Assistant City Manager Date: January 29, 2003 TRUSTEE(S) By: Title: Date: CITY COUNCIL AGENDA STATEMENT Item '~ Meeting Date 2/18/2003 ITEM TITLE: Resolution authorizing the Finance Director to determine the feasibility of refunding the 1993 TCll Parking Structure Refunding Certificates of Participation, 1993 Certificate of Participation TC II - Parking Structure Phase II, and the 1998 Capital Lease with CalLease Public Funding Corporation on a negotiated basis; Waiving the consultant selection process and appointing U.S. Bancorp Piper Jaffray Inc. as the Underwriter; And authorizing the Mayor to execute the contract SUBMITTED BY: Assistant City Manager~,?~well(~'~ REVIEWED BY: City Manager (4/5ths Vote- SUMMARY: ~) U.S. Bancorp Piper Jaffray Inc. has proposed a refunding of two outstanding Certificate of Participation issues and a capital lease obligation. Based on preliminary projections, the refunding would provide a savings of $1.4 million, due to the historically Iow interest rates. RECOMMENDATION: That Council adopt the resolution authorizing the Finance Director to determine the feasibility of refunding the 1993 TCll Parking Structure Certificates of Participation, 1993 Certificate of Participation TC II - Parking Structure Phase Il and the 1998 Capital Lease with CalLease Public Funding Corporation, waiving the consultant selection process and appointing U.S. Bancorp Piper Jaffray Inc. as the Underwriter; and authorizing the Mayor to execute the contract BOARDS/COMMISSONS RECOMMENDATION: Not applicable. DISCUSSION: In Mamh 1993, the City and Redevelopment Agency issued the 1993 Refunding Certificates of Participation for $11,285,000 to advance refund the 1987 Series of Certificates of Participation. The original borrowing was to provide funds for the first phase of a new parking structure at the Chula Vista Shopping Center. There is currently $7,215,000 in outstanding bonds with an average interest coupon of 5.2% and a final maturity date of 2012. The debt service on the Certificates is funded by capital lease payments from the City's General Fund to the Agency to be repaid from future Agency revenues. Page 2, Item C[ Meeting Date 2/18/2003 In December 1993, the City and Redevelopment agency issued Certificates of Participation to finance the second phase of the public parking garage in the Chula Vista Shopping Center for $3,115,000. The debt service on the Certificates is funded by capital lease payments from the City's General Fund to the Agency to be repaid from future Agency revenues. There is currently $2,140,000 in outstanding bonds with an average interest coupon of 5.07% and a final maturity date of 2013. In 1998, the City refunded the lease-pumhase financing agreement with CaLease Public Funding Corporation (CaLease) for the funding of a public safety computer aided dispatch (CAD) and mobile data terminal (MDT) system from Unisys Corp., an 800 MHZ communication system from Motorola, Inc., and miscellaneous heating and air conditioning equipment. At the same time, the refunding was combined with a current financing for the Mainframe/Fiscal System. There is currently $2,487,185 outstanding on the lease with an average interest coupon of 5.46% and a final maturity date of 2008. Since the municipal banking firm of U.S. Bancorp Piper Jaffray Inc. unilaterally brought the refunding proposal to the City for consideration, it is proposed that the transaction be marketed on a "negotiated" basis. A negotiated sale includes the pre-selection of an underwriter and a negotiated interest cost, based on market conditions at the time of the sale. U.S. Bancorp Piper Jaffray Inc. has a strong presence in the California market. It's public finance team specializes in city, redevelopment agency and housing financing to name a few. In 2001, U.S. Bancorp Piper Jaffray managed or advised on issues for over 100 cities and counties. U.S. Bancorp Piper Jaffray Inc. has agreed to an underwriting fee of 1% of the par value of the transaction, which is at the Iow end of the range in today's environment. Staff will work with U.S. Bancorp Piper Jaffray, Inc. and Stradling, Yocca, Carlson & Rauth LLP bond counsel, to analyze the feasibility of the refunding, determine the optimum structure and market timing, and return for final Council approval within 90 days. FISCAL IMPACT: All costs of issuance, including the cost of the underwriter, bond council, disclosure documents etc. will be paid from the debt proceeds. Further details of costs and projected savings will be provided to Council when we return for final approval of the refunding proposal. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE FINANCE DIRECTOR TO DETERMINE THE FEASIBILITY OF REFUNDING THE 1993 TCII PARK1NG STRUCTURE REFUNDING CERTIFICATES OF PARTICIPATION, 1993 CERTIFICATE OF PARTICIPATION TCII - PARK1NG STRUCTURE PHASE II, AND THE 1998 CAP1TAL LEASE WITH CALLEASE PUBLIC FUNDING CORPORATION ON A NEGOTIATED BASIS; WAIVING THE CONSULTANT SELECTION PROCESS AND APPOINTING U.S. BANCORP PIPER JAFFRAY 1NC. AS THE UNDERWRITER; AND AUTHORING THE MAYOR TO EXECUTE THE CONTRACT WHEREAS, in March 1993, the City and Redevelopment Agency issued the ! 993 Refunding Certificates of Participation for $11,285,000 to advance refund the 1987 Series of Certificates of Participation to provide funds for the first phase of a new parking structure at the Chula Vista Shopping Center; and there is currently $7,215,000 in outstanding bonds with an average interest coupon of 5.2% and a final maturity date of 2012; and WHEREAS, in December 1993, the City and Redevelopment Agency issued Certificates of Participation to finance the second phase of the public parking garage in the Chula Vista Shopping Center for $3,115,000 which debt service on the Certificates is funded by capital lease payments from the City's General Fund to the Agency to be repaid from future Agency revenues and there is currently $2,140,000 in outstanding bonds with an average interest coupon o f 5.07% and a fioal maturity date o f 2013. WHEREAS, in 1998, the City refunded the lease-purchase financing agreement with CaLease Public Funding Corporation (CaLease) for the funding of a public safety computer aided dispatch (CAD) and mobile data terminal (MDT) system from Unisys Corp., an 800 MHZ communication system from Motorola, Inc., and miscellaneous heating and air conditioning equipment and at the same time, the refunding was combined with a current financing for the Mainframe/Fiscal System and there is currently $2,487,185 outstanding on the lease with an average interest coupon of 5.46% and a final maturity date of 2008. WHEREAS, the municipal banking finn of U.S. Bancorp Piper Jaffray Inc. unilaterally brought the refunding proposal to the City for consideration, and it is proposed that the transaction be marketed on a "negotiated" basis which negotiated sale includes the pre- selection of an underwriter and a negotiated interest cost, based on market conditions at the time of the sale. WHEREAS, it is recommended that the Consultant Selection Process be waived because: (1) U.S. Bancorp Piper Jaffray Inc. has a strong presence in the California market and 1 it's public finance team specializes in city, redevelopment agency and housing financing to name a few (2) in 200l, U.S. Bancorp Piper Jaffray managed or advised on issues for over I00 cities and counties and (3) U.S. Bancorp Piper Jaffray Inc. has agreed to an underwriting fee of 1% of the par value of the transaction, which is at the low end of the range in today's environment.. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby authorize the Finance Director to determine the feasibility of refunding the 1993 TCII Parking Structure Refunding Certificates of Participation, 1993 Certificate of Participation TC li - Parking Structure Phase II, and the 1998 Capital Lease with CalLease Public Funding Corporation on a negotiated basis. BE IT FURTHER RESOLVED that the City does hereby waive the consultant selection process for the reasons set forth hereinabove and appoint U. S. Bancorp Piper Jaffray Inc., as the Underwriter and authorizing the Mayor to execute the contract. Presented by Approved as to form by ~i;~tanPt°~'i~ lyl M an ag e r ~a~e;nY~ ~ ' ~..~- J:\Attorney\reso\US Bancorp 2 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 ~ Att oPs~y~ Dated: ACREEMENT BETWEEN CITY OF CHULA VISTA AND U.S. BANCORP PIPER JAFFRA¥ 1NC. Agreement between City of Chula Vista and U.S. Bancorp Piper Jaffray Inc. for underwriting services related to refunding the 1993 TCII Parking Structure Refunding Certificates of Participation, 1993 Certificate of Participation TC II Parking Structure Phase II, and the 1998 Capital Lease with CalLease Public Funding Corporation. This agreement ("Agreement"), dated February 18, 2003 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, U.S. Bancorp Piper Jaffray Inc., hereafter referred to as ~Consultant,"possesses the requisite expertise and knowledge to assist the City/Agency in providing requisite underwriting services; and, Whereas, City of Chula Vista, hereafter referred to as "City" is desirous of taking advantage of said knowledge and expertise; 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 C~ty/Agency within the time frames herein provided all in accordance with the terms and conditions of this Agreement; 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" The General Duties shall be herein referred to as the "Defined Services". Failure to complete the Defined Services does not, except at the option of the City, operate to terminate this Agreement. B. 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. C. 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, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding increase in the compensation associated with said additional services. D. 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. E. 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 categor- ies, 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 8. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 8, 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 8, unless Errors and Omissions coverage is included in the General Liability policy. F. 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. 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. 3 G. 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. B. Compensation Consultant shall be compensated in accordance with Exhibit A,Paragraph 9. 3. Administration of Contract Each party designates the individuals ("Contract Administrators,,) indicated on Exhibit A, Paragraph 10, 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 upon 30 days written notice by either party. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 11. 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 per- formance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. 4 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 11 ("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 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 Interestsl 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 ~ay 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 12. 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 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, subcontractors, 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 liabil%~y~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 th~s 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 o~ ~uch 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 ~otice 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". 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 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 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. 157. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consult- ant 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 13 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. Ail 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 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. 11 Signature Page to Agreement between City of Chula Vista, and U.S. Bancorp Piper Jaffray Inc. for underwriting Services; 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 City of Chula Vista, et. al. by: Steve Padilla, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: John Kaheny, City Attorney Dated: U.S. manc,~per ~f~/~ay inc. Exhibit List to Agreement (X) Exhibit A. ( ) Exhibit B: 12 9-17 Exhibit A to Agreement between City of Chula Vista and U.S. Bancorp Piper Jaffray Inc. 1. Effective Date of Agreement: February 18, 2003 2. City-Related Entity: City of Chula Vista, a political subdivision of the State of California 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: U.S. Bancorp Piper Jaffray Inc. 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership ( X ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: U.S. Bancorp Piper Jaffray Inc. 345 California Street, Suite 2200 San Francisco, CA 94104-2606 (415) 984-3612 Fax (415) 984-5159 7. General Duties: "Consultant" shall provide investmen.t banking services to assist in the refunding of the 1993 TCII Parking Structure Refunding Certificates of Participation, 1993 Certificate of Participation TC II - Parking Structure Phase II, and the 1998 capital Lease with CalLease Public Funding Corporation, evaluate financial alternatives, conduct due diligence and to underwrite bonds to be issued by the City. In its capacity as the City's investment banker, Consultant will be acting as a principal in the anticipated purchase of municipal bonds from the City and not as an advisor or other fiduciary of the City. As investment banker to the City, Consultant will commit its full resources and energies to assist the City in developing, evaluating and implementing a refinancing plan. Consultant will use its best professional efforts to accomplish the formal marketing of any securities sold to the public, which will be accomplished in a manner and on a schedule consistent with sound investment banking and underwriting principles. 8. Scope of Work and Schedule: A. The following is a list of investment banking services to be provided by Consultant. This list is not meant to be all-inclusive, but does represent typical services required for the refinancing of debt. 1) Consultant will work with City staff and outside professionals to develop a refinancing plan for the 1993 TCII Parking Structure Refunding Certificates of Participation, 1993 Certificate of Participation TC II Parking Structure Phase II, and the 1998 Capital Lease with CalLease Public Funding Corporation. 2) Completeness or accuracy of documents prepared by the City or other professionals, consultant will review and comment on such documents which are'delivered to Consultant and are necessary for the proper execution of Consultant's responsibilities as the City's investment banker. Consultant, in conjunction with its counsel, will assist the City, its counsel and advisors in preparing the Official Statement(s) (preliminary and final versions, respectively) for sale of the securities in accordance with the standards of Rule 15c2-12 of the Securities Exchange Commission and other applicable securities laws. The City agrees to participate in the preparation of the Official Statement by providing pertinent information to be included therein and agrees to review the Official Statement(s) for accuracy and completeness. The Official Statement(s) will include a description of the securities, the issuer and pertinent financial and economic data relating to the City and the surrounding area. The approval, execution and delivery of the Official Statement(s) will be duly authorized by the City for use by Consultant in marketing the securities. 3) Consultant will assist the City in preparing material for review by credit rating agencies, bond insurance companies and investors as appropriate. 4) Consultant will conduct such bond marketing activities as the City Consultant agree are necessary or desirable in marketing the bond issue. The goal will be to distribute securities to suitable investors at the most favorable interest rates practicable under the market conditions existing at the time of their sale. The City agrees to assist Consultant in making presentations and information available to investors and others as Consultant reasonably requests. 5) Consultant will assist in the preparation and documentation necessary to timely close each bond issue and shall timely deliver the necessary funds to purchase each bond issue in accordance with the terms of the respective Bond Purchase Agreements. 6) The City and Consultant will meet as required to inform each other on economic, environmental, financial or other conditions affecting the successful completion of the refinancing. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Date for completion of all Consultant services: Termination of Agreement by written notice from either party. 9. Insurance Requirements: (X) Statutory Worker's Compensation Insurance ( ) 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: $10,000,000 (not included in Commercial General Liability coverage). 10. Materials Required-from Cfty: The City agrees to make available to Consultant without cost sufficient copies of ahy applicable reports, agreements, contracts, resolutions_and other relevant documents regarding the issuer of the securities as reasonably may be required from time to time for the prompt and efficient performance by Consultant of its obligations hereunder. 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: Fixed Fee Amount Payable only at closing of bond sale from bond proceeds: 1) The City and Consultant expect to enter into a Bond Purchase Agreement relating to the bonds to be sold from the City to Consultant. 2) It is expected that Consultant's underwriting fees will be 1.00% of the par amount of the bond issue. The City an~'Consultant agree to negotiate in good faith regarding the bond interest rates and purchase price based on the size of bond issue, credit quality, market conditions and other factors determined to be relevant by the City and Consultant at the time of the bond sale. It is intended that once purchased, the securities will be re-offered to the public on the basis of an immediate bona fide public offering. 12. Materials Reimbursement Arrangement: The City will pay from the proceeds of the securities, or otherwise, all costs and expenses customarily paid therefrom including the cost of printing the securities and the official Statement(s), and any other documents, the fees and expenses of its legal counsel, bond counsel, fees to rating agencies, bond insurance companies, accountants, and costs of any other experts or consultants retained by the City in connection with the financing. 13. Contract Administrators: City: Maria V. Kachadoorian, Assistant Director of Finance Consultant: Ralph Jason Holmes, Vice President, U.S. Bancorp Piper Jarray 14. Liquidated Damages Rate: ( ) Other: None 15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. 16. ( ) Consultant is Real Estate Broker and/or Salesman 17. Permitted Subconsultants: After consultation with City, Consultant may select and retain legal counsel to provide legal advice related to structuring and marketing of securities and , with approval of the City, to draft the preliminary and final Official Statements. 18. Bill Processing: A. Compensation is payable at bond closing out of bond proceeds. B. City's Account Number: Bond Proceeds. 19. Security for Performance: N/A 5 COUNCIL AGENDA STATEMENT ITEM /~ MEETING DATE 2/18/03 ITEM TITLE: Ordinance amending Chapter 2.56 of the Chula Vista Municipal Code to modify purchasing procedures (first reading). Resolution approving revised consultant selection procedures contained in Council Policy 102-5. SUBMITTED BY: AssistantCityMan~gerP~~ ~ REVIEWED BY: City Managerl.~ ~ (4/5ths vote: Yes NoX) Council approved significant changes to th~?.~y's purchasing ordinance in November 1998. At that time, buying limits were increased, the consultant selection process was streamlined, surplus property disposal procedures were simplified, and language was made gender-neutral. The City's Purchasing Agent had recommended even higher buying limits and increased purchasing authority based on current trends in the public sector; however, Council ,,vas reluctant to approve all of the proposed increases at one time. Staff.would like to now move forward with increased buying limits and authority to further facilitate the purchasing process, as well as enable the City to become more business friendly. Additional changes would allow for Intemet-based advertising and receipt of bids, and cooperative purchasing with other public agencies within the United States. In accordance with these modifications and previously authorized changes, approval ofrevised Council Policy 102-5 related to Consultant Services is also requested. Public works projects, as covered in the City Charter, are not addressed in this proposal. However, in order to modernize out-of-date purchase limits and procedures, it is recommended that the Department o f Engineering initiate an analysis of whether or not a Charter change should be made to bring their limits in line with contemporary project costs and purchasing guidelines. RECOMMENDATION: That Council place the Ordinance on first reading amending Chapter 2.56 of the Municipal Code to modify purchasing procedures, and adopt a resolution approving revised consultant selection procedures contained in Council Policy 102-5. It is further recommended that Council direct Engineering staff.to initiate an analysis of whether or not a Charter change should be made to bring public works limits in line with contemporary project costs and purchasing guidelines. BOARDS/COMMISSION RECOMMENDATION: Not applicable. Page 2, Item/0 Meeting Date 2/18/03 DISCUSSION: Since changes were made to the purchasing ordinance over four years ago, buying practices have improved citywide. Staff is able to conduct business quickly with appropriate controls in place to protect the integrity of the purchasing process. In order to improve the process further, staff recommends increasing the Purchasing Agent's authority to $100,000 for all equipment, materials, and services (including professional services). Several modifications to the existing ordinance are also recommended in order to take advantage of electronic commerce (e-commeme) and Web-based purchasing. These changes include Intemet- based advertising and receipt of bids, and on-line vendor registration. Currently, the Purchasing Agent has the authority to approve orders for equipment, materials, and services up to $50,000. The City Manager approves purchases of equipment, materials, and services between $50,000 and $100,000. Council approves equipment, materials and services exceeding $100,000, and all professional service contracts greater than $50,000. Approximately forty (40) orders are issued annually that fall between $50,000 and $100,000. About twenty (20) of these orders are for public works projects, which are covered under Charter guidelines and would still require Council approval. Another ten (10) are for miscellaneous budgeted equipment, mostly vehicles. The remaining ten (10) are for professional services. Raising the Purchasing Agent's approval authority to $100,000 would free-up staff time to concentrate on other high priority projects. The City Manager would be relieved from reviewing and approving approximately twenty (20) routine orders annually, as the Pumhasing Agent would instead assume this responsibility. Overall, Council would still review and approve high dollar, high impact agreements accounting for almost 63% of the total value of all purchases made. The changes in approval authority necessitate revisions to Council Policy 102-5 relating to Consultant Services. With the advent of the Internet, additional changes are being requested to facilitate Web-based purchasing. These changes include the ability to advertise and receive bids through the City's Web site. It is anticipated that potential bidders will soon be able to access the City's Web site, and be automatically notified of posted bids through a self-registration process. Therefore, a structured bidder's list would no longer be necessary. However, nothing would preclude purchasing staff from maintaining informal vendor files. A change in the method for acquiring legal services and related professional services has also been proposed. Due to the specialization, sensitivity, and frequently confidential nature of legal requirements, a modification in the selection process is recommended. Regardless, either competitive solicitations or justification for acquiring legal and related professional services would be mandatory. Page 3, Item IL/ Meeting Date 2/18/03 Finally, the last requested change expands the City's ability to enter into cooperative purchase agreements with other public agencies in the United States. The current ordinance allows for cooperative ventures with other public agencies within California. Opportunities are increasingly becoming available outside of California that are to Chula Vista's advantage. In stun, increasing the buying limits would reduce paperwork, improve delivery times, and enhance operational efficiencies. Approximately twenty (20) orders annually requiring Council agenda statements would be eliminated. Checks and balances between the requesting departments, purchasing, receiving, and accounts payable staff would remain in place to counter any fraud or misuse. In fact, the audit capability of the revised purchasing procedures would remain consistent with present practices. With the ability to conduct Web-based purchasing, the City would be positioned to conduct business on a competitive level for many years to come. FISCAL IMPACT: There is no direct fiscal impact on the City as a result of this proposed ordinance change. However, savings in stafftime would be achieved from writing and processing approximately twenty (20) fewer Council agenda items annually. Additional savings would be realized from reduced advertising and mailing fees associated with Web-based procurement. ATTACHMENTS: Proposed Municipal Code Chapter 2.56 change with revisions highlighted. Proposed Council Policy 102-5 change with revisions highlighted. ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 2.56 OF THE CHULA VISTA MUNICIPAL CODE TO MODIFY PURCHASING PROCEDURES. The City Council of the City of Chula Vista does hereby ordain as follows: SECTION h That Chapter 2.56 of the Chula Vista Municipal code is hereby amended to read as follows: Chapter 2.56 PURCHASING SYSTEM Sections: 2.56.010 Centralized Purchasing System Established. 2.56.020 Purchasing Agent - Appointment - Powers, Duties, and Authority. 2.56.030 Option to Delegate Authority for Purchases of Supplies and Equipment. 2.56.040 Requisitions or Estimates; Required Revisory Changes Permitted. 2.56.050 Required Contract Forms; City Attorney. 2.56.060 Budget, Availability of Funds Required. 2.56.070 = .... ~ """*'~+ ~"'~ ~'='~ ..... '* .... Contracts Exceeding $100,000: Formal Competitive Bid Procedure and City Council Approval Required. 2.56.080 Contracts Exceeding $100,000 - Competitive Bidding ProcessNotic, e 2.56.090 n_~_ ...... ..... -..,v,~* ~?-c".d-'ro ., Contracts of $100,000 or less Less - Open Market Procedure and Purchasing Agent Approval Required. 2.56.100 Emergency Purchases. 2.56.110 Exception Selection Process for Architectural, Engineering, Environmental, Land Surveying, Legal, Construction Project Management, and Other Professional Services. 2.56.120 Supplies, Materials, and Equipment No Longer Used - Disposition Procedure. 2.56.130 Sale of Real Property - Procedure. 2.56.140 Cooperative Purchasing Agreements. permitted-wher~ 2.56.150 Reports to City Council. 2.56.010 Centralized Purchasing System Established. Pursuant to Section 1010 of the City Charter, there is established a centralized purchasing system for City departments, offices, and agencies, in order to (1) establish procedures for the purchase of services, supplies and equipment, at the lowest possible cost commensurate with quality needed, (2) exercise positive financial control over purchases, (3) clearly define authority for the purchasing function, and (4) to assure the quality of purchases. 2.56.020 Purchasing Agent - Appointment - Powers, Duties, and Authority. The Director of Finance shall appoint, in accordance with Section 507 of the Charter, a Purchasing Agent, who shall be in the unclassified service as provided in Section 500 of the City Charter, and such deputies as may be necessary. The Purchasing Agent shall be the head of the Purchasing Division of the Finance Department and shall conduct a centralized purchasing system. The Purchasing Agent shall have the power, and it shall be his or her duty, to purchase or contract for all supplies, equipment, and services needed by any and all departments, offices, and agencies of the City subject to the terms and conditions provided for in this chapter. The Purchasing Agent shall have the authority to: Ordinance Page 2 A. Negotiate, purchase, and obtain supplies, equipment, and contractual services used by the City in accordance with City and state law, and such rules and regulations as are prescribed by the Director of Finance subject to the review of the City Manager or by the City Council; 13. Act to procure for the City the needed quality in supplies, equipment, and contractual services, at least expense to the City; C. Endeavor to obtain as full and open competition as possible on all purchases and sales; D. Prepare and recommend to the Director of Finance rules, regulations and procedures governing the purchase of supplies, equipment, and services for the City and amendments thereto as necessary; E. Keep informed of current developments in the field of purchasing, prices, market conditions, and new products, and secure for the City the benefits of research done in the field of purchasing by other governmental jurisdictions, national technical societies, trade associations having national recognition, and by private businesses and organizations; F. Prescribe and maintain such standardized contracts, subject to the approval of the City Attorney, and other rules and regulations as are reasonably necessary for the operation of the purchasing system; G. Prepare and adopt a standard purchasing nomenclature for City departments and suppliers; ~H. Exploit the possibilities of various cost-effective purchasinq strategies, such as buying "in bulk" and cooperative purchasinq, so 3s to take full advantage of '~; ...... ~ favorable pricinq;, o'-'~ -~*~-~;~ .... ;**,,,, ,-,-~;~;~ ~"- !~ve~tery JI. Recommend the transfer of surplus or unused supplies and equipment between departments as needed and the sale of all supplies and equipment which cannot be used by any department or which have become unsuitable for City use and the scrapping or surveying of unsalable surplus items. KJ. Take such other actions, consistent with the provisions of this chapter, all other applicable laws, and current good purchasing practices, that are reasonable and appropriate to effectively operate the City's centralized purchasing system. Control and supervise all existing and future storerooms and warehouses of regularly purchased City supplies and equipment. Ordinance Page 3 2.56.030 Option to Delegate Authority for Purchases of Supplies and Equipment. The Purchasing Agent may authorize a department, office, or City agency to purchase supplies, services and equipment directly when he or she determines that direct purchasing can improve efficiency and/or reduce costs and is in the best overall interests of the City. All direct purchasing authorized by the Purchasing Agent under this Section shall be carried out in compliance with the procedures established by this chapter and on such forms or through such purchasing mechanisms as shall be determined by the Purchasing Agent. Direct purchases may be effected through the use of procurement cards or other similar mechanisms. 2.56.040 Requisitions or Estimates; Required Revisory Changes Permitted. All City departments and offices shall file with the Purchasing Agent detailed requisitions or written estimates of their requirements for supplies, equipment, and services, in such manner, and at such times, as the Purchasing Agent shall prescribe. The Purchasing Agent shall examine each requisition or estimate and shall have the authority to revise it as to quantity, quality, or estimated cost; provided, however, that a change in quality will not vary substantially from the standards of the using department or office; and provided further, that the using department head, or designee, is first consulted. 2.56.050 Required Contract Forms; City Attorney. All purchase orders and contracts for purchase of supplies, equipment or services shall be on forms prescribed or approved by the Purchasing Agent and City Attorney. 2.56.060 Budget, Availability of Funds Required. For all purchases or contracts for services, the Purchasing Agent shall certify that (a) the required purchase price or compensation is provided for in the budget of the using department or has been approved by the City Council by resolution; and (b) there is to the credit of each using department concerned a sufficient and appropriate unencumbered balance in excess of all unpaid obligations to defray the cost of such purchase or contract. 2.56.070 Contracts Exceeding $100,000 - Formal Competitive bBid pProcedure and City Council aApproval rRequired. A. In General.~,,vv~, ~ .... * ~ ....... ~.v..~w;'~ w.v..,~ .... :All supplies, equipment, and services, when the estimated cost thereof shall exceed one hundred thousand dollars ($100,000), shall be awarded by the City Council to the lowest responsive and responsible bidder submitting the best bid in accordance with the competitive bidding process set forth in Section 2.56.080 of this Chapter, below. Ordinance Page 4 B. Exceptions. The following purchases contain exceptions to the standard competitive biddin,q .~u ~ ...... * f'~"' *~o~ requirements: 1. Public Works Contracts for those public works, materials and services that are governed by the purchasing requirements of Section 1009 of the Charter. 2. Professional Services Contracts for certain professional services that are governed by Section 2.56.110 of this chapter. 3. City Council Waiver Contracts for which it is determined by resolution of the City Council, that the competitive bidding requirements as applied to that contract are impractical, impossible, or that City interests would be materially better served by applying a different purchasing procedure approved by the Purchasing Agent as being consistent with good purchasing practices. 4. Single/Sole Source A commodity or service available from only one known source as the result of unique performance capabilities, manufacturing processes, compatibility requirements or market conditions. 5. Emergency Emergency purchases which shall be governed by Section 2.56.100 of this chapter. 2.56.080 Contracts Exceeding $100,000 - Competitive Bidding Process. ~ The followinq competitive biddinq and award process shall apply to contracts for supplies, equipment and services valued in excess of $100,000:T the A. Notice Inviting Bids. When required, notices inviting bids shall include a general description of the article or service, and shall be published by the Purchasing Agent at least once on the City's Internet Web site, or in a newspaper of general circulation in the City, and any other method of advertising that is determined by the Purchasing Agent to be in the City's best interest, at least ten days prior to the bid opening date. ~n .~, .... ~t ~ ............ f Ordinance Page 5 Bidder's security. The Purchasing Agent may require a bidders' security in an amount equal to ten percent of the bid either in cash, ce~ified or cashier's check, or surety bond approved by the City A~orney and the Risk Manager. In the event a bidder's security is required, no bid shall be considered unless the required security is submi~ed therewith. All bidder's security is refundable, except in the case of a successful bidder who shall fo~eit this security if the bidder fails to execute a contract within ten days a~er the notice of award has been mailed or personally delivered, or otherwise fails to comply with the requirements to complete the transaction. ~C. Bid opening. Sealed bids shall be submitted to the Purchasing Agent, who shall open them in public at the time and place stated in the public notices. ~ secure, Internet-based system or other appropriate media may be used in lieu of sealed bids opened in public, provided that the Purchasing Agent has approved the system for accuracy, confidentiality, and reliability. A tabulation of all bids received shall be available for public inspection in the office of the Purchasing Agent, or on the City's Internet Web site, for a period of not less than thi~y (30) calendar days after the bid opening. The Purchasing Agent may delegate this responsibility hereunder to responsible assistants and deputies. Compilation of bids and recommendations. Following the opening of formal bids, the Purchasing Agent shall compile all of the bids and submit them to the requesting depa~ment head, together with a recommendation as to which bid he or she considers best, taking into consideration, the amount of money bid, compliance Ordinance Page 6 with specifications, and. responsiveness and responsibility of the bidder. The responsiveness of the bidder shall be determined by comparing the bid to the bid specifications. In determining the responsibility of the bidder, the Purchasing Agent will be guided by, but not limited to, a consideration of the following factors: 1. The experience of the City in dealing with the Iow bidder; 2. The experience of other governmental agencies known to the Purchasing Agent in their previous transactions with the Iow bidder; 3. Knowledge of the quality and fitness of the product offered by the Iow bidder, substantiated by reports of using departments within the City or other governmental agencies; 4. Options to renew contracts for continuing purchases at the same bid price or with reasonable fixed or capped increases, in those circumstances where price increases are expected or have been experienced in the past; 5. Financial stability and business standing of the Iow bidder. The requesting department head shall forward the compilation of bids and his or her recommendation with respect to an award to the City Manager, who in turn, will forward a recommendation for award to the City Council. The Purchasing Agent may reject any or all bids, or any one or more commodities or contractual services included in the proposed contract if it is determined that the public interest will be served thereby. F~E. Contract awarding authority. The City Council may make an award of contract to the lowest responsive and -responsible bidder submitting the best bid in all respects. G~.F. Rejection of bids; Alternative Procedures. The City Council may reject any or all bids, direct City forces to provide the required commodity or service, authorize the readvertising of bids, or authorize the purchase of supplies or services pursuant to the open market procedure set forth in Code Section 2.56.090. I~.G. Tie bids. In accordance with Section 1011 of the Charter, in the event two or more bids are received which are for the same total amount or unit price Ordinance Page 7 and in all other respects are equal, the contract shall be awarded to a local bidder. In the event, however, that such tie bids are all from vendors either wholly inside or all outside of the City, then the contract shall be awarded by drawing lots in public. ~.H. Performance bond. The Purchasing Agent shall have authority to require a performance bond in such amount as he or she shall find reasonably necessary to protect the best interests of the City. 2.56.090 Contracts of $100,000 or Less - Open Market Procedure and Purchasing Agent/Cit¥-Mar~j~ Approval Required. A. In General. Purchases of supplies, equipment, and services of an estimated value in the amount of one hundred thousand dollars ($100,000) or less may be made by the Purchasing Agent in the open market without observing the formal bidding procedure prescribed in Section 2.56.080; ' , , ........ ~ . Notwithstanding the foregoing, for contracts in excess of $10,000, informal bidding shall be required; and, whenever practical, be based on at least three bids. Contracts shall be awarded to the lowest responsive and responsible bidder submitting the best bid in all respects, except as provided below. Responsiveness and responsibility shall be determined pursuant to the standards set forth in Section 2.56.080.DE-. of this chapter. The Purchasing Agent shall keep a record of all open market orders and the bids submitted in competition thereon, and such records shall also be open to public inspection. B. Exceptions: The following purchases shall be exempt from these requirements: 1. L-ess-T-hamS10,000 or Less Contracts for a commodity or service costing less~tha~--ten thousand dollars (910,000) or less, in which case the contract may be awarded by the Purchasing Agent based upon suitability of the item and market rates in the case of a commodity, and demonstrated competence at reasonable fees in the case of services; Ordinance Page 8 2. Impractical or Impossible When it is determined by the Purchasing Agent that the competitive bidding requirements are impractical~ impossible, or that City interests would be materially better served by applying a different purchasing procedure; · ' impr_oct!c~! er impecc!b!c to obtain temperature 5~dc e~ th~ 3. Ce~ain Section 2.56.070 Exemptions Those purchases exempted under Section 2.56.070.B. 1,2, 4and 5 of this chapter. 2.56.100 Emergency Purchases. A. By Purchasing Agent pertained when. In case of an emergency which poses an immediate threat to public health, safety or welfare and which requires immediate purchase of supplies, equipment, or contractual services, the City Manager or Purchasing Agent are authorized to secure in the open market at the lowest obtainable price any supplies, equipment, or contractual services, regardless of the amount of the expenditure; provided however, that a full explanation of the circumstances of such emergency shall be entered in the minutes of the Council at the first available meeting following the commitment to the expenditure and shall be open to public inspection. B. By Using Depa~ment - Procedure. In case of an emergency, and with the prior consent of the City Manager or Purchasing Agent, any using depa~ment may purchase directly any supplies, equipment, or services when the estimated cost thereof shall not exceed one hundred thousand dollars, whose immediate procurement is essential to prevent delays in the work of the using depa~ment which may affect the life, health, or public safety of citizens. The head of such using depa~ment shall send to the Purchasing Agent a copy of the delivery record, together with a full written explanation of the circumstances of the emergency, which shall be filed by the Purchasing Agent as a permanent and public record of the purchase. The Purchasing Agent shall, by rules and regulations, prescribe the procedures under which such emergency purchases may be made. Ordinance Page 9 C. By Director ef CivU Defense and Dis3ster. 2.56.110 Exception Selection Process for Architectural, Engineering, Environmental, Land Su~eying, Legal, Construction Project Management, and Other Professional Services. A. In General. ................. men ..................... s9q. Except as otherwise provided in this section, ~architectural, engineering, environmental, land surveying, legal, construction project managements, and other.professional consultant se~ices (collectively "professional services")+ ~provided to the City by contract shall not be governed by the bidding requirements set fo~h in Sections 2.56.080 or 2.56.090, but shall be negotiated on the basis of demonstrated competence and qualifications for the services required and at fair and reasonable fees in accordance with the procedures set fo~h in this Section. Notwithstanding the foregoing, once demonstrated competence and qualifications have been established, expense may be considered as one factor in the selection of a consultant hereunder. 2. Notwithstanding the above requirement, the Purchasing Agent may require competitive bidding pursuant to the requirements of Sections 2.56.080 or 2.56.090 of this chapter, upon a finding that the professional services required are of more of a technical nature or involve little professional judgment, and requiring bids would be in the public interest. 3. If the estimated cost of professional services exceeds ~;++" .... ~ ORe hundred thousand dollars ($5~00,000), it shall be awarded by the City Council after compliance with the procedures specified in Subsection C., below. Contracts for services for ~;~" one hundred thousand dollars ($100,000) or less may be awarded pursuant to Subsection D., below. B. Definitions. For purposes of this chapter, the following terms have the following meanings: Ordinance Page 1 0 1. "Architectural, engineering, environmental, and land surveying services" includes those professional services of an architectural, engineering, environmental, or land surveying nature as well as incidental services that members of these professions and those in their employ may logically or justifiably perform. 2. "Construction project management" means those services provided by a licensed architect, registered engineer, or licensed general contractor which meet the requirements of government Code Section 4529.5 for management and supervision of work performed on construction projects. 3. "Environmental services" means those services performed in connection with project development and permit processing in order to comply with federal and state environmental impact laws and the analysis of hazardous material. 4. "Legal services" are those of a specialized legal nature as determined by the City Attorney. 5. "Other professional services" include services which provide intellectual products of a specialized nature unique to a given situation or requirement. C. Selection Process for Contracts of Greater than $,~100,000. 1. Any department head desiring to enter into a contract for professional consultant services whose estimated cost exceeds lift;' one hundred thousand dollars ($100,O00) shall first analyze the cost effectiveness of having the proposed service completed. 2. Public announcement of all projects of an estimated cost in excess of f!ft;' one hundred thousand dollars ($51_00,000) requiring architectural, engineering, environmental, land surveying, construction project management, or other professional consultant services shall be made by the City through notice to the respective professional societies, advertisement on the City's Internet Web site, or publication in a newspaper of general circulation, and any other method of advertising that is determined by the Purchasing Agent to be in the City's best interest. The notice shall invite service providers to submit letters of interest for specific projects. 3. The recommendation to City Council for the award of the contract shall be made by a selection committee. The responsible department head, or designee, and two or more staff members shall perform the duties of the selection committee. Ordinance Page 11 4. After reviewing all proposals submitted, the selection committee may choose the most qualified firms for personal interviews to discuss anticipated concepts and the relative utility of alternative methods of approach for furnishing the required services. The selection committee shall evaluate and rank the firms based upon criteria established in advance by the City. Cost comparisons between service providers may also be considered as a factor. A list containing the ranking information will be sent to the responsible department head. 5. The responsible department head shall negotiate a contract with the firm ranked Ne. ! the highest by the selection committee at a price determined to be fair and reasonable to the City. The agreement shall define the conditions of the contract scope, work plan, schedule, costs, method of payment, duration, insurance, indemnification and other appropriate matters. 6. If the department head is unable to negotiate a satisfactory contract with the highest ranked firm, negotiations shall be formally terminated. 7. The department head shall then undertake negotiations with the next highest ranked firm. This process shall continue until a satisfactory contract is negotiated. 8. If the list of qualified firms is exhausted without a contract being negotiated, the selection committee shall choose additional firms, and the process shall continue until a satisfactory contract is negotiated. D. Selection Process for Contracts of $,~100,000 or Less. Purchases of professional services of an estimated value of $5100,000 or less may be made by the Purchasing Agent. Informal solicitation of proposals shall be required in accordance with the same standards and exceptions set forth in Section 2.56.090 of this chapter. E. Pre-Qualification Lists Contracts Solicitations may be made using pre-qualification lists ~approved by the Purchasing Agent. The Purchasing Agent shall review types of services required and determine for which types of services pre-qualification lists would be appropriate. Pre-qualification lists may be used in lieu of open advertisement. h. Legal .~ervlces In accordance with Section 503 of the City Charter, the City Attorney oversees contracts for legal and related professional services. Whenever practical, and in consultation with the Purchasing Agent, requests for outside attorney or professional services shall be based on a competitive, solicitation of proposals. Otherwise, justification shall be provided based on unique qualifications or performance characteristics of the attorney or consultant recommended. Contracts for legal and related professional services in excess of $100,000 shall be approved by the City Council. G. Unlawful Acts and Conflicts of Interest Prohibited. 1. In the selection and award of professional consultant contracts pursuant to this exception, all unlawful activity, including but not limited to, rebates, kickbacks, or other unlawful consideration is prohibited. 2. No City officer or employee shall be a member of a selection committee, or otherwise participate in the selection process, when they have a relationship with a person or business entity seeking a contract which would constitute a conflict of interest under Government Code Section 87100 or under City conflict of interest rules. 2.56.120 Supplies, Materials, and Equipment No Longer Used - Disposition Procedure. A. General Procedures. All using departments shall submit to the Purchasing Agent at such times and in such form as he or she shall prescribe, reports showing stocks of all supplies, materials, and equipment which are no longer used or which have become obsolete, worn out, or scrapped. The Purchasing Agent may transfer such stock to other departments, which have need for and can use it. The Purchasing Agent shall also have the power to sell all supplies, materials, and equipment that have been unsuitable for public use, or to exchange for, or trade-in the same on new supplies, materials, and equipment. B. Approval Required; Competitive Process. Where the value of an item, or a group of items expected to be sold to one bidder, exceeds $100,000, such sale must be approved by resolution of the City Council. Any such Ordinance Page 1 4 If the contract, agreement, or arrangement exceeds one hundred thousand dollars, then City Council approval is required. 2.56.150 Reports to City Council. The Director of Finance shall provide the City Council with reports regarding City purchasing practices in such form and at such intervals as the City Council may direct. Ordinance Page 15 SECTION II: This ordinance shall take effect and be in full force on the thirteenth day from and after its second reading and adoption. Presented by Approved as to form by Robert W. Powell John M. Kaheny Assistant City Manager City Attorney RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING REVISED CONSULTANT SELECTION PROCEDURES CONTAINED IN COUNCIL POLICY 102-5 WHEREAS, Council approved significant changes to the City's purchasing ordinance in November 1998 at which time, buying limits were increased, the consultant selection process was streamlined, surplus property disposal procedures were simplified, and language was made gender-neutral; and WHEREAS, the City's Purchasing Agent had recommended even higher buying limits and increased purchasing authority based on current trends in the public sector; however, Council was reluctant to approve ali of the proposed increases at one time; and WHEREAS, staff would like to now move forward with increased buying limits and authority to further facilitate the purchasing process, as well as enable the City to become more business friendly; and WHEREAS, additional changes would allow for Intemet-based advertising and receipt of bids, and cooperative purchasing with other public agencies within the United States; and WHEREAS, in accordance with these modifications and previously authorized changes, approval of revised Council Policy 102-5 related to Consultant Services is also requested. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the revised consultant selection procedures contained in Council Policy 102-5, as set forth in Exhibit "A', attached hereto and incorporated herein by reference as if set forth in full. Presented by Approved as to form by Robert Powell John M. Kaheny Assistant City Manger City Attorney COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: CONSULTANT OR OTHER SERVICES POLICY EFFECTIVE PAGE NUMBER DATE I of 2 102-5 ~a~ n~9 92 ADOPTED BY: Resolution No. DATED: ~6 .n9 92 BACKGROUND The City may fi.om t/me to time require the sernces of an outside consultant er o'.her ....... ,. ........ o provide a cost-effective supplement to existing City staff and/or obtain expertise not available within oCity staff. The general philosophy is that periodic h/gh citizen demand and heavy workloads do not necessarily justify ~nereasing permanent staff to meet Periodic demand. Council and City Management should use forethought, planning, and good judgment to determine the optimum staffing level with the appropriate, cost-effective complement of outside consultant, ss .... PURPOSE The purpose of this policy is to establish a standard approach to determining the need for consultants z~d :'&er ~ep.._. v ........ nd to ensure that when a need is determined that the best service provider is selected at a reasonable cost and within a reasonable time frame. This policy shall be followed in implementing the contracting procedures in Municipal Code sections 2.56. !70 m".d 2.565-.220 et seq. 110. POLICY The City Manager shall follow the policy of careful consideration and structured review prior to initiating any contract for consulting er c'~_'a-, sen4ces. The Council is primarily concerned w/th six aspects of consultant ....... hiring, use and monitoring. First, that a cost comparison be completed for each request to use )utside services to compare the cost of the contract services to the equivalent cost for in-house staff. Second, that pre-qualification lists may be established for solicitation purposes for those serv/ces w.'aic.'n that are likely to be used frequently during any given fiscal year. Third, that the process of advertising and out'each for consultanm be expanded to generate the highest number of qualified respondents and to locate and encourage ?etznti2! bidders who have the potential to stimulate the local Chula Vista economy. Fourth, Ihat .......... ~., ~n ........ ,- ....... ;~.~.wh~n deemed appropriate by the Purchasing Agent, a 10% retention will be included in contxacts for services that will be retained by the City until final acceptance of the services. Fifth, '..hat the Cev-nei! receive mg~.'l?-- netifica.'ien excess ef $25,~n d",a".ng '.Ee mest recur v,,.,elve men'..h r~Aedthat separate contracts of similar scope to a single consultant shall require Council approval when the aggregate total exceeds $100,000 annually on a fiscal year basis. Sixth, and finally, that the hourly compensation rate for former City employees hired on a contractual basis subsequent to termination with the City shall be limited for the First year to a maximum rate equal to salary and benefits at the time of termination. m~t be breugEt befere Cib' Ceunci] r,, IMPLEMENrlNG PROCEDURES The City Manager will implement an administrative procedure covenng the following areas: 1. Cost Comparison Evaluations During the annual budget review process each Department's continuing and proposed use of outside services to accomplish required work shall be evaluated based on a standard cost comparison fe..':m.u!a analysis when the conh-act services are expected to exceed 5-510,000 during the fiscal year. COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: CONSULTANT OR OTHER SERVICES POLICY EFFECTIVE PAGE NUMBER DATE 2 of 2 102-5 064190,1 ADOPTED BY: Resolution No. DATED: The resulting calculations shall be reviewed by the City Manager or Ns/her designee prior to beginning the conxacting process. 2. Pre-Qualification Lists At the beginning of each fiscal year, the Ci.9' Manager Purchasing Agent shall review types of services required and determine for which types of services pre-qualification lists would be appropriate. A solicitation for services may be made using pre-qualified lists approved by the filled bi.' creating a list Cf qualified providers_.~, th.._., k..~.i..,.i,.~.~_~.._....~. ~rtkv..,,~ ...... a ................... r. ..... h:.h .. fil! city ::4de 3. Expanded Advertising and Outreach Depamnent Heads, in conjunction with the Purchasing Agent, shall access all appropriate forms of media when advertising for consultant or other services with an anticipated cost in excess of $100,00(h, in order to obtain the highest number of qualified respondents. In soliciting bids or proposals, staff should be cognizant of locating and encouraging potentia! bidders who have the potential to stimulate the local Chula Vista economy. 4. Contract Retention of 10% Depar~nent Heads and/or the Purchasing Agent shall attempt to negotiate a 10% retention clause to be included in all consultant and other service contacts with an anticipated cost in excess of $I00.000. The 10% of the contract amount will be retained by the City until final acceptance of the ser¥ices. 5. Council Noti tic atio,".~,pproval recent .";ce!ye month pefiodCouncil approval is required when separate contracts of similar scope to a single consultant service provider exceed $100,000 annually on a fiscal year basis. 6. Former Employees - Consultant Compensation Limit During the first year after termination with the City, any employee who is hired back on a contract basis shall be compensated at a maximum hourly rate equal to the salary and benefits level at time of termination. After the first year, all requests to contract with a former City employee at an hourly rate in excess of the employee's salary and benefit rate at time of termination should be brought before City Council for approval. Included in the Agenda Statement should be the compensation recommended, as well as the rate of compensation of this former employee at the point of separation from City employment. Included in the report should be discussion of changes in status of this employee since termination. This may include additional n'aining or education received, changes in the labor and economic market and any administrative overhead or unusual cost which may be included in the proposed wages. PAGE 1, ITEM NO.: t I MEETING DATE: 02/18/03 CITY COUNCIL AGENDA STATEMENT ITEM TITLE: RESOLUTION APPROVING AN AFFORDABLE HOUSING AGREEMENT RELATED TO OTAY RANCH VILLAGE ELEVEN BETWEEN THE CITY AND BROOKFIELD SHEA OTAY, LLC AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT SUBMITTED BY: COMMUNITY DEVELOPMEI~D~IRECTOR ~ ~ REVIEWED BY: CITY MANAGER~ ~j~..~ L~' 4/5THS VOTE: YES ~ NO ~ BACKGROUND On October 23, 2001, the City approved fhe Otay Ranch Village Eleven Sedional Planning Area (SPA) Plan by Council Resolution Number 2001-363. Condition number 30 of the SPA conditions of approval require that Brookfield Shea Otay, LLC (the "Developer") enter into an Affordable Housing Agreement with the City prior to recordation of its first final map for purposes of further implementing its affordable housing obligation for Otay Ranch Village Eleven (the 'Projed"), as defined in the Affordable Housing Plan of the SPA Plan. To comply with this condition, an Agreement for the Project has been prepared for Council's consideration and approval. The Final Maps, Subdivision Agreements, and Supplemental Subdivision Improvement Agreements for those properties within Village Eleven will be considered by the City Council in the near future. RECOMMENDATION That Council adopt the resolution approving the Affordable Housing Agreement for Otay Ranch Village Eleven between the City and Brookfield Shea Otay, LLC and authorizing the Mayor to execute such Agreement on behalf of the City. BOARDS/COMMISSIONS RECOMMENDATION Not applicable. //-/ PAGE 2, ITEM NO.: 1 I MEETING DATE: 02/18/03 DISCUSSION The Ci~/s State-mandated Housing Element, which was adopted by Council in December 2000, requires the provision of housing for all economic groups and distribution of affordable housing developments throughout the Ciys jurisdiction. The City's strategy to implement this mandate is to require 10 percent of any new subdivision in excess of fifty (50) units to be made affordable for Iow and moderate-income families (5% Iow and 5% moderate} and to balance affordable housing development throughout the City. The primary objective of this policy is to increase affordable housing opportunities in the new planned communities in the eastern part of the City. Based on a total of 2,304 residential housing units which are currently allowed to be constructed within Otay Ranch Village Eleven (the "Project"), the developer has an obligation to provide 115 units affordable to Iow income households and 115 units affordable to moderate income households within the Proiect. In order to ensure satisfaction of this obligation, the City has prepared an Agreement for Otay Ranch Village Eleven for Council's consideration and approval. The moderate income housing units will be dispered throughout all phases of the Project. The Iow income housing units will be located in Phase II and possibly Phase III of the planned community and within the areas identified as follows: Nei~lhoborhood I Tenure I Tar~leted Income Group Phase I - 0 units R-22 I For-sale I Moderate Phase II - 163 units R-24 For-sale Moderate R-25 Rental Low and Moderate Phase III - 67 units R- 19 For-sale Low and Moderate Mixed Use Rental Low and Moderate As prescribed in the General Plan, the Iowdncome housing sites were selected for their proximity and/or access to future public transit facilities and neighborhood services and facilities, such as retail commercial centers, public parks and schools. Therefore, all sites would be adequate to accommodate affordable housing as prescribed in the Agreement. PAGE 3, ITEM NO.: I~ MEETING DATE: 02/18/03 The Otay Ranch Village Eleven Affordable Housing Agreement is expeded to be implemented in the following three phases. Phasing J Targeted Income Group J Commence Construdion Date Initial Phase 78dus Moderate Income 1,010'h building permit 85 dus Low Income 1,260~h building permit Final Phase 37 dus Moderate Income 1,738th building permit 30 dus Low Income 2,106'~ building permit The proposed terms of the Agreement for Otay Ranch Village Eleven meets the requirements of the Cys Housing Element ofthe General Plan. Developer has agreed to allterms. It is anticipated that the Developer and the Ci~/will begin its discussions of identifying site and conceptualizing the affordable housing development in late 2004-2005. CEQA Compliance The proposed Agreement for the provision of affordable housing for Otay Ranch Village Eleven has been reviewed for compliance with CEQA. The proposed Agreement is a mechanism for implementation of affordable housing within the prescribed densities and maximum unit count of the Otay Ranch Village Eleven General Development Plan and SPA plan. Approval and execution of the Agreement would not, therefore, result in the construdion of any housing beyond that anticipated in the GDP and SPA plans and the environmental review documents previously certified for those plans. Therefore, no additional CEQA action is necessary. FISCAL IMPACT The developer has paid all costs associated with the processing of the Affordable Housing Agreement. EXHIBIT A VICINITY MAP EASTLAKE TRA/LS & VILLAGE F4~E VISTAS EASTLAKE GREENS VILLAGE ONE VILLAGESLX SPACE VILLAGE Lower ONE WEST VILLAGE TWO V ~ VILLAGE ILLAGE URBAN TEN SEVEN TWO *UNIVERSITY VILLAGE Nlb,qE 'v'ILLAGE VILLAGE THREE EIGHT )rimar3' land u~ is University and secondaD~ land uses are V lages Nine and Ten. A-1 EXHIBIT B DESCRIPTION OF SUBJECT PROPERTY All the certain real property located in the City of Chula Vista, County of San Diego, State of California, described as follows: Lots 1, 2, 8, 9, 10, 11 and 12 of Otay Rancho, in the County of San Diego State of California, according to map thereof No. 862, filed in thc Office of the San Diego County Recorder, February 7, 1900. Excepting from the above described property, that land conveyed to the City of Chula Vista per deed recorded December 31, 2001 as File No. 2001-0975075 of official records. Also excepting from the above described property, that land conveyed to Emily Huntc Black and Henry F. Huntc per deed recorded May 1, 1992 as File No. 1992-0261511 of official records. The area of the herein described parcel contains 660.124 acres, more or less. CHULA VISTA TRACT NO, 01-1_! OTAY RANCH ENTIRE OWNERSHIP & ASSOCIATES B-1 EXHIBIT C OTAY RANCH VILLAGE ELEVEN LOW INCOME HOUSING IMPLEMENTATION SCHEDULE : ~ P~E ~ 85 UrNITS Timing Tasks Prior to approval of thc Phase 2 "A" Map Identify/Define low-income housing project and for thc Project (approximately 325 single submit the following information to thc satisfaction family detached lots in Phase 2). of thc Housing Division of the Community Development Department: 1. Identify and provide proof of control of site. 2. Determine number of units (minimum $5), proposed affordability levels, terms of affordability, and type of housing (rental vs. for-sale). 3. Idcntify subsidies, incentives and financing mechanisms. Prior to issuance of the 996th Building Submit complete site plan application for Design permit for the Project. Review Commission review of a minimum of 85 low-income housing units. Prior to issuance of the 1,060th Building Finalize proposed minimum 85-unit low-income Permit for the project or one month after housing project by submitting the following submittal of the site plan application for information to the satisfaction of the Housing consideration by the Design Review Division of the Community Development Commission, which ever occurs first. Department: 1. Submit Affordable Housing Review Application, including project pro-forma analysis. 2. Identification of financing cycles (tax-credit or bond financing) and timing of financing (each March or July). 3.Affirmative marketing plan. 4. Site Plan approved by Design Review Commission. Prior to Issuance of the 1,124th Building Obtain financing for a minimum of 85 low-income Permit for the project or 2-1/2 months later, housing units to the satisfaction of the Housing whichever event occurs last. Division of the Commtmity Development Department. Prior to Issuance of the 1,260th Building Obtain building permit approval and commence Permit for the project, construction of 85 low-income housing units. C-1 OTAY RANCH VILLAGE ELEVEN LOW INCOME HOUSING IMPLEMENTATION SCHEDULE No later than eighteen (18) months from Obtain Final Inspection and release of utilities for a the date a building permit was obtained for mirfimum of 85 low-income housing units that first building providing units affordable to and restricted for occupancy by low-income households. FIN~ PHASE - 30 UNITS Prior to issuance of thc 1,060th Building Identify/Define low-income housing project and Permit for the project, submit the following information to the satisfaction of the Housing Division of the Community Development Department: 1. Identify and provide proof of control of site. 2. Determine number of units (minimum 30), proposed affordability levels, terms of affordability, and type of housing (rental vs. for-sale). 3. Identify subsidies, incentives and financing mechanisms. Prior to approval of the 1,738th Building Submit complete site plan application for Design Permit for the project. Review Commission review of a minimum of 30 low-income housing units. Prior to issuance of the 1,802nd Building Finalize proposed minimum 30-unit low-income Permit for the project or one month after housing project by submitting the following submittal of the site plan application for information to the satisfaction of the Housing consideration by the Design Review Division of the Community Development Commission, which ever occurs first. Department: 1. Submit Affordable Housing Review Application, including project pro-forma analysis. 2. Identification of financing cycles (tax-credit or bond financing) and timing of financing (each March or July). 3.Affirmative marketing plan. 4. Site Plan approved by Design Review Commission. Prior to Issuance of the 1,866th Building Obtain financing for a minimum of 30 low-income Permit for theprojector2-1/2 months later, housing units to the satisfaction of the Housing whichever event occurs last. Division of the Community Development Department. C-2 OTAY RANCH VILLAGE ELEVEN LOW INCOME HOUSING IMPLEMENTATION SCHEDULE Prior to Issuance of the 2,106th Building Obtain building permit approval and commence Permit for the project, construction of 30 remaining low-income housing units. No later than eighteen (18) months from Obtain Final Inspection and release of utilities for a the date a building permit was obtained for 30 remaining low-income housing units. that first building providing units affordable to and restricted for occupancy by low-income households. OTAY RANCH VILLAGE ELEVEN MODERATE INCOME HOUSING IMPLEMENTATION SCHEDULE : INITIAL PHASE. 78 UNITS : TIMING TASKS Prior to approval of the Phase 2 "A" Map Submit a detailed plan to the satisfaction of the for the Project (approximately 325 single Housing Division of the Community Development family detached lots in Phase 2). Department identifying and specifying sites for moderate income housing, demonstrating the sales price of 78 units at a housing cost affordable to moderate income households and efforts to be made in marketing housing to such income targeted households. Prior to Issuance of the 1,010th Building Obtain building permit for that first building Permit fortheproject, providing units affordable to moderate-income households and commence construction. No later than eighteen (18) months from Submit detailed information to the satisfaction of the the date a building permit was obtained for Housing Division of the Community Development that first building providing units Department demonstrating compliance with the affordable to moderate-income households, requirements that 78 moderate-income housing units or 95% of Building Permits in Phase 2 of have been constructed and sold in Phase 2 of the the Project, whichever event occurs first. Project. Prior to approval of the Phase 3 "A" Map Submit a detailed plan to the satisfaction of the for the Project (approximately 445 single Housing Division of the Community Development family detached lots in Phase 3). Department identifying and specifying sites for moderate income housing, demonstrating the sales price of 37 units at a housing cost affordable to moderate income households and efforts to be made in marketing housing to such income targeted households. Prior to Issuance of the 1,738th Building Obtain building permit for that first building Permit fortheproject, providing units affordable to moderate-income households and commence construction. No later than eighteen (18) months from Submit detailed information to the satisfaction of the the date a building permit was obtained for Housing Division of the Community Development that first building providing units Department demonstrating compliance with the affordable to moderate-income households, requirements that 37 moderate-income housing units or 95% of Building Permits in Phase 3 of have been constructed and sold in Phase 3 of the the Project, whichever event occurs first. Project. C-4 EXHIBIT D Potential Affordable Housing Sites R-7 R~2 R-$. R1 R R-23 R-6 R R-24 S~2 ~'~a' POTENTIAL AFFORDABLE HOUSING SITES D-1 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AFFORDABLE HOUSING AGREEMENT RELATED TO OTAY RANCH VILLAGE ELEVEN BETWEEN THE CITY AND BROOKFIELD SHEA OTAY, LLC AND' AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT WHEREAS, Program 3.1 of the City's Housing Element strives for a balanced residential community through the integration of Iow income housing through out the City and requires that a minimum of ten percent of a new residential development of fifty (50) units or more be made available and affordable to both Iow and moderate income households, with at least one half of those units for Iow income households; and WHEREAS, a condition of approval for the Otay Ranch Village Eleven Tentative Subdivision Map Chula Vista Tract 01-11 required Brookfield Shea Otay, LLC. (the "Developer") to enter into an agreement with the City of Chula Vista to guarantee the construction and delivery of housing units affordable to Iow and moderate income households prior to recordation of Otay Ranch Village Eleven's first final map; and WHEREAS, to comply with this condition, the City has prepared an Affordable Housing Agreement for the Otay Ranch Village Eleven Planned Community for City Council's consideration and approval; and WHEREAS, this Agreement implements affordable housing requirements and impacts previously analyzed in the certified EIR for the Otay Ranch Village Eleven GDP and SPA Plan, therefore, no additional action is required under CEQA. NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Chula Vista that this City Council does hereby approve in the form presented an Affordable Housing Agreement related Otay Ranch Village Eleven, 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 Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by Laurie Madigan .~.~~~~__x~ ~rKna~h~~n Community Development Director ~)...v,y [Hines] J:ICOMMDE~ARESOS\CC Reso VI l Afl Hsg Agr.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.~ah~ny' City Attorney Dated: 2/11/o3 AFFORDABLE HOUSING AGREEMENT OTAY RANCH VILLAGE 11 //-/z Recording Requested by: ) ) CITY CLERK ) ) When Recorded, Mail to: ) ) CITY OF CHULA VISTA ) Attn: Community Development Department ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) ) AFFORDABLE HOUSING AGREEMENT IOTAY RANCH VILLAGE ELEVEN] This Affordable Housing Agreement ("Agreement") is made as of , 2003, by and between the Brookfield Shea Otay, LLC, a California Limited Liability Company ("Developer"), and the City of Chula Vista, a California municipal corporation ("City"), with reference to the £ollowing facts: A. The City of Chula Vista Housing Element established the City's "Affordable Housing Policy" which requires 10% of each housing development of 50 or more units to be affordable to low and moderate income households, with at least one half of those traits (5% of project total units) being designated for low income households. (The Chula Vista Housing Element of the General Plan, Page III-4.) B. Developer owns 489 acres of that certain real property, as shown on Exhibit "A", and located in the portion of the City of Chula Vista (referred to heroin as "Project"). The Project is more particularly described in Exhibit "B" (Legal Description) which is attached hereto and incorporated herein by this reference. C. On October 23, 2001, the City approved an amendment to the Otay Ranch General Development Plan ("GDP") for the Project, by Resolution Number 2001-362, which required compliance with the City's Housing Element of the General Plan. On October 23, 2001, the City approved Ordinance No. 2847 adopting the Otay Ranch, Village Eleven Sectional Planning Area Plan-Planned Community District Regulations. D. On October 23, 2001, the City approved the Otay Ranch Village Eleven Sectional Planning Area (SPA) Plan for the Project by Resolution Number 2001-363. Condition Number 30 of the Project's SPA Plan requires that Developer enter into an affordable housing agreement with the City prior to recordation of its first final map for purposes of further implementing its affordable housing obligation for the project, as such is defined in the Affordable Housing Plan of the SPA Plan. Such SPA Plan provides for the construction of 2,304 total dwelling units within the Developer's ownership interest, with a requirement for five percent of these units being designated for low-income households and five percent for moderate-income households. Council Resolution No. 2003- /I E. On October 23, 2001, the City approved the Otay Ranch Village Eleven Tentative Subdivision Map, Chula Vista Tract 01-11 Resolution Number 2001-364 ("Project Tentative Map"). NOW TItEREFORE~ in consideration of the mutual promises described herein, and other good and valuable consideration, the parties agre+lXrties agree as fo1238Y 1. Definitions. Unless otherwise indicated, for purposes of this Agreement, the following terms shall mean: a. "Low income housing" means housing affordable to a household of persons who claim primary residency at the same dwelling unit with combined incomes that do not exceed 80% of the area median income (adjusted annually) based on household size, as determined annually by the U.S. Department of Housing and Urban Development (HUD). Household size is calculated by the number of persons residing at the same unit as their primary residency. b. "Moderate income housing" means housing affordable to a household of persons who claim primary residency at the same dwelling unit with combined incomes between 80% and 120% of the area median income (adjusted annually) based on household size as determined annually by the U.S. Department of Housing and Urban Development (HUD). Household size is calculated by the number of persons residing at the same unit as their primary residency. The range of income levels described in the above defined terms may change from time to time in accordance with changes to federal, state and local laws. c. "Affordable housing" means housing for which the rent/housing payment paid by an income qualified household shall not exceed a specified fraction of the gross monthly income, adjusted for household size in conformance with applicable financing and assistance programs or California Health and Safety Code Sections 50052.5 (b) and 50053(b), for the following classes of housing: 1. Extremely low-income: thirty percent (30%) or thirty-three percent (33%) of the gross monthly income, adjusted for household size, at thirty (30%) percent of the county median income for rental and for-sale units, respectively; 2. Very low-income: thirty percent (30%) or thirty-three percent (33%) of the gross monthly income, adjusted for household size, at fifty (50%) percent of the county median income for rental and for-sale units, respectively; 3. Low-income: thirty percent (30%) or thirty-three percent (33%) of the gross monthly income, adjusted for household size, at eighty (80%) percent of the county median income for rental and for-sale units, respectively; and, 4. Moderate-income: thirty percent (30%) or thirty-three percent (35%) of the gross monthly income, adjusted for household size, at one hundred twenty (120%) percent of the county mediau income for rental and for-sale units, respectively. 2 Should subsidized financing and/or other offsets to development costs from a public agency be proposed and obtained, the affordable housing rent/housing payment shall be dictated by such program or granting Agency. If no affordable housing expense is specified, the affordable monthly rent/ housing payment shall be established in accordance with Section 50053 and 50052.5 of the California Health and Safety Code, respectively. d. "Developer's Obligation" means the Developer's obligation to provide 10% of the total number of residential units constructed within the Project as low and moderate income housing, with at least 5% consisting of low income housing units, as more particularly set forth in the GDP, SPA, Affordable Housing Plan, and this Agreement. Based upon the total number of anits in the SPA Plan, including the Affordable Housing Plan, within Developer's ownership, the Affordable Housing Obligation for this Project is determined to be one hundred fifteen (115) low-income units and one hundred fifteen (115) moderate-income units (2,304 total number of the Project's residential units times five percent as low income and five pement as moderate income housing units). Such obligation will be satisfied by implementing the requirements set forth in this Agreement. e. "Regulatory Agreement" means a City-approved agreement imposing certain covenants, terms, and conditions on all or any portion of the Project relating to the acquisition, construction, equipping, operation, and occupancy of a residential development providing affordable housing units for low and/or moderate income households to ensure that such development will be developed, owned, and operated in accordance with this Affordable Housing Agreement. 2. Duty to Build. Performance under this Agreement satisfies the Developer's Affordable Housing Obligation as applied to the land covered by the Otay Ranch Village Eleven SPA Plan. a. Moderate income housing units. In order to satisfy Developer's Obligation with regard to moderate income housing, Developer agrees to construct five percent of the total number of the Project's residential units as moderate income housing units. The Developer shall complete construction of the total number of qualified moderate- income housing units required by the Project within two (2) development phases. The first or "Initial Phase" for construction of the moderate income housing units shall be comprised of 68% of the total number of qualified moderate income housing units required by the Project and shall commence construction on or before the issuance by the City of the 1,010th building permit for the Project. Commencement of construction shall mean the Developer has obtained a building permit for that first building providing units affordable to and restricted for occupancy by moderate income households. Developer shall diligently pursue completion of construction of the Initial Phase with construction to be completed no later than eighteen (18) months from the date of commencement of construction of said phase. Thereafter, the Developer shall commence construction of the remaining number of qualified moderate income housing units required by the Project, on or before the City's issuance of the 1,738th building permit for the Project ("Final Phase"). Developer shall diligently pursue 3 /l completion of construction of the Final Phase with construction to be completed no later than eighteen (18) months from the date of commencement of construction of said phase. Commencement of construction shall mean the Developer has obtained a build permit for that first residential unit or first building providing units affordable to moderate income households. Developer shall provide the City a report on an annual basis documenting the progress Developer has made toward meeting Developer's Obligation for moderate-income housing. No further reports shall be required upon satisfaction of this obligation. b. Low income housing unit credits. In order to satisfy, in part, Developer's Obligation with regard to low income housing, Developer may utilize available affordable housing credits created from the development of three and four bedroom units affordable to low income households in satisfaction of the obligation of Otay Ranch Village Eleven and as identified in this Agreement. The City shall provide an affordable housing unit credit for one unit of affordable housing. To encourage the provision of large bedroom units, the City shall provide an additional 0.5 unit credit for each three bedroom unit provided in excess of the 15 percent requirement stipulated within the SPA Affordable Housing Program for the Project and an additional 1.0 unit credit for each four bedroom unit. In no event shall credits for the larger bedroom size units be granted, if such credits will reduce Developer's low-income affordable housing obligation, as defined in Section 1.d. of this Agreement, by more than twenty pement (20%). Those units to be dedicated for occupancy by an on-site property manager and/or maintenance worker are not to be included when determining additional credits due the Developer. c. Low income housing units. In order to satisfy Developer's Obligation with regard to low income housing, Developer agrees to construct low income housing units equal to at least five percent of the total number of the Project's residential units less any credits granted in conformance with Section 2.b. of this Agreement. Such units may be provided through a combination of housing types that may include rental housing, "for-sale" housing, or other forms of housing. Should Developer chose to satisfy, in part, its obligation through the use of second dwelling units constructed in compliance with State and local requirements and regulations, Developer agrees to provide no more than fifteen pement (15%) of this obligation as such. In order to receive a one unit credit towards the Developer's affordable housing obligation, the second dwelling unit must have in place deed restrictions which will require the property to be certified as occupied by an eligible low income household and rented at a rate affordable to a low income household of one and a half persons. Developer, in their sole discretion, may opt to have no income or rental rate restrictions for the property, provided that the Developer shall receive a 0.5 unit credit towards satisfaction of the Developer's affordable housing obligation for each accessory second dwelling unit constructed. The Developer shall complete construction of the total number of qualified low income housing units required by the Project within two (2) development phases. The first or "Initial Phase" for construction of the low income housing units shall be comprised of 74% of the total number of qualified Iow income housing units required by the Project and shall commence construction on 4 or before the issuance by the City of the 1,260th building permit for the Project ("Initial Phase"). Commencement of construction shall mean the Developer has obtained a building pen'nit for that first building providing units affordable to and restricted for occupancy by low income households. Developer shall thereat~er diligently pursue completion of construction of the Initial Phase, with construction of the Initial Phase to be completed no later than eighteen (18) months from the date of commencement of construction of said units. Thereafter, the Developer shall commence construction of the remaining number of qualified low income housing units required by the Project, on or before the City's issuance of the 2,106th building permit for the Project ("Final Phase"). Developer shall diligently pursue completion of construction of the Final Phase with construction of the Final Phase to be completed no later than eighteen (18) months from the date of commencement of construction of said phase. c. Completion of construction. For purposes of paragraph 2(a) and 2(b) of this Agreement, construction shall be considered completed when final inspection of the low or moderate housing unit has been completed and occupancy and utility clearances have been issued in writing by the City. d. Minor delays. The thresholds described herein for commencing construction of low and moderate income housing unitsare based upon the current phasing proposals for the Project as shown on the Tentative Map. City and Developer acknowledge that changes to the Project may be required from time to time which could have a minor or insubstantial impact on the timing of construction of the low or moderate income housing units. Accordingly, changes to the Project that could result in a delay of less than three months in the construction of such units may, in the City's sole discretion, be considered minor or insubstantial by the City's Community Development Director and made without amendment to this Agreement. All other changes shall require a written amendment to this Agreement. 3. Surplus Affordable housing Units. If the Project includes more Low Income Housing Units than five percent (5%) of the total number of units in the SPA Plan and as shown on the Project's Tentative and Final Maps ("Surplus Units"), Developer may, with the City's approval, be entitled to obtain credit for any of the Surplus Units. The City's approval of such credits shall be determined by the City at such time the City and Developer execute a Regulatory Agreement for that project satisfying any or all of Developer's low income housing obligation (to be known as the "Project Level Agreement") and shall be governed by the criteria described below. The extent to which the Developer or other party is entitled to credit by the City for the Surplus Units shall be governed by the City's consideration of the criteria described below and any other such criteria that may be agreed to by the parties pursuant to the applicable Project Level Agreement. The following criteria shall be considered by the City: a. The Developer's contribution, if any, to the Surplus Units; b. The City's contdbntion, if any, to the Surplus Units for which the City may require reimbursement; c. Other public sector contribution, if any, to the Surplus Units; d. The level of affordability achieved by the affordable housing project; 5 II-f7 e. The concentration of affordable housing units within the neighborhood that the Surplus Units are planned: A contribution may include, but is not limited to, direct financial assistance, conveyance of land, standards modifications or any other financial, land use, or regulatory concession which would result in identifiable cost reductions enabling the provision of affordable housing. If Developer is provided a credit for such Surplus Units by the City, Developer may either: 1) apply such credit against Developer's obligation to provide low income housing units in developments other than within the project and located within the City of Chula Vista, 2) apply such credit against Developer's obligation to provide moderate income housing units within the project, or 3) convey the credit to another person or entity to be used by that other person or entity against their obligation to provide low income housing units in the City of Chula Vista. Any person or entity who proposes to met any part or all of their obligation by the use of surplus unit credits must be able to provide evidence demonstrating that the on-site provision of affordable housing presents an "unreasonable hardship" in light of such factors as, but not limited to, project size, site constraints, market competition, difficulty in integrating due to significant price and product disparity, developer capability, and financial subsidies available. Upon a determination by the City that development of affordable housing within the Project presents an unreasonable hardship, the City must then additionally find that the public interest would be served by allowing some or all of the affordable housing units associated with the Project to be produced or operated at a site other than within the project but located within the City of Chula Vista. The public interest finding shall be made when the City determines that the deferral of some or all of Developer's obligation advances the City's housing goals and the relative advantages of the alternative affordable housing site/project substantially outweighs the disadvantages. 4. Duty to Identify. Developer shall construct the affordable housing units at the site(s) as identified on Exhibit "D". Such sites were selected based upon their proximity to and availability of existing and proposed public transit facilities and services, community facilities and services, and employment opportunities. 5. Duty to Implement Affordable Housing Program. Developer shall cause the Affordable Units to be developed, marketed, rented/sold in accordance with the City's goals, policies and programs contained in the Housing Element of the General Plan and the Affordable Housing Program Implementation Guidelines, and the Project's Sectional Planning Area (SPA) Affordable Housing Program, as they may be adopted and amended from time to time, the terms and conditions of which are hereby incorporated by this reference. In the event that there is an inconsistency between this Agreement and the City's affordable housing policies (collectively the "Affordable Housing Policies"), this Agreement shall control and the parties agree, as City deems necessary, to seek any appropriate modifications to the Affordable Housing Policies to create consistency with the terms and conditions hereof. 6. Demand to Build. Notwithstanding the provisions of paragraph 2 of this Agreement, if the City reasonably believes that the Developer will not reach the building permit thresholds 6 I/-f£ described in paragraph 2 (which would trigger the construction of the low income housing units) or not complete construction of the moderate income housing units, the City shall have the right to demand that Developer construct a proportional amount of low and/or moderate income housing units relative to the total number of residential building permits that have been issued for the Project. The City shall provide the Developer with the written demand to construct the units within a reasonable period of time for the Developer to commence construction of said units. Developer shall complete construction of the low and/or moderate income housing units, as required by this paragraph, within one year of the commencement of construction of the units so demanded. The duty contained in this paragraph is non-cumulative to the duty in paragraph 2 with the City providing the Developer with the appropriate amount of credit for completed construction. 7. Right to Withhold Permits. The City has the absolute and unfettered right to withhold the issuance of any building permit for any residential unit within any residential development within the Project that has not been released in accordance with paragraph 9 herein if the Developer is not in compliance with the terms and/or obligations of this Agreement. 8. Development Permits, Maps and Documents. Developer shall at its sole expense, cause the preparation and diligent processing of all permits, agreements, plans, maps, and other documents, including but not limited to, market strategy plans, design development plan, and any amendments to the Project's General Development Plan and Section Planning Area Plan that may be necessary to meet the Developer's Obligation in the time frames set forth herein as Exhibit C, or shall cause such actions to occur. City and Developer agree to cooperate with each other in processing Developer's permits for the Project. Any unreasonable delay caused by City in this regard that is not caused by the fault of the Developer shall not be cause for City declaring Developer in default hereunder and Developer's implementation schedule may be extended for a reasonable number of permits based upon recent absorption over a period of time equal to such delay provided that Developer has used, and continues to use, its best efforts to cause Project completion in a timely manner. 9. Release. a. If Developer transfers any portion of the Project which is subject to the burden of this Agreement, upon request by the Developer or its assignee, the City will release the portion so transferred of the burden of this Agreement as to such assigned portion if such portion has either complied with the requirements of this Agreement or if the Director of Conu-nunity Development, in the Director's sole discretion, determines that other land within the Project will accommodate Developer's Duty to build low income housing units. b. Upon the sale of any individual unit to a homebuyer, the parties agree that such unit shall be released from the provisions of this Agreement. Such release shall not limit or modify in any way Developer's duty to build. c. City further agrees to timely consider any request for release by Developer pursuant to (a) above. When such release is granted, Developer and City agree to amend Exhibit D to identify those other sites to accommodate the affordable housing units in place of those sites originally identified and subsequently released of such burden. Said amendment shall be 7 //-/9 completed administratively and shall require no further action by the City Council and/or Redevelopment Agency. d. In the event that a parcel is to be released pursuant to the provisions of paragraphs (a) or (b) above, the parties agree to execute and record such documentation as is reasonably required by a reputable title insurance company to evidence such release. All costs related to any such release shall be paid by Developer or its assignee; City shall have no responsibility of such costs. e. Upon the recordation of a City-approved regulatory agreement imposing affordable housing covenants with respect to all or any portion of the Project, unless such Regulatory Agreement otherwise expressly provides, the provisions of this Affordable Housing Agreement shall no longer be applicable to such portion of the Project, and the recordation of the Regulatory Agreement shall operate to release such portion of the Project from the terms hereof. f. The release of a portion of the Project from the terms of the Affordable Housing Agreement shall in no way alter the obligations of the Developer under the Affordable Housing Agreement with respect to other portions of the Project which shall continue in full rome and effect until such time as Developer satisfies, in full, Developer's obligation hereunder. 10. Subordination and Notice. a. Subordination. Developer shall enter into subordination agreements with all lien holders having any interest in the Project to ensure that the provisions of this Agreement bind such lien holders should they take title to all or part of the property through quitclaim deed, sale, foreclosure or any other means of transfer of property. Developer shall deliver to the City the fully executed subordination agreements in a form acceptable to the City Attorney and suitable for recording on or before the issuance of the first building permit for the Project. b. Notice. Developer shall provide written notice of the terms of this Agreement (which could be a copy of this Agreement) to all purchasers and potential purchasers of real property within the Project, excluding however, a buyer of an individual housing unit. 11. General Provisions. a. Authority of Signatories. The individuals signing this Agreement on behalf of the City warrant that (i) he or she is duly authorized to sign and deliver this Agreement on behalf of the City in accordance with a duly adopted resolution of the City Council of the City and (ii) this Agreement is binding upon the City in accordance with its terms. Developer and each individual signing this Agreement on behalf of Developer warrants that (i) he or she is duly author/zed to sign and deliver this Agreement on behalf of Developer, and (ii) this Agreement is binding upon the corporation in accordance with its terms. b. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one instrument. 8 c. Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of California. d. Successors. All terms of this Agreement will be binding upon and inure to the benefit of the parties and their respective administrators or executors, successors and assigns. Developer hereby subjects the Project to the covenants, reservations and restrictions set forth in this Agreement. The Developer and the City hereby declare their express .intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the developer's successors in title to the Project; provided, however, that on the termination of this Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instntment hereafter executed covering or conveying the Project or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments. e. Modifications. No modification, waiver or discharge of this Agreement will be valid unless the same is in writing and signed by the parties to this Agreement. f. Entire Agreement. This Agreement contains the entire agreement between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. g. Attorney's fees and costs. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will 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. h. Exhibits. All exhibits referred to in this Agreement are attached, and are a part of, this Agreement. i. Captions. Captions in this Agreement are inserted for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement. j. Recording. The parties hereto shall cause this Agreement to be recorded in the · Official Records of the County of San Diego. k. No Third party Beneficiary. No claim as a third-party beneficiary under this Agreement by any person, corporation or any other entity, shall be made or be valid against City or Developer. I. Incorporation of Recitals. The recitals set forth herein are part of this Agreement. 9 m. Assignment. The obligations of the Developer under this Agreement shall not be assigned in whole or apart, without the express written consent of the City in its sole discretion. Any unapproved assignment shall be null and void. (Next page is Signature Page) ,o SIGNATURE PAGE TO AFFORDABLE HOUSING AGREEMENT OTAY RANCH VILLAGE ELEVEN IN WITNESS WHEREOF, City and Developer have executed this Agreement this day of _, 2003. CITY OF CHULA VISTA By: Steve Padilla, Mayor Attest: By: Susan Bigelow, City Clerk Approved as to form by City Attorney 11 Brookfield Shea Otay LLC, a California limited liability Company By: Shea Otay Village 11 LLC, a California limited liability company, Member By: Shea Homes Limited Parmership, a California Limited partnership, its Sole Member By: J.F. Shea LLC, a Delaware limited liability company, its General Parmer NY~~~/p3J .~. V,,~xt'r.,~ Date: ,~/ By:~-~d ?~ Date: Name: ~ Pt~t..~-~.~_ t t By: Brookfield Otay LLC, a Delaware limited liabili~ company, Member By: Date: Name: Its: By: Date: Name: Its: (HINES) C:\WlNDOWS\Temporary Interact Files\OLK9322\Village I I AffHsg Agreement FinaLdoc [2/7/03 2:20 PM] /t CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California t ss. County of San Diego Sarah A. Cordon, Notary Public [3 proved to me on the basis of satisfactory to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) WITNESS my band and official seal, OPTIONAL X h the information below is not required by law, it may prove valuable to persons relying on the document and could prevent i u dulent removal and reattachment of this form to another document. hed Document Title or Type of Docu~,. -- Document Date: ~, Number of Pages: Signer(s) Other Than Named Abo~ ~i~E~itNY~imes~) Claimed by Signer ~J Individual Top o[ thumb here LJ Corporate Officer -- Title(s): L:J Partner -- r~ Limited [] General [] Attorney-in-Fact E] Trustee © Guardian or Conservator L~ Other: Signer Is Representing: '~ //-2-5' Brookfield Shea Otay LLC, a California limited liability Company By: Shea Otay Village I 1 LLC, a California limited liability company, Member By: Shea Homes Limited Partnership, a California Limited partnership, its Sole Member By: J.F. Shea Co., Inc., a Nevada Corporation, its General Partner By: Date: Name: Its: By: Date: Name: lts: By: Brookfield Otay LLC, a Delaware limited liability company, Member B Y~'~~ Date: Name: Its: (HINES) C:\WINDOWSV/emporary lntcrnet Filcs\OLK9322~Villag¢ I I AffHsg Agreement Final.doc [2/7/03 10:32 AM] 12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ SS. County of San Diego On '--/~....~..~..~,~ ,/?,~:~ .~ , before me, Gladys M. Eddy-Lee, Notary Public, personally appeared John W. Norman and E. Dale Gleed, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument· WITNESS my hand and official seal· Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment 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: Capacities Claimed by Signers RightThumbprint of Signer Signers' Names: Top of Ibumb here [] Individual [] Corporate Officers-Vice Presidents [] Partner--[] Limited [] General U Attorney in Fact ~ Trustee U Guardian or Conservator [] Other: Signers are representing t/-2.? EXHIBIT A VICINITY MAP EASTLAKE TRAILS & ¥TLLAGE Fn'~E VISTAS EASTLAKE GREENS VILLAGE ONE VILLAGE SLX SPACE X,qLLAGI ONE WEST VILLAGE VILLAGE TWO VILLAGE URBAN TEN SE~,~N TWO *UNIX'~RSITY ~S:P~ ' VILLAGE NniNE VILLAGE VILLAGE THREE EIGHT FOUR · -"" Otay Ranch Bdy · Primary land use is Universi~ and secondary land uses are Villages Nine and Ten. EXHIBIT B DESCRIPTION OF SUBJECT PROPERTY All the certain real property located in thc City of Chula Vista, County of San Diego, State of California, described as follows: Lots 1, 2, 8, 9, 10, 11 and 12 of Otay Rancho, in the County of San Diego State of California, according to map thereof No. 862, filed in the Office of the San Diego County Recorder, February 7, 1900. Excepting from the above described property, that land conveyed to the City of Chula Vista per deed recorded December 31, 2001 as File No. 2001-0975075 of official records. Also excepting from the above described property, that land conveyed to Emily Hunte Black and Henry F. Hunte per deed recorded May 1, 1992 as File No. 1992-0261511 of official records. The area of the herein described parcel contains 660.124 acres, more or less. CHULA VISTA TRACT NO. 01-11 OTAY RANCH ENTIRE OWNERSHIP 1000 2000 B-1 EXHIBIT C OTAY RANCH VILLAGE ELEVEN LOW INCOME HOUSING IMPLEMENTATION SCHEDULE IN~ PHASE - 85 UNITS Timing Tasks Prior to approval of the Phase 2 "A" Map Identify,q)efme low-income housing project and for thc Project (approximately 325 single submit the following information to the satisfaction family detached lots in Phase 2). of the Housing Division of the Community Development Department: 1. Identify and provide proof of control of site. 2. Determine number of units (minimum 85), proposed affordability levels, terms of affordability, and type of housing (rental vs. for-sale). 3. Identify subsidies, incentives and financing mechanisms. Prior to issuance of the 996th Building Submit complete site plan application for Design permit for the Project. Review Commission review of a minimum of 85 low-income housing units. Prior to issuance of the 1,060th Building Finalize proposed minimum 85-unit low-income Permit for the project or one month after housing project by submitting the following submittal of the site plan application for information to the satisfaction of the Housing consideration by the Design Review Division of the Community Development Commission, which ever occurs first. Department: 1. Submit Affordable Housing Review Application, including project pro-forma analysis. 2. Identification of financing cycles (tax-credit or bond financing) and timing of financing (each March or July). 3.Affirmative marketing plan. 4. Site Plan approved by Design Review Commission. Prior to Issuance of the 1,124th Building Obtain financing for a minimum of 85 low-income Permit for the project or 2-1/2 months later, housing units to the satisfaction of the Housing whichever event occurs last. Division of the Community Development Department. Prior to Issuance of the 1,260th Building Obtain building permit approval and commence Permit for the project, construction of 85 low-income housing units. OTAY RANCH VILLAGE ELEVEN LOW INCOME HOUSING IMPLEMENTATION SCHEDULE No later than eighteen (18) months from Obtain Final Inspection and release of utilities for a the date a building permit was obtained for minimum of 85 low-income housing units that first building providing units affordable to and restricted for occupancy by low-income households. : FIN~ PHASE ~ 30 UNITS , , Prior to issuance of thc 1,060th Building Identify/Define lowdncome housing project and Permit for the project, submit the following information to the satisfaction of the Housing Division of thc Community Development Department: 1. Identify and provide proof of control of site. 2. Determine number of units (minimum 30), proposed affordability levels, terms of affordability, and type of housing (rental vs. for-sale). 3. Identify subsidies, incentives and financing mechanisms. Prior to approval of thc 1,738th Building Submit complete site plan application for Design Permit for the project. Review Commission review of a minimum of 30 low-income housing units. Prior to issuance of the 1,802"~ Building Finalize proposed minimum 30-unit low-incomc Permit for the project or one month after housing project by submitting the following submittal of the site plan application for information to the satisfaction of the Housing consideration by the Design Review Division of thc Community Development Commission, which ever occurs first. Department: 1. Submit Affordable Housing Review Application, including project pro-forma analysis. 2. Identification of financing cycles (tax-credit or bond financing) and timing of financing (each March or July). 3.Affirmative marketing plan. 4. Site Plan approved by Design Review Commission. Pr/or to Issuance of the 1,866th Building Obtain financing for a minimum of 30 low-income Permit for the project or 2-1/2 months later, housing units to the satisfaction of the Housing whichever event occurs last. Division of the Commtmity Development Department. C-2 OTAY RANCH VILLAGE ELEVEN LOW INCOME HOUSING IMPLEMENTATION SCHEDULE Prior to Issuance of the 2,106a Building Obtain building permit approval and commence Permit for the project, construction of 30 remaining low-income housing units. No later than eighteen (18) months from Obtain Final Inspection and release of utilities for a the date a building permit was obtained for 30 remaining low-income housing units. that first building providing units affordable to and restricted for occupancy by low-income households. OTAY RANCH VILLAGE ELEVEN MODERATE INCOME HOUSING IMPLEMENTATION SCHEDULE INITI~ PHASE ' 78 UNITS TIMING TASKS Prior to approval of the Phase 2 "A" Map Submit a detailed plan to the satisfaction of thc for the Project (approximately 325 single Housing Division of the Community Development family detached lots in Phase 2). Department identifying and specifying sites for moderate income housing, demonstrating the sales price of 78 units at a housing cost affordable to moderate income households and efforts to be made in marketing housing to such income targeted households. Prior to Issuance of the 1~010th Building Obtain building permit for that first building Permit fortheproject, providing units affordable to moderate-income households and commence construction. No later than eighteen (18) months from Submit detailed information to the satisfaction of the the date a building permit was obtained for Housing Division of the Community Development that first building providing units Department demonstrating compliance with the affordable to moderate-income households, requirements that 78 moderate-income housing units or 95% of Building Permits in Phase 2 of have been constructed and sold in Phase 2 of the the Project, whichever event occurs first. Project. Prior to approval of the Phase 3 "A" Map Submit a detailed plan to the satisfaction of thc for thc Project (approximately 445 single Housing Division of the Community Development family detached lots in Phase 3). Department identifying and specifying sites for moderate income housing, demonstrating the sales price of 37 units at a housing cost affordable to moderate income households and efforts to be made in marketing housing to such income targeted households. Prior to Issuance of the 1,738th Building Obtain building permit for that first building Pcrmit for the project, providing units affordable to moderate-income households and commence construction. No later than eighteen (18) months from Submit detailed information to the satisfaction of the the date a building permit was obtained for Housing Division of the Community Development that first building providing units Department demonstrating compliance with the affordable to moderate-income households, requirements that 37 moderate-income housing units or 95% of Building Permits in Phase 3 of have been constructed and sold in Phase 3 of the thc Project, whichever event occurs first. Project. C-4 EXHIBIT D Potential Affordable Housing Sites R~2O R-23 R.22 S~2 ~'~ POTENTIAL AFFORDABLE HOUSING SITES D-1 COUNCIL AGENDA STATEMENT Item Meeting Date: 2/18/03 ITEM TITLE: A) Resolution Approving the Joint Use Agreement within the San Diego County Water Authority Easements and authorizing the Mayor to execute said Agreement. B) Resolution Approving the Otay Ranch Village 11 Water Quality Basins, Desiltation, and NPDES Compliance Agreement between the City and Brookfield Shea Otay Company LLC, a California Limited Liability Company and authorizing the Mayor to execute said Agreement. C) Resolution Approving the Final Map of Chula Vista Tract No. 01- l 1, Otay Ranch Village 11 "A" Map No. 1; accepting on behalf of the City of Chula Vista the various public streets and easements, all as granted on said map within said subdivision; acknowledging on behalf of the City of Chula Vista the Irrevocable Offer of Dedication for Lot "J" for public park purposes; acknowledging on behalf of the City of Chula Vista all Irrevocable Offers of Dedication for Open Space Lots granted on said lnap within said Subdivision; approving the Subdivision Improvement Agreemeut for the cmnpletion of improvements required by said Subdivision and authorizing the Mayor to execute said Agreement. D) Resolution Approving a Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11, Otay Ranch Village I 1 "A" Map No. 1, requiring Brookfield Shea Otay Company LLC to comply with certain unfulfilled conditions of Resolution No. 2001-364, and authorizing the Mayor to execute said Agreement. E) Resolution Approving the Grant of Easements and Maintenance Agreement for Otay Ranch Village 1 I "A" MapNo. 1, establishing specific obligations and responsibilities for maintenance of private landscaping within pnblic right-of-way and authorizing the Mayor to execute said agreement. F) Resolution Approving tbe Slope and Drainage Maintenance Agree~nent for Eastlake Parkway betweeu Stations 11+76.43 and 22+37.30 with Brookfield Shea Otay I,LC, a California Limited Liability Company CDeveloper"), establishing specific obligations and responsibilities for maintenance of slopes and drainage within public right-of-way and City easements and authorizing the Mayor to execute said agreement. SUBMITTED BY: Director of Engineering~(-'~ REVIEWED BY: City Mana'"'~n-~er~,~/*p'//~kx~],-~- t ~ '~- ~j (4/Sths Vote: Yes No X_~..) Tom ht -- r-- ~ 'g Council will consider the first fi¢~nap for Otay Ranch Village 11, (Windingwalk). The development is primarily residential and bi~"~ted by a major utility corridor. The San Diego County Water Authority has approved the form of the Joint Use Agreement to allow a City sewer line to cross their aqueducts. /7. -/ Page 2, Item / ~ Meeting Date: 2/18/03 On October 23,2001 by ResoIation 2001-364, City Council approved the Tentative Subdivision Map for Chula Vista Tract No. 01- i 1; Otay Ranch Village 11 and is commonly known as Windingwalk. The Final Map for Chula Vista Tract No. 01-11 Otay Ranch "A" Map No.1 and associated Subdivision Improvement Agreement and Supplemental Subdivision Improvement Agreement are now before Council for consideration and approval. Tonight, Council will also consider the approval of Otay Ranch Village I 1 Water Quality Basins, Desiltation, and NPDES Compliance Agreement, Grant of Easements and Maintenance Agreement for HOA maintenance within public right-of-way, and Slope and Drainage Maintenance Agreement for maintenance ora temporary Slope on the west side of Eastlake Parkway between Stations 11+76.43 and 22+37.30. All Resolutions being considered tonight are conditions of development for the first Final Map of Otay Ranch Village 11. RECOMMENDATION: That Council adopt the resolutions approving: (A) the Joint Use Agreement with the San Diego County Water Authority, (B) the Otay Ranch Village 11 Water Quality Basins, Desiltation, and NPDES Compliance Agreement, (C) the Final Map and Subdivision Improvement Agreement, (D) the Supplemental Subdivision Improvement Agreement, (E) the Supplemental Subdivision Improvement Agreement (F) the Grant of Easements and Maintenance Agreement, and (G) the Slope and Drainage Maintenance Agreement and authorizing the Mayor to execute said Agreements. It should be noted that Council approval of the Joint Use Agreement ("JUA") with San Diego County Water Authority must occur before or concurrent with Council action on the other resolutions on this agenda item, as the final map which accepts a sewer easement within the San Diego County Water Authority Easements ("SDCWA") cannot be recorded without the JUA. BOARD/COMMISSIONS RECOMMENDATIONS: Not Applicable DISCUSSION: The alignment of the proposed sewer line construction within Crossroad Street encroaches upon an existing 120-foot, 80-foot, and 30-foot SDCWA Easements. SDCWA has approved the form of the JUA with the City of Chula Vista for the sewer easement within Crossroad Street (see Attachment A). The right of way crossing over the SDG&E easements will be subordinate to the utility easements. Further agreements with the SDCWA will be required for the future Right-of-Way dedications within the SDCWA Easements. Final Maps and Associated Improvement Agreements Otay Ranch Village 11 "A" Map No. 1 is the first map for the subdivision. Otay Ranch Village 1 ! commonly known as Windingwalk Subdivision is generally located south of Olympic Parkway between Hunte Parkway and Eastlake Parkway (see Exhibit 1). The final map for the subdivision consists of the following: /7__ -2- ! Page 3, Item C5 Meeting Date: 2/18/03 Number of Lots for Final Map Number of Lots Open Space, Public Public Parks UtilitiesfPublic Uses Total Acreage Otay Ranch Village 11 9 8 l(8.877acres) 484.987 acres "A" Map No.1 A plat for Otay Ranch Village 11 "A" Map No.1 is shown as Exhibit 2. This Final Map is also a Condominium Map for Lot 2 (R-20) with maximum of 78 Dwelling Units, Lot 3 (R-21) with maximum of 112 Dwelling Units and Lot 4(R-22) with maximum of 105 Dwelling Units. These units will not require any additional Map. The final map for the subdivision has been reviewed by the Engineering Department and Department of Planning & Building and found to be in substantial conformance with the approved Tentative Map. The developer has already paid all the applicable fees. Approval of the map constitutes acceptance by the City of all general utility & access easements, drainage & access easement, sewer easement, and landscape buffer & access easements, and sight visibility easements within the subdivision. Approval of the final maps also constitutes acceptance, on behalf of the public, of the following streets: FINAL MAP DEDICATED STREETS Otay Ranch Village l 1 "A" Map Kestrel Falls Road, Exploration Falls Drive, Windingwalk Street, Hidden Path No.1 Drive, Evening Star Street, Portions of Eastlake Parkway and portions of Hunte Parkway Since the Otay Ranch Village 11 Homeowners' Association will maintain the open space lots (except Lot "J"), the City is only acknowledging the offer of dedication of said lots on the Final Map. Approval of the map, therefore, does not constitute acceptance of the Open Space Lots. However, Section 7050 of the Government Code of the State of California provides that an offer of dedication shall remain open and subject to future acceptance by the City. The developer has already executed the following agreements: · Joint Use Agreement with the San Diego Count,/Waster Authority. · Ota¥ Ranch Village 11 Water Quality Basins, Desiltation, and NPDES Compliance Agreement satisfying conditions of approval Nos. 66, 99, and 100 of Resolution 2001-364 of the Otay Ranch Village 1 l Tentative Map which apply to the entire land covered by the Otay Ranch Village 11 Project (Attachment B). · Supplemental Subdivision Improvement Agreement for Ota¥ Ranch Village 11 "A" Map No.1 to satisfy conditions of approval nos. 1-6, 8-19, 21-24, 27, 32, 35, 36, 40, 43, 45, 48, 49, 50, 51, 55, 56, 57, 58, 59, 60, 63, 69, 78, 85, 86, 96, 109, 114, 115,116, 118-121,124, 125, 128, i30, 131,140, 141,142, 150, 151, 155, 164, 172, 174-177, 179, 180, 183, 184, 185, 189, 192, 193, 195, 196-200, 202-205 of Resolution 2001-364 of the Otay Ranch Village 11 which apply to the entire Otay Ranch Village 11 Project. · Subdivision Improvement Agreement for the map and has provided bonds to guarantee construction of the required improvements and to guarantee the subdivision monumentation. /2_ Page 4, Item Meeting Date: 2/18]03 · Grant of Easements and Maintenance Agreement for the grant of easements and maintenance agreement (Attachment C) sets forth the developer's obligation to maintain landscaping in the public right of way. The obligation will be assigned to the homeowner's association (HOA) after the landscaping has been established and turned over to the HOA to maintain. Further agreements will be brought before council with each subsequent map for HOA maintained public property within the subdivision boundary. · Slope and Drainage Maintenance Agreement (Attachment D) set forth the developer's obligation to maintain the slopes and drainage facilities within City's easements until a permanent maintenance district or another altemative funding mechanism is established by the underlying fee owner and approved by the City. Parks The Developer (Brookfield Shea Otay, LLC) has provided an Irrevocable Offer of Dedication of Fee Interest for the land acquisition obligation for Community Park, Lot "J" within Otay Ranch Village 11 "A" Map No.1. No PAD fees have been collected with this Map. PAD fees will be collected with either future Maps or prior to Building Permit issuance for the Condominium Lots. Salt Creek Sewer The entire Village 11 Project is dependent on the Salt Creek Sewer being completed. The Developer has agreed in the SSIA not to seek any building permits until such time as the sewer is completed. The agreements have been reviewed by staff and are ready for Council approval. The City Attorney has approved the agreements as to form. Other Council Action Council will also be considering under separate agendas the formation and modification of Community Facilities Districts CFD 97-02 and CFD-09M for the Preserve and Maintenance obligations of Village 11, the formation of a Pedestrian Bridge DIF, and an Affordable Housing Agreement for Village 11. FISCAL IMPACT: None to the General Fund. All staff costs associated with processing of the improvement plans, final maps and associated agreements will be reimbursed from the developer's deposits. Exhibits: 1. Location plat for Otay Ranch Village I 1 Project 2. Plat for Otay Ranch Village 11 "A" Map No. 1 3. Developer's Disclosure Statement A~actunents: A. Joint Use Agree~nent with San Diego County Water Authority B. NPDES Agreement C. Grant of Easement & Maintenance Agreement D. Slope & Drainage Maintenance Agreement J:\Engineer\LANDI)EV\Projects\Otay Rancl~ Village 1 I\FINAI. MAP\OR-603F CAS bls doc /2 -q EXHIBIT 1 EXHIBIT 3 Appendix B 'Y OF CHULA VISTA DISCLOSURE STATEMENT You are required to file a Statement of Disclosure of certain ownership or financial interests, payments, or campaign contributions, on all matters which will require discretionary action on the part of the City Council, Planning Commission, and all other Official bodies. The following information must be disclosed: 1. List the names of all persons having financial interest in the property which is the subject of the application or the contract, e.g., owner applicant, contractor, subcontractor, material supplier. 2. If any person* identified pursuant to (1) above is a corporation or partnership, list the names of all individuals owning more than 10% of the shares in the corporation or owning any partnership interest in the partnership. ' 3. If any person* identified pursuant to (1) above is non-profit organization or a trust,' list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. N/A 4. Have you had more than $250 worth of business transacted with any member of the City staff, Boards, Commissions, Committees, and Council within the past twelve months? Yes No If yes, please indicate person(s): 5. Please identify each and every person, including any agents, employees, consultants, or independent contractors who you have assigned to represent you before the City in this matter. Hunsaker & A~sociates San Die~o~ Inc. John Norman - Brookfield Homes Paul Barnes - Shea Homes Steve Doyle - Brookfield Homes John Vance - Shea Homes Sandra E.~ Moore - BrooRfield Homes E. Dale Gleed - Brookfield Homes 6. Have you and/or your officers or agents, in the aggregate, contributed more than $1,000 to a Councilmember in the current or preceding election period? Yes __ No × If yes, state which Councilmember(s): (NOTE: ATTACH ADDITIONAL PAGES AS NE~ CESSARY) j ~' '- [ ¢'g-' :)nt~ r/applicant Print or type name of contractodapplicant * Person is defined as; "/Iny individual, firm, co-partnership, joint venture, association, socia! club, freaternal organization, corporation, es!ate, trust, receiver, syndicate, this and any other county, city and country, ciiy municipal tv, distr~ct, or other nt~litP-.I *,,h,h.i.;~. ar Signature format: The following fonnm must be used for all documents that require the owner or contractors signature: Brookfield Shea Otay LLC, a California limited liabili~' company By: Brook.field Otay Inc., a California corporation, Member By: , its By: · its By: Shea Otay Village 11 LLC, a California Iimited liability company, Member Shea Homes Limited Partnership, a Califomia Linfited partnership, its Sole Member By: J.F. Shea Co., Inc., a Nevada Corporation, its General Partner By: , its By: . its 6) Committing Documents: The managing member, Brookfield Otay Inc., MUST get PRIOR written approval from the Shea member BEFORE committing any money. A form has been created to expedite this process. The name oft. he form is Notice of Pending Comm/trnent. If you do not have one please see Jill, Alex or myself to get one. Once this form is completed please give it to Sandy Moore. I will fax it to Shea and give you a copy back once approved. When you receive your approved copy, you may then process the commitment. Keep a copy of the Notice of Pending Commitment with your contract. Remember to have the correct signature block. The document is sent to the subcontractor for execution, then Brook_field Otay's execution and finally to Shea Homes for execution. Alex will be happy to be the point person for getting commitments to and from Shea, th/s will alleviate Shea getting documents from nmuerous people. This process must be done for all documents including change orders and purchase orders. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CiTY OF CHULA VISTA APPROVING THE JO1NT USE AGREEMENT WITHIN THE SAN DIEGO COUNTY WATER AUTHORITY EASEMENTS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the alignment of a proposed sewer line construction within Crossroad Street encroaches upon an existing 120-foot, 80-foot, and 30-foot San Diego County Water Authority (SDCWA) Easements; and WHEREAS, SDCWA has approved the form of the Joint Use Agreement (JUA) ~vith the City of Chula Vista for the sewer easement within Crossroad Street; and WHEREAS, the right of way crossing over the SDG&E easements will be subordinate to the utility easements and further agreements with the SDCWA will be required for the future Right-of-Way dedications within the SDCWA Easements. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Joint Use Agreement within the San Diego County Water Authority Easements, 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. Presented by Approved as to form by Director of Engineering City Attorney J:Sattorney\reso\SDCWA Agreement THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL · Kaheny City Attorney Dated: 2/12/03 JOINT USE AGREEMENT WTIHIN THE SAN DIEGO COUNTY WATER AUTHORITY EASEMENTS /2_ -10 ATTACHMENT A PLEASE RECORD THIS DOCUMENT AT NO FEE AS IT IS TO THE BENEFIT OF THIS DISTRICT (GOV.CODE [6103]) RECORDING REQUESTED BY AND WHEN RECORDED, PLEASE MAIL TO: San Diego County Water Authority Right of Way Department 4677 Ovedand Avenue San Diego, CA 92123-1233 APN # 643-070-09 SPACE ABOVE FOR RECORDER'S USE JOINT USE AGREEMENT BETVVEEN THE CITY OF CHULA VISTA AND THE SAN DIEGO COUNTY WATER AUTHORITY This Agreement is made between the San Diego County Water Authority (hereinafter "Authority") and the City of Chula Vista (hereinafter "City") this dayof ,200_, to allow a 10-inch PVC sewer main to cross the Authority's easement and right of way. WHEREAS, Authority owns certain easements described in Exhibit A and shown on Exhibit B in which it has pipelines and other facilities for the transmission of water ("Authority Easements"); and WHEREAS, Brookfield Shea Otay, LLC is the fee owner of the property that is subject to the Authority's easements; and WHEREAS, City and the Authority desire to establish the terms and conditions for the construction, operation and maintenance of a 10-inch PVC sewer main ("City Facility") under and across Authority's easement and right of way along the route par[icularly shown on Exhibit "B" ("Designated Route"); NOW, THEREFORE, the parties mutually hereby agree as follows: 1. The City, its successors in interest and assigns~ may construct, operate and maintain the City Facility within the property subject to the Authority's Easements along the Designated Route, under the terms and conditions stated herein. 2. Plans for the installation of the City Facility, including work or improvements reasonably necessary to protect the Authority pipelines and other structures and facilities, shall be approved by the Authority in advance of construction. Authority's approval shall not be unreasonably withheld. City shall give written notice to the Authority not more than 30 days nor less than 15 days before the date of commencement of construction of the City Facility. Authority inspectors shall have access to the property during construction. RAROW~M~\Jointuse\01~jua01-078n.doc I of 4 /'Z-,// 3. Neither this Agreement nor the construction, operation or maintenance of the City Facility shall, in any way, limit, alter, modify, expand, or terminate any of the Authority's or City's rights or obligations under the Authority's Easements or any of the rights of the owner of the servient tenement. 4. City agrees not to interrupt the use or operation of Authority's facilities. 5. Authority shall be deemed the "party first in place" and its rights and interests shall be prior in time and superior in title to those of City. Nothing herein contained shall constitute a grant of easement or other interest in property by Authority to City. 6. Following completion of the City Facility, whenever the Authority so requests, the parties agree to work cooperatively to assesses reasonable construction alternatives, coordinate traffic control and otherwise manage the City Facility as deemed necessary by the Authority for the full exercise of its rights under the Authority Easements. Except to the extent specifically provided in an Authority Easement, City shall, at its sole expense, remove and replace, rearrange, restore or relocate the City Facitityas may be necessary or convenient for the Authority's use and enjoyment of its easements. Except in the event of an emergency, Authority agrees to give City 180 days' written notice to remove and replace, rearrange or relocate the City Facility. Plans for removal and replacement, rearranging, or relocation of the City Facilityshall be subject to paragraph 2, above. In the event of an emergency affecting the public health, safety or welfare, as determined by the Authority, or in the event of either (a) City's failure to remove and replace, rearrange, or relocate the City Facility within 180 days after the Authority has given written notice or, (b) City's failure to remove and replace, rearrange, or relocate the City Facilityaccording tO a schedule approved in writing by the Authority within 180 days after the Authority has given written notice, then the Authority may remove the City Facility without obligation to City. This Agreement shall ~ipply to City Facility removed and replaced or restored, rearranged, or relocated pursuant to this paragraph. Authority acknowledges that with respect to the 120-feet wide strip of land subject to Authority Easements recorded as Document No. 59321, recorded March 26, 1959, Book 7568, Page 585; Document No. 157508, recorded August 4, 1959, Book 7806, Page 558; Final Order of Condemnation (Parcel 204-A) recorded October 3, 1983 as Document No. 83-353521; Document No. 1993-0585949, recorded September 3, 1993, the Authority has the obligation to restore the City Facility pursuant to the terms of those certain easements. 7. This Agreement shall run with the land and be binding upon both parties, its representatives, agents, successors, and assigns. 8. The parties understand and agree that this Agreement grants only the consent of the Authority to the activities identified under the terms and conditions stated herein. City is responsible for acquiring any other property rights, licenses, or permits needed to conduct the identified activities. 9. City shall save, indemnify and hold harmless the Authority against any liability, loss, cost, damage and expense caused by or arising from (i) any negligent act(s) R:~ROW~Mgrnt\Jointuse~01~ua01-078n.doc 2 of 4 or omission(s) of City, its employees, agents, contractors, successors and assigns or (ii) the construction, reconstruction, location, re~ocation, maintenance and existence of the City Facility;, including, but not limited to any such loss, cost, damage, liability and expense adsing from damage to or destruction of real and personal property or injury to or death of any person; provided, however, that City duty to indemnify and hold harmless shall not include any claims or liability arising from the established negligence or misconduct of the Authority, its agents, officers, or employees. City shall cause the Authority, and its officers and employees, to be named as an additional insured on any policy or policies of insurance required by the C~ty with respect to the construction, reconstruction, location, relocation, maintenance or existence of the City Facility. 10. The City Facility shall be maintained in a safe and sanitary condition at the ~ole cost, risk, and responsibility of City and its successors in interest. 11. In the event either party commences legal action against the other by reason of an alleged breach of this Agreement or in connection with the use of the Authority's easement and right of way, the prevailing party shall be entitled to recover court costs and attorney's fees as set by the coud. "Prevailing Party" means the party in whose favor final judgment is rendered. 12. Any notice required, permitted, or contemplated under this Agreement shall be deemed given when actually delivered or when deposited in the mail, certified or registered, postage prepaid, addressed as follows: TO AUTHORITY: San Diego County Water Authority Right of Way Department 4677 Ovedand Avenue San Diego, CA 92123-1233 TO COMPANY: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by a duly authorized officer on the day and year first'above written. By: Dated: SAN DIEGO COUNTY WATER AUTHORITY William J. Rose, Director of Right of Way By: Dated: CITY OF CHULA VISTA David D. Rowlands, Jr., City Manager R:\ROW~Mgrnt\J°intuse~01~jua01'078n'doc 3 of 4 /2- Approved as to form: By: Dated: Daniel S. Hentschke, General Counsel San Diego County Water Authority Approved as to form: By: Dated: John M. Kaheny, City Attorney City of Chula Vista R:\ROVC~Mgrrt~Jointuse\01~jua01-078n.doc 4 of 4 EXHIBIT "A" REGARDING JOINT USE AGREEMENT NO. 2001-078N APPLICANT City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 OWNERS Brookfield Shea Otay, LLC a California Limited Liability Company 12865 Pointe Del Mar Way Suite 200 Del Mar, CA 92014 EASEMENT San Diego County Water Authority 4677 Overland Avenue San Diego, California 92123-1233 BENEFITTED PROPERTY Assessor's Pamel Number: 643-070-0 Authoriys Parcel Number: Parcels 204, 204-A (Pipeline 3, Second Aqueduct) Parcels 204-B (Pipeline 4E2, Second Aqueduct) AUTHORITY PROPERTY A strip of land 120 feet in width in a portion of Lots 9 and 10 of Otay Ranch6, in the County of San Diego, State Of California, according to Map No. 862 filed in the office of the County Recorder of said County, February 7, 1900, more particularly described in Document No. 59321, recorded March 26, 1959, Book 7568, Page 585; in Document No. 157508, recorded August 4, 1959, Book 7806, Page 558; in Final Order of Condemnation (Parcel 204-A) recorded October 3, 1983 as Document No. 83-353521; and in Grant of Easement to the San Diego County Water Authority for Parcel 204-B as Document No. 1993-0585949, recorded September 3, 1993, all of Official Re~;ords of said County. PURPOSE This agreement is granted exclusively for the installation of a 10-inch PVC sewer main to cross underneath the Authodty's existing 69-inch and 72-inch pipelines within the Second Aqueduct right of way as shown on Exhibit "B". This agreement does not authorize other construction, grading or planting of trees within the Authority's easement. EXHIBIT "B" LEGAL DESCRIPTION A 20.00 FOOT WIDE STRIP OF LAND IN A PORTION OF LOTS 9 AND 10 OF OTAY RANCHO, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, FEBRUARY 7, 1900, THE CENTERLINE OF SAID 20.00 FOOT WIDE STRIP OF LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A 3/4" IRON PIPE WITH DISC STAMPED "L.S. 3997" SHOWN AND DESCRIBED ON RECORD OF SURVEY NO. 14605 RECORDED IN THE OFFICE OF SAID COUNTY RECORDER, AUGUST 11, 1994, SAID 3/4" IRON PIPE BEING ON THE CENTERLINE OF THE SECOND AQUEDUCT (PIPELINE 4 PHASE 2) DISTANT THEREON SOUTH 49°36'57" EAST, 669.35 FEET (SOUTH 49°36'46'' EAST 669.41 FEET PER SAID R.O.S. NO. 14605) FROM THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE SHOWN ON SAID RECORD OF SURVEY AS" N 49°36'46" W 5669.42' "SAID NORTHERLY TERMINUS BEING AT STATION 5110+72.07 OF SAID RECORD OF SURVEY; THENCE ALONG SAID CENTERLINE, SOUTH 49°36'57" EAST, 611.05 FEET; THENCE LEAVING SAID CENTERLINE, SOUTH 36°02'00' WEST, 70.20 FEET TO A POINT ON THE SOUTHWESTERLY SIDELINE OF THE 120.00 FOOT WIDE EASEMENT TO THE SAN DIEGO COUNTY WATER AUTHORITY RECORDED SEPTEMBER 3, 1993 AS FILE NO. 1993-0585949 OF OFFICIAL RECORDS, AND THE TRUE POINT OF BEGINNING; THENCE NORTH 36°02'00" EAST, 113.40 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 800.00,,?EET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 00°29'51' A DISTANCE OF 6.94 FEET TO THE NORTHEASTERLY SIDELINE OF SAID 120.00 FOOT WIDE EASEMENT AND THE POINT OF TERMINUS. THE SIDELINES OF THE HEREIN DESCRIBED 20.00 FOOT WIDE STRIP OF LAND SHALL BE LENGTHENED OR SHORTENED SO AS TO TERMINATE IN THE SIDELINES OF SAID 120.00 FOOT WIDE EASEMENT. I_.S. 7322 / / ~ ~xp. 12/31/05~, DAVID W. AMBLER L.S. 7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. ;ds M:~2366~03\LEGAL DESCRIPTIONS~A09 JUA SDCWA CROSSROADS.doc WO 2366-03 1/28/03 EXHIBIT "B" 5~0+7207), NU/vlBER IDELTA IRADIUS ILENGTH c7 100°29'5,'' 1800.00 16.94 NUMBER B~RING D/STANCE . L I J 56'02'00"E 115. 40' ~ ~'~ ~ J J6'OP'OO"E 43.20' L3 N J6'02'O0"E 70.20' x~¥' ~x ~ PVC S~ER W~ 24" ~TEEL x ~o~.~x ENCASEMEN~ BORE AND JACK P~CEMENT UNDER EXISTING SDCWA WATERLINES ~ x x ~ 10' MINIMUM VERTICAL CL~RANCE TO BE x ' ~AINTAINED ~ ~ ~ ( ) = ~ECO~D OATA ~'~ ~ ~ PE~ ~.o.s. ~4~05 /~ ~ FO. 3/4" LP. WITH ~ ~ DISC STAMPED :~~~ __ ~ "L.S. 3997" PER LOT 9 ~ S.D.C.W.A. EASEMENTS INDICATES JO. O0 FOOT WIDE ~SEUENT aEC. ~-2~-~ m aooK z~, m~OE 2FO. 8-04-1959 m BOOK 780~, PAGE INDICATES 80.00 FOOT WIDE ~SEMENT RFC. 10-05-198~ AS ~LE NO. 83-55~52L (~ INDICATES 120.00 FOOT WIDE EASEMENT HUNSAKER REC. 09-03-1993 AS FILE NO. &ASSOCIATES ~993-0585949, O.R. ~ SCA~ 1"= 100 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION, AND NPDES COMPLIANCE AGREEMENT BETWEEN THE CITY AND BROOKFIELD SHEA OTAY COMPANY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AND AUTHORiZNG THE MAYOR TO EXECUTE SAID AGREEMENT [,,/HEIR~...h.S, On October 23, 2001, the City Council approved a Tentative Map Tract for Otay Ranch Village 11 by Resolution No 2001-364("CVT 01-11 Tentative Map" or "Tentative Map"). WHREAS, Condition Number 66 of the CVT 01-I 1 Tentative Map requires that the Developer establish and fund a monitoring program for the purpose of monitoring all off-site drainage and erosion protection from Village Eleven subject to the approval of the Regional Water Quality Control Board and the City Engineer; and WHEREAS, Condition Number 99 of the CVT 01-11 Tentative Map requires that the Developer prepare a maintenance program for the naturalized channel and/or detention (water quality) basin facilities in the Salt Creek Basin as shown on Exhibit "A-2" of the Agreement to ensure that silt removal, and general maintenance is performed to the satisfaction ofthe City Engineer; and WHEREAS, Condition Number 100 of the CVT 01-11 Tentative Map requires that the Developer meet certain requirements related to the NPDES permit; and WHEREAS, in order to satisfy Conditions of Approval Nos. 66, 99, and 100 of Resolution 2001-364 for the Otay Ranch Village 11 Tentative Map, the developer has executed an Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Otay Ranch Village 11 Water Quality Basins, Desiltation, and NPDES Compliance Agreement between the City and Brookfield Shea Otay Company LLC, a California Limited Liability Company, 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 for and on behalf of the City of Chula Vista. Presented by Approved as to form by Clifford T. Swanson Jo'h/r/,~. eh~ (J Director of Engineering City Attorhey J: attomcy\~eso\OR Vi I NI'DES Agreement /2 -./2r 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 - ~1l~1~. Kaheny U City Attorney Dated: 2/12/03 OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION, AND NPDES COMPLIANCE AGREEMENT WITH BROOKFIELD SHEA OTAY COMPANY, LLC /Z-Iq Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHDLA VISTA 276 Fourth Avenue Chula Vista, CA 91910 File No: OR-603F OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION AND NPDES COMPLIANCE AGREEMENT (Conditions 66, 99, & 100 of Otay Ranch Village 11 CVT 01-11) This agreement ("Agreement") is entered into ~ ]~, 2003 and effective as of the date last executed by the parties, by and between the City of Chula Vista, a California Municipa~ Corporation ("City"), and Brookfield Shea Otay LLC, a California Limited Liability Company ("BSO" or "Developer"), with reference to the facts set forth below, which recitals constitute a part of the Agreement: BECITALS A. Developer owns approximately 498 acres ("Project") of that certain real property, as more particularly described in Exhibit "A" (Property Description) and as shown on Exhibit "A-l", located within a portion of what is commonly known as Otay Ranch Village 11 planned community. B. On October 23, 2001, the Chula Vista City Council, pursuant to Resolution No. and in accordance with the California Environmental Quality Act ("CEQA") (Pub. Resources Code Section 21000 et seq.), certified the Subsequent Environmental Impact Report for Otay Ranch Village 11 ("EIR"), made certain Findings of Fact, adopted a Mitigation Monitoring and Reporting Program, and adopted a Statement of Overriding Considerations. Page 1 C. On October 23, 2001, the City Council approved a Tentative Map Tract for Otay Ranch Village 11 by Resolution No 2001-364("CVT 01-11 Tentative Map" or "Tentative Map"). D. Condition Number 66 of the CVT 01-11 Tentative Map, as more particularly set forth on Exhibit "B" requires among other requirements that the Developer establish and fund a monitoring program for the purpose of monitoring all off-site drainage and erosion protection from Village Eleven subject to the approval of the Regional Water Quality Control Board and the City Engineer. E. Condition Number 99 of the CVT 01-11 Tentative Map, as more particularly set forth on Exhibit "B", requires among other requirements that the Developer prepare a maintenance program for the naturalized channel and/or detention (water quality) basin facilities in the Salt Creek Basin as shown on Exhibit "A-2" to ensure that silt removal, and general maintenance is performed to the satisfaction of the City Engineer; and F. Condition Number 100 of the CVT 01-11 Tentative Map, as more particularly set forth on Exhibit "B", requires among other requirements that the Developer meet certain requirements related to the NPDES permit; and NOW THEI~EFORE BE IT RESOLVED that the Parties agree as follows: 1. Defined Terms. As used herein, the following terms shall mean: 1.1 "Maintenance District" shall mean a special district established by the City pursuant to State law. 1.2 "Water Quality Basins" means the proposed permanent water quality facilities located adjacent to Salt Creek (downstream of Hunte Parkway) as depicted on the Tentative Map and other related facilities which are necessary to serve the Project as determined by the City Engineer. The basic purpose of the Water Quality Basins is to collect and treat first flush storm water runoff before releasing it downstream. 1.3 ~Maintain" or ~'Maintenance" means to furnish, or the furnishing of, services and materials for the ordinary and usual maintenance required for the operation of the Detention Basins which shall include, but not limited to such activities as, the removal/displacement of sand, silt, sediment, debris, rubbish, woody or aquatic vegetation and other obstructions to flow, the control of weeds, grasses, and emergent vegetation, and the cleaning and clearing of erosion control facilities. Page 2 /2 -Z! 1.4 "Future Improvements" shall mean all proposed permanent drainage and water quality treatment improvements adjacent to that portion of Salt Creek adjacent to the Project. Said improvements shall include, but not be limited to, water quality treatment facilities, as depicted in CVT 01-11 Tentative Map and any other future facility constructed by the Otay Village 11 Project. 1.5 "Complete Construction" shall mean that construction of the improvements have been completed and have been inspected and accepted by the City. 2. Condition No. 66 - Water Quality Basin Monitoring Program. In satisfaction of Condition No. 66 of the project's Tentative Map, the Developer agrees to the following: 2.1 Establish and fund, prior to approval of the first map for the Project, a monitoring program for the purpose of monitoring all off-site drainage and erosion protection from Village Eleven subject to the approval of the Regional Water Quality Control Board and the City Engineer. 2.2 Process and obtain at Developer's own cost any Resource or like Agencies permits and install all off-site drainage and erosion protection facilities to the satisfaction of the City Engineer and as required by the Regional Water Quality Control Board or the City Engineer. 2.3 Provide drainage improvements in accordance with the Master Drainage Plan for Otay Ranch Village Eleven SPA, dated January 25, 2001, or as otherwise approved by the Director of Public Works. 2.4 Maintain all such drainage improvements until said improvements are formally accepted by the applicable maintenance district, or other mechanism as approved by the City. Developer further agrees that said maintenance shall ensure that drainage facilities will continue to operate as designed. 3. Condition No. 99 - Naturalized Channel & Water Quality Basin Maintenance Program. In satisfaction of Condition No 99 of the Project's Tentative Map, prior to the approval of first "B" Map for the Project or Design Review approval for any multifamily lot not requiring the filing of a "B" Map whichever occurs first, Developer agrees to the following: 3.1 Prepare a maintenance program of all the proposed drainage and water quality treatment facilities in Salt Creek, including but not limited to naturalized channel, wetlands restoration areas, detention basins, and water Page 3 quality treatment facilities. The maintenance program shall include, but not be limited to: a) a manual describing the operation and maintenance of the drainage and water quality treatment facilities; b) an estimate of the cost of such operation and maintenance activities; and c) a funding mechanism and schedule for financing the maintenance program. Said maintenance program shall be subject to approval by the City Engineer, Director of Planning and Building, and the Director of Parks and Recreation. The Developer shall be responsible for obtaining the approval of the maintenance program from all applicable federal and state agencies. 3.2 To enter into an agreement with the City of Chula Vista and the applicable resource agencies wherein the parties agree to implement the maintenance program. 3.3 To provide for the maintenance of all proposed drainage and water quality treatment facilities in Salt Creek, including but not limited to the naturalized drainage channel, wetlands restoration areas as allowed by the resource agencies, detention basins, and water quality treatment facilities until the latter to occur of: (i) maintenance of such facilities is assumed by the City, open space district or Master Homeowner's Association, or; ii) the City determines all erosion protection plantings are adequately established. 3.4 To provide for the removal of siltation, attributable to the Project, from all proposed drainage and water quality treatment facilities in Salt Creek, including but not limited to the naturalized drainage channel, wetlands restoration areas as allowed by resource agencies, detention basins, and water quality treatment facilities until all upstream grading of the area contained within the Project is completed and all erosion protection planting is adequately established as determined by the City Engineer, Director of Planning and Building, and Director of Building and Park Construction. 3.5 To provide for the removal of any siltation resulting from all proposed drainage and water quality treatment facilities in Salt Creek, including but not limited to the naturalized drainage channel, wetlands restoration areas as allowed by the resource agencies, detention basins, and water quality treatment facilities, attributable to the Project, for a minimum period of five years after maintenance of such facility is accepted by the City or an appropriate Maintenance District. 3.6 To provide for the removal of siltation from the Water Quality Basins adjacent to Salt Creek Until all Page 4 upstream grading within the Project is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Planning and Building. In addition, Developer shall provide for the removal of siltation attributable to the Project from the Water Quality Basins adjacent to Salt Creek and which are proposed to be publicly maintained by the City or a Maintenance District, for a period of five years after the date the City or a Maintenance District assumes maintenance of the Water Quality Basins. BSO understands and agrees that BSO is responsible for obtaining all necessary permits, approvals and certifications, if any, from the applicable Federal and/or State Agencies, including but not limited to, Fish and Game, the United Sates Army Corps of Engineers. Further, BSO understands and agrees that, in the performance of BSO's obligations hereunder, BSO shall conform to and abide by all the provisions of the ordinances, standards and policies of the City, the laws and statutes of the State of California, and Federal laws and statutes, as may be applicable to said work. The City Engineer shall be solely responsible for determining if any siltation is attributable to the Project. 3.7 To furnish and deliver to the City securities in accordance with Paragraph 5 below, to guarantee Developer's obligations hereunder. In the event of Developer's default in the performance of its obligations as set forth herein, Developer agrees to pay to the City any difference between the total costs incurred by the City to perform such desiltation work, and any proceeds from the improvement security. 4. Condition No. 100 - NPDES Requirements. In satisfaction of Condition No 100 of the Project's Tentative Map, Developer agrees to the following: 4.1 To comply with the requirements of the new Municipal Storm Water Permit {Order No. 2001-01) issued by the San Diego Regional Water Quality Control Board, including revision of plans as necessary. 4.2 To indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non- compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-compliance results from any action by the Developer, any agent or employee, subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses, attorney's fees and Liability incurred by the City. Developer agrees that the City may use, in its sole discretion, any of the cash funds deposited with the City for Page 5 maintenance as required by this Agreement, to pay any fines, costs or expenses incurred as a result of BSO's non compliance with the NPDES regulations. In which case, Developer shall be required to deposit additional money in said deposit account within 5 days of being provided written notice of City's withdrawal of such money. 4.3 That the City Engineer may require incorporation of Standard Urban Water Mitigation Plan (SUSMP) requirements during the implementation period preceding the adoption of the local SUSMP by the City for all priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001-01, NPDES No. CAS0108758 Municipal Permit, as determined by the City Engineer. 4.4 To not protest the formation of a facilities benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. Developer understands this agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to the addition of these improvements and shall not interfere with the right of any person to vote in a secret ballot election. 5. Security for Performance. 5.1 Cash Deposit. Prior to the City's issuance of the first grading permit for the Project, Developer shall provide City with a cash deposit for Developer's removal of siltation obligations under this Agreement, ("Security Deposit") in the sums set forth in Exhibit "C". City shall hold the Security Deposit for the duration of Developer's obligations hereunder, and expend such deposit solely for purposes of said performance obligations in the event of Developer's default in the performance of such obligations. Should the City expend the cash deposit due to Developer's default of its performance obligations, Developer agrees to redeposit the equivalent sum of money needed to equal the amount of the deposit required by this Agreement, as set forth in Exhibit "C", within 30 days of the City's request for such deposit. Ail interest earnings on the Security Deposit shall be retained by the City during this period. Any unexpended amount of the Security Deposit, including any interest earned, shall be released and remitted to Developer upon the termination of its removal of siltation obligations as set forth in this Agreement. 5.2 Bonds. BSO hereby agrees to furnish and deliver to the City at such times as set forth herein and at its sole cost and expense, security bonds in the amounts set forth in Exhibit "C" from a surety company approved by the City for the purpose of guaranteeing BSO's obligations as set forth herein. Said bonds shall be in full force and effect for the Page 6 full period of BSO's obligations as set forth herein. BSO shall provide City with said bond in triplicate in accordance with the provisions of this Agreement. 5.3 The City Engineer may, in his sole discretion, reduce the bond requirements described herein, if it is determined by the City Engineer that the costs for BSO's obligations hereinunder been reduced. In addition, Developer may request that another form of equivalent security, such as a letter of credit or cash, acceptable to the City in its sole discretion, be substituted for the bonds described herein. Developer understands and agrees that such substitution is in the sole discretion of the City. 6. Building Permits- Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of the City of Chula Vista. Therefore, Developer agrees that the City shall have the absolute and unfettered right to withhold the issuance of any building permit for any residential units within the Project if the Developer is determined by the City not to be in compliance with the terms of this Agreement. If Developer is determined by the City not to be in compliance with any term of this Agreement, the City shall notify Developer of Developer's noncompliance and provide Developer with 30 days to cure said noncompliance. The City Engineer in his/her sole discretion may extend the time to cure such noncompliance if the City Engineer determines that Developer is making a good faith and diligent effort to cure such noncompliance. 7. Successors - Release 7.1. Agreement Bindinq Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the real property, described herein as the Project, until released by the mutual consent of the parties or as otherwise provided in the Agreement. 7.2 Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Project and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other Page 7 IZ proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. 7.3 Release of Individual Lots. Each lot or parcel encumbered by this Agreement may, in the City Manager's (or Manager's designee} discretion, be released from the encumbrance hereof upon the issuance of a building permit in conformance with the Tentative Map and/or Final Map with respect to such lot or parcel or upon the conveyance of any such lot or parcel to a homeowner or homeowners association. The City Manager (or Manager's designee) shall not withhold consent to such release so long as the City Manager (or Manager's designee) in good faith finds that the Developer is in compliance with the terms of this Agreement and that such partial release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement, or the conveyance of such lot or parcel to a homeowner's association, such lot or parcel shall be automatically released from the encumbrance hereof. In the event the City Manager (or Manager's designee) agrees to the Release, or escrow closes on any individual homeowner's lot er parcel or any homeowner's association lot or parcel, at the request of Developer or any successor in interest who owns any such lot or parcel, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Attorney which confirms the release of such lot or parcel from the encumbrance of this Agreement. 8. Miscellaneous Provisions. 8.1 Attorneys' Fees. In the event that either Party commences litigation for a specific performance or damages for breach of this Agreement, the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court costs incurred. The prevailing party shall be deemed to be the party who is awarded substantially the relief sought 8.2 Indemnification. Developer further understands and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, or indemnitee, related to the Developer's obligations described herein. Developer further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or Page 8 /2 - 2 7 arising out of acts or omissions of Developer, its agents or employees, or indemnitee, related to the Developer's obligations described herein. The approved improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of Developer's maintenance activities as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the Developer's obligations described herein. The approval of plans for the Developer's obligations described herein and any related improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the Developer's obligations described herein and any related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect regardless of the City's acceptance of any improvements within Salt Creek as described herein. 8.3 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 and any and all other prior or contemporaneous oral or written agreements are hereby superseded. This Agreement may be amended, but only pursuant to a written amendment properly authorized and executed by both parties hereto. 8.4 Compliance with Laws. In the performance of its obligations under this agreement Developer shall comply with any and all applicable federal, state and local laws, regulations, policies, permits and approvals. 8.5 Recitals and Exhibits. Recitals set forth above and all attached Exhibits referred to herein are hereby incorporated herein by this reference. 8.6 Term. This agreement shall remain in effect for so long as either party has executory obligations hereunder. 8.7 Recording. The parties hereto shall cause this Agreement to be recorded in the Official Records of the County of San Diego. Page 9 8.8 Assignment. The obligations of the Developer under this Agreement shall ~ot be assigned in whole or in part, without the express written consent of the City. 8.9 Authority of Signatories. 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 and/or other actions have been taken so as to enable it to enter into this Agreement. 8.10 Termination. Upon the termination of this Agreement pursuant to Section 7 hereof, at the request of Developer or any successor in interest who owns any portion of the Project encumbered by this Agreement, the City shall execute an instrument prepared by Developer and in a form acceptable to the City Attorney in recordable form which evidences the termination of this Agreement and confirms the release of the Project from the encumbrance of this Agreement. 8.11 Force Majeure Except with respect to any obligation to pay money or post securities when due, no party hereto shall be liable for any delay or failure to perform this agreement caused by Force Majeure. As used herein, the term Force Majeure shall mean acts of God; strikes; walkouts; labor disputes or disturbances; war; blockage; insurrection; riot; earthquakes; typhoons; hurricanes; floods; fires; explosions; or other similar circumstances beyond the reasonable control of such party. In the event of Force Majeure likely to cause any such delay or failure, the parties suffering such Force Majeure shall give notice to the other party hereto, stating the particulars of such Force Majeure and shall to the extent it is capable of doing so, remove such cause with all reasonable dispatch, except that, no party shall be required to settle any strike, walkout, labor dispute or disturbance by acceding to the demands of the opposing party when such course is deemed inadvisable by such party. [NEXT PAGE IS SIGNATURE PAGE Page 10 (Signature Page One of Two Pages) OTAY P~a. NCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION ~ NPDES COMPLIANCE AGREEMENT (Conditions 66, 99, & 100 of Otay Ranch Village 11 CVT 01-11) IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day and year first above written. CITY OF CHULA VISTA A Municipal Corporation By: Mayor Steve Padilla Attest: Susan Bigelow, City Clerk Approved as to form: City Attorney Dated: Page 11 (Signature Page Two of Two Pages) OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION AND NPDES COMPLIANCE AGREEMENT (Conditions 66, 99, & 100 of Otay Ranch Village 11 CVT 01-11) BROOKFIELD SHEA OTAY LLC, A CALIFORNIA LIMITED LIABILITY COMPANY BY: SHEA OTAY VILLAGE 11 LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, MEMBER BY: SHEA HOMES LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, ITS SOLE MEMBER LLC, A DELAWARE LIMITED LIABILITY COMPANY, BY: J.F. SHEA ~XXl~KX~X ~~~~ ITS GENERAL PARTNER BY: BROOKFIEhD OTAY LLC, A DELAWARE LIH~TED LIABILITY COHPANY, HEHBER Page 12 (Notary Acknowledgement Required for Each Signatory) State of ~./~'7~/-'~-.P/~ ) County of '~ ~ ~:'O ) On ~/~.~ , before me, ~ ~~ , Notary Public, personally appeared ~ ~. ~ ~ ~~ pemonally known to me ' ' ' to be the person(s) whose name(s) is/~ subscribed to the within instrument and acknowledged to me that~they executed the same in--their authorized capaci~(ies), and that by h!=/hc:/their signatures on the instrument, the person(s), or the entity upon behalf of which the pemon(s) acted, executed the instrument. WITNESS my h~nd~nd official se~ ~ (Notary Acknowledgement Required for Each Signatory) State of ) County of .) On , before me, , Notary Public, personally appeared personally known to me or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature State of Califomia ) ) S.S. County of San Diego ) On February 11, 2003 before me, Sarah A. Cordon, Notary Public, personally appeared Teri Shusterman and John B. Vance personally known to me to be the persons whose name is subscribed to the within instnunent and acknowledged to me that they executed the same in their authorized capacities, and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. LIST OF EXHIBITS Exhibit A ...... Legal Description (Otay Ranch Village 11) Exhibit A-1 ..... Location Plat Exhibit A-2 ..... Water Quality Basin Locations Exhibit B ...... Conditions Nos. 66, 99, and 100 of CVT 01-11 Tentative Map Exhibit C ....... List of Improvement Securities; purpose and amount Page 13 -3¢ EXHIBIT "A" PROPERTY DESCRIPTION OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION AND NPDES COMPLIANCE AGREEMENT (Conditions 66, 99, & 100 of Otay Ranch Village 11 CVT 01-11) Being a Subdivision of a portion of LoTs 1, 9, 10, 11 and 12 of the Otay Rancho, in the City Of Chula Vista, County of San Diego, State of California, According to Map thereof No. 862, Field in the Office of the County Recorder of San Diego County, on February 7, 1900. EXHIBIT "A- 1' LOCATION PLAT FOR OTAY RAlqCH VILLAGE !1 R-7 R-2 R-8 R-5. R-20 R-23 ' R-2~ R-9 R-~ R-22 R-24 P-1 R-10 R-25 S-1 R-11 BIRCH ROAD R-13 EASTERN BASIN SEE EXHIBIT "A-2" R-12 Page l MU-1 R-15 R-14 R-lB R-16 R-17 \~' S-2 WESTERN BASIN '" SEE EXHIBIT "A-2" Page 2 Page 15 EXHIBIT "A-2" WATER QUALITY BASIN LOCATIONS OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION AND NPDES COMPLIANCE AGREEMENT Conditions 66, 99, & 100 of 0tay Ranch Village 11 CVT 01-11) -47O-- Eastern Water Quality Basin Page 1 of 2 ! / "_//[ .... . I I . I . '.-~i ~" '/ / // Western Water Quali~ Basin ease ~ of 2 -- Page 17 /2 -~ EXHIBIT CONDITIONS NO'S 66, 99, & 100 OF CVT 01-11 TENTATIVE MAP APPROVAL OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATIONANDNPDES COMPLIANCE AGREEMENT (Conditions 66, 99, & 100 of 0tay Ranch Village 11 CVT 01-11) 6 6. Prior to approval of the first map for the Project, the Applicant shall establish and fund a monitoring program for the purpose of monitoring all off-site drainage and erosion protection from Village Eleven subject to the approval of the Regional Water Quality Control Board and the City Engineer. If off-site drainage and erosion protection is required as determined by the Regional Water Quality Control Board or the City Engineer, the Applicant shall at its own cost, process and obtain any Resource or like Agencies permits and install drainage and erosion protection facilities to the satisfaction of the City Engineer. The Applicant shall provide drainage improvements in accordance with the Master Drainage Plan for Otay Ranch Village Eleven SPA, dated January 25, 2001, or as .otherwise approved by the Director of Public Works. The Applicant shall maintain all such drainage ~mprovements until said improvements are formally accepted by the applicable maintenance district, or other mechanism as approved by the City. Said maintenance shall ensure that drainage facilities will continue to operate as designed. (Engineering) 99. Prior to approval of the first map for the Project or issuance of the first grading permit for the construction of the proposed naturalized channel and/or detention basins in Salt Creek Basin, whichever occurs earlier, developer shall accomplish the following: a. Prepare a maintenance program of all the proposed drainage and water quality treatment facilities in Salt Creek, including but not limited to naturalized channel, wetlands restoration areas, detention basins, and water quality treatment facilities. The maintenance program shall include, but not be limited to: a) a manual describing the operation and maintenance of the drainage and water quality treatment facilities; b) an estimate of the cost of such operation and maintenance activities; and c) a funding mechanism and schedule for financing the maintenance program. Said maintenance program shall be subject to approval by the City Engineer, Director of Planning and Building, and the Director of Parks and Recreation. The applicant shall be responsible for obtaining the approval of the maintenance program from all applicable federal and state agencies. b. Enter into an agreement with the City of Chula Vista and the applicable resource agencies wherein the parties agree to implement the maintenance program. c. Enter into an agreement with the City of Chula Vista, wherein Developer agrees to the following: i) Provide for the maintenance of all proposed drainage and water quality treatment facilities in Salt Creek, including but not limited to the naturalized drainage Page 18 channel, wetlands restoration areas as allowed by the resource agencies, detention basins, and water quality treatment facilities until the latter to occur of: (a) maintenance of such facilities is assumed by the City, open space district or Master Homeowner's Association, or; (b) the City determines all erosion protection plantings are adequately established. ii) Provide for the removal of siltation, attributable to the Project, from all proposed drainage and water quality treatment facilities in Salt Creek, including but not limited to the naturalized drainage channel, wetlands restoration areas as allowed by resource agencies, detention basins, and water quality treatment facilities until all upstream grading of the area contained within the Project is completed and all erosion protection planting is adequately established as determined by the City Engineer, Director of Planning and Building, and Director of Parks and Recreation. iii) Provide for the removal of any siltation resulting from all proposed drainage and water quality treatment facilities in Salt Creek, including but not limited to the naturalized drainage channel, wetlands restoration areas as allowed by the resource agencies, detention basins, and water quality treatment facilities, attributable to the Project, for a minimum period of five years after maintenance of such facility is accepted by the City or an appropriate Maintenance District. d. Developer shall provide security, satisfactory to the City Engineer, guaranteeing the performance of the aforementioned maintenance and siltation removal obligations. (Engineering) 100. Prior to the approval of the first map for the Project, or issuance of the first grading permit for the Project, whichever occurs earlier, Applicant shall enter into an agreement with the City of Chula Vista, wherein the Applicant agrees to the following: a. Comply with the requirements of the new Municipal Storm Water Permit (Order No. 2001-01) issued by the San Diego Regional Water Quality Control Board including revision of plans as necessary. b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-compliance results from any action by the Applicant, any agent or employee, subcontractors, or others. The applicant's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. c. That the City Engineer may require incorporation of Standard Urban Storm Water Mitigation Plan (SUSMP) requirements during the implementation period preceding the adoption of the local SUSMP by the City, for all priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001-01, NPDES No. CAS0108758 Municipal Permit as determined by the City Engineer. d. To not protest the formation of a facilities benefit district or any other funding -' Page 19 /'~" "~0 mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to the addition of these improvemems and shall not interfere with the right of any person to vote in a secret ballot election. Such Applicant obligation may be reassigned to a Master Homeowner's Association or other appropriate Maintenance District subject to the approval of the City Engineer. (Engineering) Page 20 EXHIBIT "C" SECURITY REQUIBW. MENTS OTAY RANCH VILLAGE 11 WATER QUALITY BASINS, DESILTATION AND NPDES COMPLIANCE AGREEMENT (Conditions 66, 99, & 100 of 0tay Ranch Village 11 CrT 01-11) REMOVAL OF SILTATION (Paragraph 4 of the Agreement) a) Cash Deposit Cash deposit in the amount of $7,000o be submitted prior to the issuance of the first "B" map for the project. b) Maintenance Bond Bond in the amount of $ 22,000 to be submitted prior to the issuance of the first "B" map for the project. J:\Engineer\LANDDEV\Projects\Otay Ranch Village ii\FINAL MAP\Desilt Agmt DRAFT .DOC RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 1-11, OTAY RANCH VILLAGE ll "A" MAP NO. 1, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE VARIOUS PUBLIC STREETS AND EASEMENTS, ALL AS GRANTED ON SAID MAP WITHIN SAID SUBDIVISION; ACKNOWLEDGING ON BEHALF OF THE CITY OF CHULA VISTA THE IRREVOCABLE OFFER OF DEDICATION FOR LOT "J" FOR PUBLIC PARK PURPOSES; ACKNOWLEDGING ON BEHALF OF THE CITY OF CHULA VISTA ALL IRREVOCABLE OFFERS OF DEDICATION FOR OPEN SPACE LOTS, GRANTED ON SAID MAP WITHIN SAID SUBDIVISION; APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. NOW, THEREFORE, BE 1T RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula Vista Tract 1 - 11, OTAY RANCH VILLAGE 11 "A" MAP NO. 1, and more particularly described as follows: Being a subdivision of a portion of Lot 1, 9, 10, 11 and 12 of the Otay Rancho, in the City of Chula Vista, State of California, according to map thereof No. 862, filed in the Office of the County Recorder of San Diego County on February 7, 1900: Area: 484.987 Acres No. of Lots: 19 Numbered Lots: 9 Lettered Lots: 10 Open Space Lots: 28.917 Acres is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, that the City Council accepts on behalf of the public the public streets, to-wit: Kestrel Falls Road, Exploration Falls Drive, WindingwaIk Street, Hidden Path Drive, Evening Star Street, and a portion of Eastlake Parkway and Hunte Parkway, and said streets are hereby declared to be public streets and dedicated to the public use all as shown on Otay Ranch Village 11 "A" Map No. 1 within said subdivision. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula Vista the sewer and storm drain, Iandscape buffer and sidewalk, sight visibility, and general utility and access easements all shown on Otay Ranch Village 11 "A" Map No. 1 within said subdivision. BE IT FURTHER RESOLVED, said Council hereby acknowledges on behalf of the City of C hula Vista the Irrevocable Offer of Dedication in Fee interest of Lot "J" for public park purposes as shown on Otay Ranch Village 11 "A" Map No. 1 within said subdivision. BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lots "D", "E", "F', "G", "H" and "I" for open space and other public purposes all as shown on Otay Ranch Village 11 "A' Map No. 1 within said subdivision. BE 1T FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that said public streets are accepted on behalf of the public as therefore stated and that the Dedication of Fee Interest of Lot "J" for public park purposes is acknowledged on behalf of the City of Chula Vista and that the Irrevocable Offer of Dedication of the fee interest of said lots be acknowledged, and that those certain easements as granted on Otay Ranch Village 11 "A' Map No. 1 within said subdivision are accepted on behalf of the City of Chula Vista as hereinabove state. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the lbr the completion of improvements in said subdivision, a copy of which is on file in the office of the City Clerk, is hereby approved. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby attthorized to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by Clifford T. Swanson John ~ l(dattehy Director of Engineering City Attorney J:\attorney\res0\Final Map Village 11A 2 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 · Kaheny City Attorney Dated: 2/12/03 SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 1-11, OTAY RANCH VILLAGE 11 "A" MAP NO, 1 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest lbr which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this _l~qtkday of q~-r.~z~ ,2003, by and between THE CITY OF CItULA VISTA, a municipal corporation, herei~a~ter called "City", and BROOKFIELD SHEA OTAY, LLC, a California limited liability company, 12865 Pointe Del Mar, Suite 200, Del Mar, CA 92014. hereinafter called "Subdivider" with reference to the facts set lbrth below, which Recitals constitute a part of this Agreelnent; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map ora proposed subdivision, to be known as OTAY RANCH, VILLAGE 11 "A" MAP, NO. 1 (CVT 01-1I) pursuant to the provisions of the Subdivision Map Act of the State of Calilbrnia, and in compliance with the provisions of Title 18 of the Cbula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed ail of the public improvements and/or land development work required by the Code to be installed in subdivisions bel'ore linal maps of subdivisions are approved by the Council for purpose of recording in tire Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivisiou within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2001-364, approved on the 23rd day of October, 2001 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as set forth on Exhibit "A" hereto and on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount as set lbrth on Exhibit "A" hereto and incorporated herein. NOW, THEREFORE, IT IS MUTUALLY I.:NDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land. agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolutimt; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and rnade a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and ali Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. Il is understood and agreed that Subdivider will perform said Improvement Work as set ibrth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready ibr occupancy in said subdivision, prior to the issuance of any certificate of -2- clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said ~vork. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum as set forth on Exhibit "A' hereto which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "B" and made a part hereo£ 7. Subdivider f~_~rther agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum as set forth to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked as Exhibit "B' and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum set forth to secure the installation of monuments, which security is attached hereto, marked Exhibit "B" and made a part bereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the snn~s provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference bet~veen the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work afnresaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any snm or sums for said work or any materials furnished therefore, -3- except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. I 1. It is further understood and agreed by Subdivider that any engineering costs (including plm~ checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is fnrther understood and agreed that Subdivider shall guarantee all public improvements fbr a period of one year Ii'om date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the perfbrmance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public inrprovements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any oftlcer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless frown any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be reqnired to cover the provisions of this paragraph. Snch indemnification and agreement to hold harmless shall extend to damages to adjacent or downstreann properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting fi-om diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. Thc approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety fbr the construction of the subdivision pursuant to said approved improvement plans. The provisions of' this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect lbr ten (10) years folloxving the acceptance by the City of the improvements. I4, Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory -4- agency, appeal board, or legislative body concerning a subdivision.· which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. /2 SIGNATURE PAGE SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH, VILLAGE 11 "A" MAP. NO. 1 (CVT 01-11) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA Mayor of the City of Chula Vista ATTEST City Clerk Approved as to form by City Attorney BROOKFIi;LD SHEA OTAY. LLC a Califo 'nia Limited Liability Company By: Brookfield Otay LLC, a Delaware Limited Liability Company, Member By: Shea Otay Village 11, a California Limited Liability Company, Member y Shea Homes Limited Partnershtp, a Cahforma Lnmted Partnership, its Sole Member By: J.F. Shem~;~~~~}t5 Name: ~'l/~ _ Name: ~/ (Attach Notary Ack~owledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of 0) 5 0 / ss. personally appeared ~ ~, ~ ~ ~~ ~ g proved to me on the basis of satisfacto~ evidence to be the person(s) whose name(s)~/are subscribed to the within instrument and acknowledged to me that h~chc/they executed the same Jn ~/their authorized capacity(ids), and that by h~/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. OPTIONAL Though the info.a/ion below is not required by la~ it may prove valuable to persons relying on the d~ument and could prevent fraudulent removal and reaEachment of this form to another document. Description of Attached Document ~tle or Type of Document: ~ ~1 ~/~/~ /~~ ~. Document Date:_ ~/~ Number of Pages: Signer(s) Other Than Named Above: Capacity(idS) Claimed by Signer Signer's Name: ~ Individual Top of Ihumb hem ~ Corporate Officer ~ Title(s): ~ Pa~ner -- ~ Limited ~ General ~ A~orney-in-Fact ~ Trustee ~ Guardian or Conse~ator ~ Other: Signer Is Representing: State of Califomia ) ) S.S. County of San Diego ) On February 11, 2003 before me, Sarah A. Cordon, Notary Public, personally appeared Teri Shusterman and John B. Vance personally known to me to be the persons whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. EXHIBIT "A" TO SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE I 1 "A" MAP NO. (CVT 01-1 1) ESTIMATED PUBLIC COST OF FAITHFUL LABOR AND IMPROVEMENTS IMPROVEMENTS PERFORMANCE MATERIALS DRAWING NOS. Otay Ranch Village I I $3,240,000.00 $1,620,000.00 $1,620,000.00 02082-01 through Backbone 02082-26 Eastlake Parkway $761,900.00 $380,950.00 $380,950.00 02083-01 through hnprovements 02083- I I Hunte Parkway $722,400.00 $461,200.00 $461,200.00 02143-01 through hnprovements 02143-13 Monumentation $70,000.00 cash deposit which may be replaced with a Per private CMl for Backbone security which meets the terms of this agreement Engineer's or Land Snrveyor's Estimate Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of Council approval of the Subdivision Improvement Agreement -7 RESOLUTION NO.2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-1 I, OTAY RANCH, VILLAGE 11 "A' MAP NO. I, REQUIRING BROOKFIELD SHEA OTAY COMPANY LLC TO COMPLYWITH CERTAINUNFULFILLED CONDITIONS OF RESOLUTION NO. 2001-364, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer has executed a Supplemental Subdivision Improvement Agreement to satisfy remaining conditions of City Council Resolution No. 2001-364. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the a Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11, Otay Ranch, Village 11 "A" Map No. 1, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on behalf of the City of Chula Vista. Presented by Approved as to form by Clifford T. Swanson John l¢{?l~affeny Director of Engineering 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 //47olZrrf M. Kaheny ('/ City Attorney Dated: 2/12/03 SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO. 1 RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 Above Space for Recorder's Use OR-603F SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, CHULA VISTA TRACT NO. 01-11 (Conditions 1 6, 8-19, 21 24, 27, 32, 35, 36, 40, 43, 45, 48, 49, 50, 51, 55, 56, 57, 58, 59, 60, 63, 69, 78, 85, 86, 96, 109, 114, 115, 116, 118-121, 124, 125, 128, 130, 131, 140, 141, 142, 150, 151, 155, 164, 172, 174-177, 179, 180, 183, 184, 188, 189, 192, 193, 195, 196-200, 202-205 of Resolution 2001-364) This Supplemental Subdivision Im~rovement Agreement ("Agreement") is made this --~ day of~6~o~?~ 2003, by and between THE CITY OF CHULA VISTA, Californi~ (~City" for recording purposes only) and the signatories to this Agreement, BROOKFIELD SHEA OTAY, LLC, a California Limited Liability Corporation ("Developer" or "Owner"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is approved Tentative Subdivision Map Chula Vista Tract 01 11 Otay Ranch Village Eleven and is commonly known as Windingwalk. For purposes of this Agreement the term "Project" shall also mean "Property". B. "Owner" or "Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assigns of any property within the boundaries of the Property. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 01-11 ("Tentative Subdivision Map" or "Tentative Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-364 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. Developer has requested the approval of the first "A" Hap for the Project ("First Final Map"). Certain conditions of approval of the Tentative Subdivision Map requires Developer to enter into an agreement with the City prior to approval of the First Final Map for the Project. Said agreement shall run with the entire land contained within the Project. F. City is willing, on the premises, security, terms and conditions herein contained to approve the Final Map for which Developer has applied and Developer has agreed to the terms and conditions set forth herein. G. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. "Complete Construction" shall mean that the construction of the improvements have been completed and have been inspected and accepted by the City. b. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. c. "SPA Plan" means the Otay Ranch Village Eleven Sectional Planning Area Plan as adopted by the City Council on October 17, 2001 pursuant to Resolution No. 2001-363. d. "PFFP" means the Otay Ranch Village Eleven Public Facilities Financing Plan adopted by Resolution No. 2001-363, and as may be further amended from time to time. e. "PSEIR 01 02" means Final Subsequent Environmental Impact Report and its attendant Addendum for the Otay Ranch General Development Plan Amendments/Village Eleven Sectional 2 Area Plan and Conceptual Tentative Map. f. "Improvement Plans" means all the onsite and offsite improvements required to serve the lots created by the Final Map, in accordance with improvement plans to be approved by the City. Said improvements shall include, but not limited to, asphalt concrete pavement, base, concrete curb, gutter and sidewalk, sewer, reclaimed and potable water utilities, drainage facilities, street lights, signage, landscaping, irrigation, fencing and fire hydrants. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The 3 City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association; iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 2. Condition No. 1 - (Agreement to all terms, covenants and conditions). In satisfaction of Condition No. 1 of the 4 Resolution, Developer agrees to all of the terms, covenants and conditions contained herein shall that binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. 3. Condition No. 2 - (Requirements and guidelines). In satisfaction of Condition No. 2 of the Resolution, Developer agrees to comply with all requirements and guidelines of the City of Chula Vista General Plan; the City's Growth Management Ordinance; Chula Vista Landscape Manual, Chula Design Plan; Otay Ranch General Development Plan, Otay Ranch Resource Management Plan, Phase 1 and Phase 2; Ranch Wide Affordable Housing Plan; Otay Ranch Overall Design Plan; FSEIR # 01 02; Otay Ranch Village Eleven Sectional Planning Area (SPA) Plan and supporting documents including: Village Eleven Public Facilities Finance Plan; Village Eleven Parks, Recreation, Open Space and Trails Plan; Village Eleven SPA Affordable Housing Plan and the Non-Renewable Energy Conservation Plan as amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 4. Condition No. 3 - (City's Right to Revoke or Modify Approvals). In satisfaction of Condition No. 3 of the Resolution, if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City. 5. Condition No. 4 (Hold City Harmless). In satisfaction of Condition No. 4 of the Resolution, Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report and subsequent environmental review for the Project and any or all entitlements and approvals issued by the City in connection with the Project. 5 6. Condition No. 5 - (Comply with SPA Conditions). In satisfaction of Condition No. 5 of the Resolution, the Developer agrees to comply with all applicable Village Eleven SPA conditions of approval, {PCM 99 15) as may be amended from time to time. Developer further agrees as follows: a. To implement the final Otay Ranch Village Eleven Air Quality Improvement Plan (AQIP) approved measures and include the measures as part of the Project. The Developer further: i. Agrees to comply and remain in compliance with the AQIP; ii. Waives any claim that adoption of the final AQIP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologies and/or programs change or become available; and iv. Agrees prior to or concurrent with each Final Map for the Project to modify the AQIP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply, as applicable, to development within all future final map areas, but shall not be retroactive to those areas which receive final map approval prior to effect of the subject new measures. b. To implement the final Otay Ranch Village Eleven Water Conservation Plan (WCP) approved measures and include the measures as part of the Project. The Developer further: i. Agrees to comply and remain in compliance with the WCP; ii. Waives any claim that the adoption of a final WCP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time to-time, modify water conservation measures related to new development as various technologies and/or programs change or become available; and 4) agrees prior to or concurrent with each final map for the Project to modify the WCP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply to development within all future final map areas, but shall not be retroactive to those areas which received final map approval prior to effect of the subject 7. Condition No. 6 (Submittal of SPA). In satisfaction of Condition No. 6 of the Resolution, the Developer agrees to prepare and submit, to the satisfaction of, and as deemed necessary by the Director of Planning and Building, an updated Sectional Planning Area (SPA) Plan, and supporting regulating documents including, but not limited to text, exhibits, and tables for the Village Eleven SPA Plan; Planned Community District Regulations; Village Design Plan; Public Facilities FinancD Plan; Affordable Housing Plan Air Quality Improvement Plan; Water Conservation Plan; Non-Renewable Energy Conservation Plan; Parks, Recreation, Open Space and Trails Plan; and applicable environmental documents. 8. Condition No. 8 - (Consistency with Land Offer Agreement). In satisfaction of Condition No. 8 of the Resolution, the Developer agrees that the terms, conditions and time limits associated with this tentative map shall be consistent with the Land Offer Agreement approved by Resolution No. 2000-116 by the City Council on April 11, 2000 ("Land Offer Agreement") and as amended on August 7, 2001. The Developer and City of Chula Vista hereby agrees to comply with the provisions of the Land Offer Agreement and all Amendments thereto, and to remain in compliance with the entire Land Offer Agreement and Amendments for the life of the Agreement. 9. Condition No. 9 - (Participate in Reserve Fund). In satisfaction of Condition No. 9 of the Resolution, the Developer acknowledges and agrees that a reserve fund program has been established by Resolution No. 18288 for the funding ef the Fiscal Impact of New Development (F.I.N.D.) Model for the Otay Ranch Project. The Developer agrees te provide funds to the Reserve Fund as required by the Reserve Fund Program. Pursuant to the previsions of the Growth Management Ordinance and the Otay Ranch General Development Plan (GDP), the Developer agrees te participate in the funding of the preparation of an annual report monitoring the development of the community ef Otay Ranch. The Developer further acknowledges that the annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards; an annual review shall commence following the first fiscal year in which residential occupancy occurs in the Project and is te be completed during the second quarter of the following fiscal year; and the annual report shall adhere te these guidelines noted on page 353, Section D of the GDP/SRP. 10. Condition No. 10 - (Withholding Building Permit). In satisfaction of Condition No. 10 of the Resolution: a. Developer acknowledges and agrees that, prior to the construction of SR-125, the City shall stop issuing new building permits for Village 11 when the City, in its sole direction, determines that either: i. Building permits for a total 9,429 dwelling units have been issued for Projects east of 1-805 (the start date for counting the 9,429 dwelling units is January 1, 2000); or, ii. An alternative measure is selected by the City in accordance with the City of Chula Vista Growth Management Ordinance. b. Developer acknowledges and agrees that notwithstanding the foregoing thresholds, the City may issue building permits if the City decides, in its sole discretion, that any of the following has occurred: i. traffic studies demonstrate, to the satisfaction of the City Engineer, that the circulation system has additional capacity without exceeding the GMOC traffic threshold standards; ii. other improvements are constructed which provide additional capacity; or iii. the City selects an alternative method of implementing the GMOC standards. These traffic studies would not require additional environmental review under CEQA; however, any improvements proposed in these traffic studies would be subject to additional enviuonmental reviews as required. 11. Condition No. 11 (Conveyance Agreement). In satisfaction of Condition No. 11 of the Resolution, Developer hereby agrees to comply with the terms of the Conveyance Agreement, as may be amended from time to time, adopted by Resolution No. 18416 by the City Council on October 22, 1996 ("Conveyance Agreement"). 12. Condition No. 12 (Olympic Parkway Agreement). In satisfaction of Condition No. 12 of the Resolution, Developer hereby agrees that if any of these conditions conflict with the Olympic Parkway Financing and Construction Agreement approved by Council Resolution 19410, the Olympic Parkway Financing and Construction Agreement shall control. 13. Condition No. 13 (Environmental). In satisfaction of Condition No. 13 of the Resolution, Developer hereby agrees, to implement, to the satisfaction of the Director of Planning and Building, all environmental impact mitigation measures identified in Final EIR 01-02 (SCH#2001031120), the candidate CEQA Findings and Mitigation Monitoring and Reporting Program (Final EIR 01 02) for this Project. 14. Condition No. 14 (Other Agencies). In satisfaction of Condition No. 14 of the Resolution, Developer hereby agrees to comply with all applicable requirements of the California Department of Fish and Game, the California State Water Resources Quality Control Board, the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers. Prior to any activity that may potentially impact biological resources, such as clearing and grubbing, the Developer agrees to comply with all applicable requirements prescribed in the ©ray Ranch GDP/Village Eleven Environmental Impact Report EIR 01 02 (SCH~2001031120) , and Mitigation Monitoring and Reporting Program. 15. Condition No. 15 (U.S. Fish and Wildlife/Fish and Game). In satisfaction of Condition No. 15 of the Resolution, Developer hereby agrees, to comply with the Project's take permit/authorization from the U.S. Fish and Wildlife Service and California Department of Fish and Game, and comply with the City of Chula Vista MSCP Subarea Plan. 16. Condition No. 16 (RMP). In satisfaction of Condition 16 of the Resolution, Developer hereby agrees that prior to the approval of each final "B" map Developer shall comply with all requirements and policies of the Otay Ranch Resource Management Plan {RMP) as approved by City Council on October 28, 1993, and Otay Ranch, Phase 2 Resource Management Plan (RMP2) as approved by City Council on June 4, 1996, and as may be amended from time to time by the City. 17. Condition No. 17 (Preserve Conveyance Schedule). In satisfaction of Condition No. 17 of the Resolution, Developer hereby agrees to comply with the requirements and policies of the Otay Ranch Resource Management Plan "Preserve Conveyance Schedule" as approved by City Council on June 4, 1996, as may be amended from time to time. 18. Condition No. 18 (Preserve Management). In partial satisfaction of Condition No. 18 of the Resolution, Developer hereby agrees to ensure through the maintenance of existing fencing or gating, if sufficient, or the construction of new fencing or gating, if deemed necessary by the City, that cattle from adjacent areas cannot access the land being conveyed. 19. Condition No. 19 - (SPA Plan). In satisfaction of Condition No. 19 of the Resolution, Developer hereby agrees to comply with all requirements of the Village Eleven SPA Plan Edge Plan and Agricultural Plan prior to the approval of each final "B" map for the Project. 20. Conditions No. 21, 22, 23 and 24 (Otay Ranch Preserve). In satisfaction of Conditions No. 21, 22, 23 and 24 of the Resolution, Developer agrees to the following: a. (Condition No. 21) Prior to the issuance of each grading permit (including clearing and grubbing) for the Project, the Developer shall comply with the requirements of the RMP and Phase Two RMP to the satisfaction of the Director of Planning and Building. b. (Condition No. 22) The Developer shall convey fee title, or upon the consent of the Preserve Owner/Manager (POM) and any lien holder, an easement restricting use of the land to those permitted by the Otay Ranch Resource Management Plan (RMP), to the POM upon the recordation of each final map for an amount of land equal to the final map's obligation to convey land to the Preserve. Where an easement is conveyed, the Developer shall be required to provide subordination of any prior lien holders in order to ensure that the POM has a first priority interest in such land. Where consent and subordination cannot be obtained, the Developer shall convey fee title. Where fee title or an easement is conveyed, access to the satisfaction of the POM shall also be conveyed, and each tentative map shall be subject to a condition that the Developer shall execute a maintenance agreement with the POM stating that it is the responsibility of the Developer to maintain the conveyed parcel until the Habitat Maintenance District has generated sufficient revenues to enable the POM to assume maintenance responsibilities. Where an easement is granted, each tentative map is subject to a condition that fee title shall be granted upon demand by the POM. The Developer shall irrevocably offer for dedication to the City or its designee, fee title, upon the recordation of each final map for an amount of land equal to the final map's obligation to convey land to the Preserve. The Developer shall maintain and manage the conveyed parcel until the Preserve Community Facilities District (CFD) has generated sufficient revenues to enable the POM to assume maintenance and management responsibilities. 10 c. (Condition No. 23) Upon request of the Director of Planning and Building, Developer shall execute a maintenance agreement with the City or its designee for the Otay Ranch Preserve. d. (Condition No. 24) Prior to issuance of all grading permits and any other grant of approval for any landform modification, the Developer shall identify and protect to the satisfaction of the Director of Planning and Building areas of native vegetation, which shall remain undisturbed pursuant to the MSCP and all Project Permits as applicable to the Project. 21. Condition No. 27 - (Multi-Family). In satisfaction of Condition No. 27 of the Resolution, Developer agrees that the subsequent development of a multi-family lot which doCs not require the filing of a "B" map shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the tentative map, as determined by the City Engineer. 22. Condition No. 32 (Street Trees). In satisfaction of Condition No. 32 of the Resolution, Developer agrees to the following: a. The Developer shall install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code. Ail street trees shall be planted in parkways, or as otherwise approved by the Director of Planning and Building. Street trees, which have been selected from the revised list of appropriate tree species described in the Village Design Plan, shall be approved by the Director of Planning and Building and Director of Engineering. b. Prior to the installation of any dry utilities, including but not limited to cable, telephone, gas or electric lines, Developer agrees to complete preliminary street improvement plans that show the location of all future street trees, which will be subject to the review and approval of the Director of Building and Park Construction and the Director of Planning & Building. Prior to any utility installation, wood stakes shall be placed by the Developer on site according to approved preliminary street tree plans and shall be painted a bright color and labeled as future street tree location. Developer further agrees to provide City documentation, acceptable by the Director of Building and Park Construction and the Director of Planning 11 and Building, that all utility companies have been given notice that no dry utility line shall be located within five feet of the wood stake in any direction. Developer will maintain street tree identification stakes in location as shown on approved preliminary plans until all dry utilities are in place. c. The Developer shall provide root control methods per the requirements of the Director of Planning and Building, and provide a deep watering irrigation system for the trees. d. A street tree improvement plan shall be submitted for review and subject to the approval of the Director of Planning and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute final approval of the selection of street trees for the street parkways. 23. Conditions No. 35 (PFFP). In satisfaction of Condition No. 35 of the Resolution, Developer agrees to install public facilities in accordance with the Otay Ranch Village Eleven SPA, Public Facilities Finance Plan (PFFP) as may be amended from time to time or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. Developer acknowledge that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence, schedule, alignment and design of improvement construction should conditions change to warrant such a revision. 24. Conditions No. 36 (Public Improvements). In satisfaction of Condition No. 36 of the Resolution, Developer agrees to dedicate for public use all the public streets shown on the tentative map within the subdivision boundary. Developer further agrees to construct and secure all street improvements as required by the PFFP, for each particular phase, as may be amended from time to time. The Developer further agrees to construct the public improvements and provide security satisfactory to the City Engineer and City Attorney. 25. Condition No. 40 (Improvement Construction). In satisfaction of Condition No. 40 of the Resolution, Developer agrees to secure in accordance with Section 18.16.220 of the Municipal Code, the construction and construct full street improvements for all on site and off site streets as identified in the Otay Ranch Village Eleven SPA, PFFP, as may be amended from time to time as deemed necessary to provide service to the Project. Said improvements shall include, but not be limited to, asphalt concrete pavement, base, concrete curb, gutter and 12 sidewalk, sewer, reclaimed water and water utilities, drainage facilities, street lights, traffic signals, signs, landscaping, irrigation, fencing and fire hydrants. Street light locations shall be subject to the approval of the City Engineer. 26. Condition No. 43 - (PFFP). In partial satisfaction of Condition No. 43 of the Resolution, Developer agrees to construct and secure, in accordance with Section 18.16.220 of the Municipal Code, the required street improvements listed below and pursuant to Exhibit "B" per the PFFP and/or Specific Planning Area Triggers as may be amended from time to time. · Eastlake Parkway, Olympic Parkway te Kestrel Falls Read · Hunte Parkway, Olympic Parkway to Evening Star Street 27. Condition No. 45 - (PFDIF). In satisfaction of Condition No. 45 of the Resolution, Developer agrees to participate in the funding of revisions of the Public Facilities Development Impact Fee (PFDIF) Program, which shall be prepared by the City, as directed and requested by the City Manager or his designee and subject to the approval of the City Council and Developer will receive appropriate credit for such participation. 28. Condition No. 48 (Fire). In partial satisfaction of Condition No. 48 of the Resolution, Developer agrees to comply with the Fire Department's codes and policies for Fire Prevention, as may be amended from time to time. Developer further agress that prior to the issuance of any building permit(s) for the Project, to provide the following items prior to delivery of combustible materials on any construction site on the Project: a. Water supply consisting ef fire hydrants as approved and indicated by the Fire Department during plan check te the satisfaction of the Fire Department. Any temporary water supply source is subject te prior approval by the Fire Marshal; and b. Emergency vehicle access consisting of a minimum first layer of hard asphalt surface or concrete surface, with a minimum standard width of 20 feet; and c. Street signs installed te the satisfaction ef the Department ef Public Works. Temporary street signs shall be subject te the approval of the Department ef Public Works and Fire Department. Locations and identification ef temporary street signs shall be subject te review and approval by the 13 Department of Public Wo~ks and Fire Department. 29. Conditions No. 49 (Construction Timing). In satisfaction of Condition No. 49 of the Resolution, Developer agrees to obtain the approval of the City's Fire Marshal for the timing of construction of all internal streets in the Project. 30. Conditions No. 50 (Fire Hydrants). In satisfaction of Condition No. 50 of the Resolution, Developer agrees that in addition to those fire hydrants depicted on the tentative map, the Developer shall install additional fire hydrants upon request and to the satisfaction of the Fire Department. 31. Conditions No. 51 (Turnaround). In satisfaction of Condition No. 51 of the Resolution, Developer agrees to construct a temporary turnaround or street improvements, upon the request of and as determined necessary by the City Engineer and Fire Marshal, at the end of temporarily stubbed streets greater than 150 ft. in length (as measured from the nearest street centerline intersection). 32. Conditions No. 55 - (School Site) In partial satisfaction of Condition No. 55 of the Resolution, Developer agrees that prier to approval of all final maps which include a school site (S-i, S-2) for the Project, Developer agrees te construct and secure to the satisfaction of the City Engineer, the following improvements: a. Ail necessary improvements for providing ingress and egress to each school site. This requirement shall also include bnt is net limited to any required modification te medians, storm drainage system, street lights, and irrigation improvements; and, b. If warranted and upon the request of the City Engineer, traffic signal improvements for providing vehicular ingress and egress te the School sites. 33. Conditions No. 56, 177 and 192 (Transit Stops). In satisfaction of Conditions No. 56, 177 and 192 of the Resolution, Developer agrees to: a. (Condition No. 56) Fund and install transit step facilities within the Tentative Hap boundary when directed by the City Engineer. Developer further agrees that the improvement plans for said stops shall be prepared in accordance with the transit step details described in the Village Eleven Design Plan and Village Eleven PFFP and as 14 approved by the Director of Planning and Building and City Engineer. b. (Condition No. 177) Developer further agrees to not protest the formation of any future regional benefit assessment district to finance the MTDB San Diego Trolley LRT System. c. (Condition No. 192) Developer further agrees to construct and secure the transit stop facilities as set forth in the PFFP. The schedule for constructing the transit stops shall be approved or determined by the City Engineer prior to approval of the aforementioned final map. Developer further agrees to design, subject to the approval of the City Engineer said transit stops in conjunction with the improvement plans for the related street. Developer acknowledges and agrees that the City Engineer may require that Developer provide security guaranteeing the construction of said transit stops in a form of cash or any other form approved by the City Engineer at his/her sole discretion. Since transit service availability may not coincide with Project development, the Developer further agrees to install said improvements when directed by the City. 34. Condition No. 57 - (ADA). In satisfaction of Condition No. 57 of the Resolution, Developer agrees to construct sidewalks and construct pedestrian ramps on all walkways to meet "Americans with Disabilities Act" standards and as approved by the City Engineer. In the event the Federal Government adopts ADA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as determined by Federal regulations, only after construction has commenced. 35. Condition No. 58 - (Pedestrian Bridge). In satisfaction of Condition No. 58 of the Resolution, Developer agrees to provide a pedestrian bridge connecting Village Eleven to the Eastern Urban Center (Planning Area 12) crossing (east west) over Eastlake Parkway just north of Hunte Parkway. Developer acknowledges and agrees the timing of the construction of said bridge will be determined by the City, consistent with the requirements of Village Eleven SPA Plan, Public Facilities Financing Plan (PFFP), as may amended from time to time, and development of the Eastern Urban Center in Planning Area 12, Developer further agrees that the bridge shall be constructed in a location as directed by the Director of Planning and Building and the City Engineer. 36. Condition No. 59 (Pedestrian Bridge). In satisfaction of Condition No. 59 of the Resolution, Developer agrees to provide a pedestrian bridge connecting Village Eleven to the University Site (Village Ten) crossing (north - south) over Hunte Parkway between Neighborhoods R 16 and R-17 as depicted on the Parks, Recreation, Open Space and Trails Plan in the Village Eleven SPA Plan. Developer acknowledges and agrees that the timing of the construction of said bridge will be determined by the City, consistent with the requirements of Village Eleven SPA Plan, Public Facilities Financing Plan (PFFP), as may amended from time to time, and development of the University site or Village Ten, Developer further agrees that the bridge shall be gonstructed in a location as directed by the Director of Planning and Building and the City Engineer. 37. Condition No. 60 (Private water in public'street) In satisfaction of Condition No. 60 of the Resolution, Developer agrees to not install privately owned water, reclaimed water, or other utilities crossing any public street. Developer further acknowledges and agrees that the installation of sleeves for future construction of privately owned facilities may be allowed subject to the review and approval of the City Engineer if the following is accomplished: a. The Developer enters into an agreement with the City where the Developer agrees to the following: i. Apply for an encroachment permit for installation of the private facilities within the public.right-of way; and, l~. Maintain membership in an advance notice such as the USA Dig Alert Service; and, iii. Mark out any private facilities owned by the Developer whenever work is performed in the area; and, iv. The terms of this agreement shall be binding upon the successors and assigns of the Developer. b. Shutoff devices as determined by the City Engineer are provided at those locations where private facilities traverse public streets. 38. Condition No. 63 (Street Name Signs). In satisfaction of Condition No. 63 of the Resolution, Developer agrees to install permanent street name signs prior to the issuance of the first building permit for the applicable final map. 16 39. Condition No. 69 - (LOMR). In satisfaction of Condition No. 69 of the Resolution, Developer agrees that prior to transfer of responsibility of maintenance of any basins on the Project, and release of the grading bond to obtain a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency revising the current National Flood Insurance Program Maps to reflect the effect of the drainage improvements. Developer acknowledges and agrees that it shall be the responsibility of the Developer to revise the flood plain map to reflect all modifications and to ensure that no proposed lot will be created in said flood plain. 40. Condition No. 78 - (NPDES). In satisfaction of Condition No. 78 of the Resolution, Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Developer further agrees to file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. The Developer further agrees to comply with all the provisions of the N.P.D.E.S. and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, satisfactory to the City Engineer. The San Diego Regional Water Quality Control Board has issued a new Municipal Storm Water Permit (Order No. 2001-01). The permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric Sizing Criteria for new residential development. The Developer agrees to comply with all relevant City regulations, when they become effective, including but not limited to incorporation into the design and implementation of the Project temporary and permanent structural Best Management Practices and non-structural mitigation measures that would reduce pollution of storm water runoff to the maximum extent practicable. 17 / -73 41. Conditions No. 85, 86, and 155 (SDCWA and SDG&E) . In partial satisfaction of Condition No. 85 of the Resolution, Developer agrees prior to the approval of the first final map which includes these public facilities to enter into a Joint Use Agreement (JUA) with the City, SDG&E and SDCWA in a form acceptable to the City Attorney for all public facilities crossing the SDG&E and SDCWA easements. Developer acknowledges and agrees that such Agreement shall provide the City with prier rights for its Right-of-Way, which crosses the easements. Developer shall be responsible for any payment to SDG&E and SDCWA to ensure that the City has prior rights for any Right of Way crossing the SDG&E and SDCWA easements. Developer acknowledges and agrees that work proposed within another agency's easement would require the agencies signature on the applicable plans prior to permit issuance. The Developer further agrees to pay all costs of any nature incurred by the City as a result of City entering into a JUA with SDCWA and/or SDG&E for public facilities crossing those agencies~ easements within the Project including any and all costs for relocating public facilities at any time pursuant to the terms of any such JUA. 42. Condition No. 96 - (Permitting agencies). In partial satisfaction of Condition No. 96 of the Resolution, Developer agrees to obtain approval from all applicable permitting agencies, including but not limited to FEMA, prior to any work within each of the agencies jurisdiction. Developer further acknowledges and agrees that all mitigation requirements will be the responsibility of the Developer. 43. Condition No. 109 (Salt Creek Sewer). In partial satisfaction of Condition No. 109 of the Resolution, Developer agrees to not seek any building permits for the Project until Salt Creek Trunk Sewer Improvements has been provided for as indicated in the report entitled "Overview of Sewer Service for Village Eleven SPA at the Otay Ranch Project" (Village Eleven SPA Sewer Report) prepared by Wilson Engineering dated March, 2001, or as amended by the Applicant and approved by the Director of Engineering. The Village Eleven SPA Sewer Report shall be consistent with the approved SPA Plan 44. Condition No. 114 (Parks In partial satisfaction of condition 114 of the Resolution, the Developer agrees that the Project shall satisfy the requirements of the Park Land Dedication Ordinance (PLD0). Project Developer further agrees that the Project's Neighborhood Park portion of the local park requirement shall be satisfied through the provision of a 7.0 net-acre Neighborhood Park (P-l) . Developer further agrees that the remaining requirement shall be satisfied in a future 18 Community Park through the payment of fees, dedication of land, or a combination thereof in a manner acceptable to the Director of Building and Park Construction. 45. Condition No. 115 - (Parks). In partial'satisfaction of Condition No. 115 of the Resolution, Developer agrees to provide an all weather access road to the neighborhood park site (P-l) to the satisfaction of the Fire Marshal and Chief of Police and at no cost to the City, upon request from the Director of Building and Park Construction. 46. Condition No. 116 (PAD Fees). In satisfaction of Condition No. 116 of the Resolution, Developer agrees to pay all applicable Parkland Acquisition and Development fees (PAD Fees) to the City in accordance with C.V.M.C Chapter 17.10 prior to approval of each final "B" Map, or, prior to issuance of building permits for condominiums, community apartments, or stock- cooperatives not requiring the filing of a final "B" Map. 47. Conditions Nos. 118, 119, and 120 - (Park Site Requirements). In satisfaction of Conditions Nos. 118, 119, 120 of the Resolution, Developer agrees to comply with the following schedule for commencement of construction and delivery to the City of the Project's park site (P-l) : a. (Condition No. 118) i. Prior to issuance of a building permit for the 360th dwelling unit for the Project, Developer shall have commenced construction of Project's Park (P 1), to the satisfaction of the Director of Building and Park Construction. Developer shall complete construction of the park within nine (9) months of commencement of construction. For purposes of this Condition No. 118, the term "complete construction" shall mean park construction has been completed according to the City approved construction plans and accepted by the Director of Building and Park Construction. Furthermore "compete construction" shall mean prior to and shall not include the City's established maintenance period required prior to acceptance by the City for Public use. ii. Prior to commencement of park construction., and Developer shall prepare, submit and obtain the approval from the Director of Building and Park Construction, City Engineer of a Park Master Plan for the Project and prepare, submit and obtain the approval from the Director of Building and Park Construction of park construction documents and improvement bonds. 19 iii. At any time the Director of Building and Park Construction may, at his sole discretion, modify the neighborhood development phasing and construction sequence for the Project's park should conditions change to warrant such revision. b. (Condition No. 119) Developer agrees to rough grade the Project's park site (P-l) to conform to the approved Park Master Plan to the satisfaction of the City Engineer and the Director of Building and Park Construction and at no cost to the City. c. (Condition No. 120) Developer agrees to install underground utilities to the property line of the Project's park site (P 1) to the satisfaction of the Director of Building and Parks Construction and the City Engineer concurrently with the installation of underground utilities for any portion of the Project adjacent to the park site or upon request of the Building and Park Construction Director, whichever occurs earlier. 48. Condition No. 121 (Withhold Building Permits). In satisfaction of Condition No. 121 of the Resolution, Developer agrees that at no time shall there be a deficit in "constructed neighborhood park". Developer further acknowledges, understands and agrees that the City shall withhold the issuance of building permits for the Project should the Project fail to comply with the conditions herein. For purposes of this condition, the term "constructed park" shall mean the construction of the Project's park has been completed and accepted by the City as being in compliance with the Parks Master Plan, but prior to the City's required mandatory maintenance period. Developer acknowledges that this is not intended to supersede any of the City's maintenance guarantee requirements. 49. Condition No. 124 (Town Square Park). In satisfaction of Condition No. 124 of the Resolution, Developer agrees, prior to issuance of the building permit for the 300th dwelling unit issued within Phase Two of the Project, that Developer shall complete construction of the Town Square (P-4), within Phase Two, to the satisfaction of the Director of Building and Park Construction. The term "complete construction" shall mean park construction has been completed according to the City approved construction plans and accepted by the Director of Building and Park Construction. Furthermore for purposes of this Condition No.124 "Complete Construction" shall mean prior to and shall not include the City's established maintenance period required prior to acceptance by the City for Public use. 2O 50. Condition No. 125 - (Landscape Master Plan). In satisfaction of Condition No. 125 of the Resolution, Developer hereby agrees that within 30 days of the approval of this Agreement, Developer shall submit and obtain the approval of the Director of Building and Park Construction of a Landscape Master Plan which shall include the following major components: a. Landscape Concept. b. Wall and Fence Plan indicating type, material, height, and location. c. Brush Management Plan, identifying three zones and treatment. d. Maintenance Responsibility Plan. e. Planting Concept Plan. f. Master Irrigation Plan. 51. Condition No. 128 (Open space Maintenance District). In partial satisfaction of Condition No. 128 of the Resolution, in the event that Developer requests the formation of a Community Facilities District (CFD), Developer hereby agrees to the following: a. The CFD shall be formed prior to approval of the first "B" map for the Project. b. Subject to the approval of the Director of Engineering, Developer shall submit a list of amenities, acreage and costs for all Open Space District lots including but not limited to the cost of any detention basin maintenance and all costs to comply with the Department of Fish and Game and the U.S. Army Corps of Engineers permit requirements, if any. c. Developer shall maintain the open space improvements for a minimum period of one year or until such time as accepted into the Open Space District by the City, whichever occurs later. d. If Council does not approve the CFD formation, another financing mechanism such as a Master Homeowners Association, or an endowment shall be established and submitted to the City Council for consideration prior to approval of the first B map for the Project. e. The Developer shall provide all the necessary information and materials (e.g., Tables, diagrams, etc.) required by the City Engineer for processing the formation of the proposed open space district. 21 12-77 52. Condition No. 130 (Easements for trails). In satisfaction of Condition No. 130 of the Resolution, Developer agrees that prior to the approval of each Final Map that contains a proposed public trail, Developer shall provide an easement to the City, in a form approved by the City Attorney, for the trail alignment. 53. Condition No. 131 - (Regional Trails). In satisfaction of Condition No. 131 of the Resolution, Developer agrees that all trails shall be bonded/secured and constructed with the approved rough grading, and connect to adjoining existing and/or proposed trails in neighboring development Projects, as determined by the Director of Building and Park Construction. 54. Condition No. 140 (Landscape Plans). In satisfaction of Condition No. 140 of the Resolution, Developer agrees that prior to the issuance of each construction permit for the Project, the Developer shall prepare, submit and obtain the approval of the City Engineer and the Director of Building and Park Construction, landscape and irrigation plans, for open space, parkway, medians and trails. Developer further agrees that all plans shall be prepared in accordance with the current Chula Vista Landscape Manual and the Village Eleven SPA, as may be amended from time to time. Developer further agrees to install all improvements in accordance with approved plans to the satisfaction of the Director of Building and Park Construction. 55. Condition No. 141 (Landscape Plans). In partial satisfaction of Condition No. 141 of the Resolution and prior to the approval of the first final "B" map, Developer agrees to: a. Submit evidence, acceptable to the City Engineer and the Director of Planning and Building of the formation of a Master Homeowner's Association (MHOA), or another financial mechanism acceptable to the City Manager. The MHOA shall be responsible for the maintenance of those landscaping improvements that are not to be included in the proposed financial mechanism. The City Engineer and the Director of Planning and Building may require that some of those improvements shall be maintained by the Open Space District. The final determination of which improvements are to be included in the Open Space District and those to be maintained by the MHOA shall be made during the Open Space District Proceedings. The MHOA shall be structured to allow annexation of future tentative map areas in the event the city Engineer and Director of Planning and Building requires such annexation of future tentative map areas. The MHOA formation documents shall be subject to the approval of the City Attorney; and, 22 b. Submit for City's approval the CC&R's, grant of easements and maintenance standards and responsibility of the MHOA's for the Open Space Areas within the Project area. Developer shall acknowledge that the MHOA's maintenance of public open space, trails, etc. may expose the City to liability. Developer agrees to establish a MHOA that will hold the City harmless from any actions of the MHOA in the maintenance of such areas; and, c. Submit and obtain approval of the City Engineer and the Director of Planning and Building of a list of all Otay Ranch Village Eleven SPA and MHOA facilities and other items to be maintained by the proposed district. Separate lists shall be submitted for the improvements and facilities to be maintained by the Open Space District and those to be maintained by a Master Homeowner's Association. Include a description, quantity and cost per year for the perpetual maintenance of said improvements. These lists shall include but are not limited to the following facilities and improvements: i. Ail facilities located on open space lots such as walls, fences, water fountains, lighting structures, paths, trails, access roads, drainage structures and landscaping. Each open space lot shall also be broken down by the number of acres of: 1) turf, 2) irrigated, and 3) non irrigated open space to aid in the estimation of a maintenance budget thereof. ii. Medians and parkways along Olympic Parkway, Eastlake Parkway and Hunte Parkway, Birch Road, (onsite and offsite) and all other street parkways proposed for maintenance by the applicable Community Facilities District or Homeowners' Association. iii. The proportional share of the proposed detention basin (temporary or permanent) located in the Salt Creek Sewer Basin. This includes the cost of maintenance and all cost to comply with the Department of Fish and Game and the Corps of Engineers permit requirements. iv. The proportional share of the maintenance of the median and parkways along that portion of Olympic Parkway adjoining the development as determined by the City Engineer. v. Ail water quality basins serving the Project. 56. Condition No. 142 - (Open Space Lots). In satisfaction of Condition No. 142 of the Resolution, Developer agrees to execute and record an irrevocable offer of dedication of fee 23 interest to the City on all final maps for all open space lots shown on the tentative map and to be maintained by the City through the open space district. 57. Condition No. 150 (Maintenance District). In satisfaction of Condition No. 150 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the Project. 58. Condition No. 151 (Landscape Funding Mechanism). In satisfaction of Condition No. 151 of the Resolution, Developer agrees that prior to issuance of any grading permit which includes Landscaping and Irrigation (L&I) improvements to be installed in an open space lot to be maintained by the Community Facility District (CFD), the Developer shall place a cash deposit, or other funding mechanism acceptable to the City, in the City's sole discretion, with the City which will guarantee the maintenance of the L&I improvements until the City accepts said improvements. Developer further acknowledges and agrees that in the event the improvements are not maintained to City standards as determined by the City Engineer and the Director of Building and Park Construction, the deposit shall be used to perform the maintenance. Developer further agrees that the amount of the deposit shall be equivalent to the estimated cost of maintaining the open space lots to City standards for a period of six months, ("Minimum Deposit Amount"), as determined by the City Engineer. Developer further agrees that any unused portion of said deposit may be incorporated into the CFD's Reserve Account, or returned to the Developer, according to the following: a. If, six months prior to the scheduled date of acceptance of Landscape and Irrigation improvements for maintenance by the CFD, the Reserve Account is less than the Minimum Deposit Amount, the difference between these two amounts shall be incorporated into the Reserve Account, or; b. If the Reserve Account is at or above the Minimum Deposit Amount, the unused portion of the deposit may be returned to the Developer in 6 equal monthly increments over the last six months of the maintenance period if the maintenance is being accomplished to the satisfaction of the Director of Building and Park Construction. 59. Condition No. 164 - (Off site Right of Way). In partial satisfaction of Condition No. 164, the Developer agrees to notify the City at 16asr 60 days prior to consideration of a map by City if any off-site right-of-way cannot be obtained as required by 24 the Conditions of approval. (Only off-site right-of-way or easements affected by Section 66462.5 of the Subdivision Map Act are covered by this condition.) After said notification, the Developer shall: a. Pay the full cost of acquiring off-site right-of- way and/or easements required by the Conditions of Approval of the tentative map. b. Deposit with the City the estimated cost of acquiring said right-of-way and/or easements. Said estimate to be approved by the City Engineer. c. Have all easements and/or right-of-way documents and plats prepared and appraisals complete which are necessary to commence condemnation proceedings as determined by the City Attorney. d. Request that the City use its powers of Eminent Domain to acquire right-of-way, easements or licenses needed for off-site improvements or work related to the final map. The Developers shall pay all costs, both direct and indirect incurred in said acquisition. 60. Condition No. 172 (Withhold Permits per PFFP). In satisfaction of Condition No. 172 of the Resolution, Developer agrees: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: i. Regional development threshold limits set by the Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with the then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The Developer may propose changes in the timing and sequencing of development and the 25 construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. The Developer agrees that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan {PFFP) for Otay Ranch Village Eleven SPA if the required public facilities, as identified in the PFFP or as amended by the Annual Monitoring Program have not been completed. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit'to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this Project. 2¥ 61. Condition No. 174 (Previous Agreements). In satisfaction of Condition No. 174 of the Resolution, Developer agrees to comply with all previous agreements as they pertain to the Tentative Map. 62. Condition No. 175 (Street Sweeping). In satisfaction of Condition No. 175 of the Resolution, Developer agrees to contract with the City's current street sweeping franchisee, or other server approved by the Director of Engineering to provide street sweeping for each phase of development on a frequency and level of service comparable to that provided for similar areas of the City. The Developer further agrees to cause street sweeping to commence immediately after the final residence, in each phase, is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list items, whichever is shorter. The Developer further agrees to provide the City Special Operations Manager with a copy of the memo requesting street sweeping service, which memo shall include a map of areas to be swept and the date the sweeping will begin. 63. Condition No. 176 (Regional Impact Fees). In satisfaction of Condition No. 176 of the Resolution, Developer agrees to not protest the formation of any future regional benefit assessment district formed to finance regional facilities. 64. Condition No. 179 (No Protest LRT Assessment Formation). In satisfaction of Condition No. 179 of the Resolution, Developer agrees to not protest the formation of any potential future regional benefit assessment district formed to finance the Light Rail Transit (LRT) . 65. Condition No. 180 - (Open Space Lots). In satisfaction of Condition No.180 of the Resolution, Developer agrees to construct and secure open space landscape improvements within the map area as set forth on Exhibit "B". 66. Condition No. 183 - (PFFP). In satisfaction of Condition No. 183 of the Resolution, Developer agrees to install all public facilities in accordance with the Village Eleven Public Facilities Finance Plan (PFFP), or as required to meet the Growth Management Threshold standards adopted by the City. Developer acknowledges and agrees that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code 27 (Growth Management Ordinance) as may be amended from time to time by the City. Said Chapter includes but is not limited to Threshold Standards (19.09.040) Public Facilities Plan Implementation (19.09.090) and Threshold Compliance Procedures (19.09.100) . 67. Condition No. 184 (Interim facilities). In satisfaction of Condition No. 184 of the Resolution, Developer agrees that the maintenance and demolition of all interim facilities (public facilities, utilities and improvements) is the Developer's responsibility, and that construction and demolition bonds will be required to the satisfaction of the City Engineer. 68. Condition No. 185 (Offsite ROW). In satisfaction of Condition No. 185 of the Resolution, Developer agrees to acquire offsite right of way and easements necessary to comply with the PFFP schedule to be dedicated to the City. Developer also agrees to bond for the off-site improvements as required by the City Engineer. 69. Condition No. 189 (Annual review). In satisfaction of Condition No. 189 of the Resolution, Developer agrees that pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC) and the Otay Ranch General Development Plan (GDP), and as they may be amended from time to time, the Developer shall complete the following: (1) Fund the preparation of an annual report monitoring the d~velopment of the community of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), Projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 70. Condition No. 193 (Phasing Plan). In satisfaction of Condition No. 193 of the Resolution, Developer agrees that any proposals to modify the Village Eleven SPA approved phasing plan, shall be submitted to the City for review and approval prior to approval of the first final "B" Map. The Developer further acknowledges and agrees that the PFFP shall be revised where necessary to reflect the revised phasing plan. 28 71. Condition No. 195 (Phasing Plan). In satisfaction of Condition No. 195 of the Resolution, Developer agrees that if phasing is proposed within an individual map or through multiple final maps, the Developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any final map. Developer further acknowledges and agrees that improvements, facilities and dedications to be provided with each phase or unit of development shall be as determined by the City Engineer and Director of Planning and Building. Developer acknowledges that the City reserves the right to require said improvements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requirements of police and fire departments, and that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees that the City Engineer may change the timing of construction of the public facilities. 72. Condition No. 196 - (Phasing Plan). In satisfaction of Condition No. 196 of the Resolution, Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or as required to meet threshold standards adopted by the City of Chula Vista. Developer acknowledges that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the Project area; that throughout the build-out of Village Eleven SPA, actual development may differ from the assumptions contained in the PFFP; and that neither the PFFP nor any other Village Eleven SPA Plan document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the Village Eleven SPA's facility improvement requirements to those identified in the PFFP. Developer acknowledges that compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern Village Eleven SPA development patterns and the facility improvement requirements to serve such development. In addition, Developer acknowledges and agrees that the sequence in which improvements are constructed shall correspond to any future Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City and that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. 73. Condition No. 197 (Phasing Plan). In satisfaction of Condition No. 197 of the Resolution, Developer agrees that prior 29 to approval of any final map proposing the creation of a Multi- family housing for the Project including Planning Areas R-17, R 18, R-19, R-23, R-24, R-25 or MU-1 as a condominium Project, community apartment Project, or stock cooperative, as defined in the applicable sections of the Government Code, Developer agrees to process a subsequent tentative map for said proposed condominium, community apartment, or stock cooperative Project in said Planning Area pursuant to Section 66426 of the Subdivision Map Act. 74. Condition No. 198 (Code Requirements). In satisfaction of Condition No. 198 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. Developer acknowledges and agrees that preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. Developer further agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 75. Condition No. 199 (Code Requirements). In satisfaction of Condition No. 199 of the Resolution, Developer agrees to pay the following fees in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. d. Interim SR-125 impact fee. e. Salt Creek Sewer Basin and Poggi Canyon Sewer Basin DIP. f. The Pedestrian Bridge DIF. g. The FIND Model reserve Fund Fee. Developer agrees to pay the amount of said fees in effect at the time of issuance of building permits 76. Condition No. 200 - (Code Requirements). In partial satisfaction of Condition No. 200 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer agrees to be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 77. Condition No. 202 (Code Requirements). In partial satisfaction of Condition No. 202 of the Resolution, Developer 3O agrees to comply with Council Policy No. 522-02 regarding maintenance of natural channels within open spaces. 78. Condition No. 203 (Code Requirements). In partial satisfaction of Condition No. 203 of the Resolution, Developer agrees that all proposed development should be consistent with the Otay Ranch Village Eleven SPA Planned Community District Regulations. 79. Condition No. 204 (Code Requirements). In partial satisfaction of Condition No. 204 of the Resolution, Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04) , public facilities finance plan implementation (19.09.090) , and public facilities finance plan amendment procedures. 80. Condition No. 205 - (Code Requirements). In partial satisfaction of Condition No. 205 of the Resolution, Developer acknowledges that the City amending its Growth Management Ordinance to add Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Developer acknowledges and agrees that said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the Developer hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 81. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Condition Nos. 1-6, 8- 19, 21-24, 27, 32, 35, 36, 40, 43, 45, 48, 49, 50, 51, 55, 56, 57, 58, 59, 60, 63, 69, 78, 85, 86, 96, 109, 114, 115, 116, 118- 121, 124, 125, 128, 130, 131, 140, 141, 142, 150, 151, 155, 164, 172, 174 177, 179, 180, 183, 184, 185, 189, 192, 193, 195, 196- 200, 202-205 of Resolution 2001-364. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of subsequent final maps for the Project, as may be appropriate. 82. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2001-364 and shall remain in compliance with and implement the terms, conditions and provisions therein. 31 /2 83. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Pinal Map. 84. Building Permits. Developer and Guest Builders understand and agree that the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 85. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Engineering DEVELOPER: Brookfield Shea Otay, LLC 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014 Attn: John Norman, Vice President Tel: (858) 481-8500 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. 32 c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will 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. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] 33 [PAGE ONE OF TWO SIGNATURE PAGES TO THE SUPPLEF~ENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, CHULA VISTA TRACT NO. 01-11] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA Mayor Attest: Susan Bigelow City Clerk Approved as to form: John M. Kaheny City Attorney [NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES] 34 [PAGE TWO OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY P-A-NCH VILLAGE ELEVEN, CHULA VISTA TRACT NO. 01-11] DEVELOPERS/OWNERS: BROOKFIELD SHEA OTAY, LLC, a California Limited Liability Company By: Brookfield Otay LLC, a Dela~r~Limi~ed~iability Company, Member By: ~_~\ r{,[] ,[ /l ?~--~- V~ By: ~~~/ ~ NameV~2 ~~ Name: ~ ~/~ By: Shea Otay Village 11, a California Limited Liability Company, Member By: Shea Homes Limited Partnership, a California Limited Partnership, its Sole Member By: J.F. Shea Company INC., a Nevada Corporation, its General Partmer ~ (Attach Notary Acknowledgment) 35 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California ) County of ~l~l~J D/EJ~O / ss. personally appeared ,~ ~. V~ ~¢ ~1 8~ perSonally to me known roved to me on the basis of satisfacto~ evidence to be the person(s) whose name(s) is/am subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal OPTIONAL Though he nformation below is not required by la~4 it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: .~,~u,~p~-*r~ ~j('/.,//cj ~}//,//~.~/o/~/~)y/~/~ '~'~" Document Date: Number of Pages: ~}~'~ Signer(s) Other Than Named Above: ~J~/~ F/~-'~) ~)~'~ ~'~ capacity(les) Claimed by Signer signer's Name: I~ Individual Top of thumb here [] Corporate Officer -- Title(s): [] Partner -- i~ Limited [] General L) Attorney-in-Fact IJ Trustee [] Guardian or Conservator Ll Other: Signer Is Representing: 1999 Nelional Nolary ASSOcialion · 9350 De $0tr) Ave, P O 8ox 2402. Chatsworth, CA 9~ 313-2402 · ~ naliOnalnotary ofg Prod No 5907 Reorder: Call Toll-Free 1-800.876.8827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ SS. County of San Diego On February 7, 2003, before me, Gladys M. Eddy-Lee, Notary Public, personally appeared John W. Norman and E. Dale Gleed, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, _ executed the instrument. {~11~ ~,e/c,~". '~'.~c~u~m~4, ~,o~i WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information be/ow is not required by/aw, it may preve valuable to persons relying on the document and could prevent fraudulent removal and reattachment 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: Capacities Claimed by Signers RJghtThumbprint of Signer Signers' Names: Top of ~humb here [] Individual U Corporate Officers -Vice Presidents [3 Partner--[] Limited [] General [~ Attorney in Fact U Trustee [] Guardian or Conservator [~ Other: Signers are representing EXHIBIT "A" PROPERTY DESCRIPTION Lots 1 through 9 together with Lots A through J of Chula Vista Tract NO. 01-11, Otay Ranch Village 11 "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. Field in the Office of the County Recorder of San Diego County 'on , 2003 as File No. of Official Records. 36 EXHIBIT "B" LIST OF SECURITIES CV WO No Description Bond $ Bonding Company Name Bond (Drawing #) number OR-604C Eastlake Pkwy Improvement, $761,900 American Casualty Company 58606844 (02083-01 to I l ) fi.om Olympic Pkwy to Kes~-el of Reading, Pennsylvania Falls Road OR-605C Hunte Pkwy, fi.om Olympic $922,400 American Casualty Company 58606845 (02143-01 to 13) Pkwy to Evening Star Street of Reading, Pennsylvania OR-6031 Backbone hnprovemeots within $o,_40,000~9 American Casualty Company 58606846 (02082-01 to 24) Phase l of Reading, Pennsylvania OR-604C Landscape & Irrigation for OR $ 314,281.82 St. Paul Fire & Marble SX0444 (02109-01 lo 18) Village I1 Phase I Eastlake Pkwv Insurance Company OR-605C Landscape & Irrigation for OR $ ~ ,691.45 St. Paul Fire & Marine SX0453 (02107-01 to 18) Village 11 Phase I Hunte Pkwy Insurance Company OR-6031 Landscape & Irrigation for OR $1,428,371.16 St. Paul Fire & Marine SX0452 (02108-01 to 45) Village I I Phase I Backbone Insurance Company hnp. OR-603G Landscape & Irrigation for OR $ 561,725.89 St. Paul Fire & Marine SX0449 (02106-01 to 60) Village 11 Phase I Private Slopes Insurance Company OR-603G Landscape & Irrigation fbr OR $ 1,872,425.64 St. Paul Fire & Marine SX045 I (02106-01 to 60) Village I I Phase I HOA Slopes Insurance Company OR-603G Landscape & hTigation fbr~OR $ 209, 189.70 St. Paul Fire & Marine SX0450 (02106-01 to 60) Village I 1 Phase I Park Site P-I Insurance Company Slopes OR-603-G Landscape & Irrigation for OR $ 1,548,788.42 St. Paul Fire & Marine SX0448 (02106-01 to 60) Village I I Phase I Temporary Insurance Company Slopes OR-603G I~andscape & Irrigation for OR $ 242;245.11 St. Paul Fire & Marine SX0447 (02106-01 to 60) Village 11 Phase I Water Quality Insurance Company Basins OR-603G Landscape & h-rigation ~br OR $1,480,688.47 St. Paul Fire & Marine SX0446 (02106-01 to 60) Village 11 Phase I CFD Slopes Insurance Company OR-603G Landscape & Irrigatioo for OR $ 647,443.50 St. Paul Fire & Marine SX0445 (02106-01 to 60) Village 1 l Phase I CFD Preserve Insurance Company Slopes 37 /2-95' RESOLUTION NO.2003- RESOLUTION OF THE CITY COUNCIL OF THE CiTY OF CHULA VISTA APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11 "A" MAP NO. 1, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSiBiLITIES FOR MAINTENANCE OF PRIVATE LANDSCAPING WITHIN PUBLIC RIGHT-OF- WAY, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the Grant of Easements and Maintenance Agreement for Otay Ranch Village 11 "A" Map No. 1 for the grant of easements and maintenance agreement sets forth the developer's obligation to maintain landscaping in the public right of way; and WHEREAS, the obligation will be assigned to the homeowner's association (HOA) after the landscaping has been established and turned over to the HOA to maintain; and WHEREAS, further agreements will be brought before council with each subsequent map for HOA maintained public property within the subdivision boundary. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Grm~t of Easements and Maintenance Agreement for the grant of easements and maintenance for Chula Vista Tract No. 01-11, Otay Ranch, Village 11 "A" Map No. 1, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on behalf of the City of Chula Vista. Presented by Approved as to form by Clil'ford T. Swanson JohnS¢(. ~at~eny Director of Engineering 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 City Attorney Dated: 2/12/03 GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11 "A" MAP NO. 1 ATTACHMENT RECORDING REQUrESTED BY ANT) WHEN RECORDED RETURN TO: Ci~, Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (~ox~ s~'^ce FOR ~CO}~DER'S usE) GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 0141 (DEDICATED EASEMENTS) This GRANrr OF EASEMENTS, LICENSE AND IVL~dNTENANCE AGREEMENT ("A~eement") is made as of this __ day of ,200_, by and between the CITY OF CHU~.~_ VISTA, a municipal corporation ("City"), and BROOKFIELD St-lEA OTAY LLC, a California limited liability company ("BSO, LLC"). RECITALS A. This A~eement concerns and affects certain improvements within portions of the real prop erty located in Chula Vista, California, more particularly described in Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development project commonly known as Winding Walk Planned Development (and als0.referred to as "Otay Ranch Village 11"), Chula Vista Tract No. 01-11, being the subject of the City Council Resolution No. 2001-364 (the "City Resolution"). For purposes of this Agreement, the term "Project" shall refer to the overall Winding Walk Planned Development project, including, but not limited to the "Property." B. BSO, LLC is the Declarant under that certain Master Declaration of Restrictions For Winding Walk filed or to be filed for record in the Official Records of San Diego County, California (the "Master Declaration"). The Master Declaration provides for WINDING WALK MASTER ASS OCIATION, a California Nonprofit Mutual Benefit Corporation ("MHOA") to maintain certain areas in the Project. Furthermore, one or more sub-associations may be formed ("SHOA") for a particular proj ect(s) within Winding Walk Planned Development, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by the certain final map(s) (the "Final Maps") described on Exhibit "A" attached hereto and referenced in the title to this Agreement. D. In order for BSO, LLC to obtain the Final Maps and for the City to have assurance that the maintenance of certain areas within the Project would be provided for, the City and BSO, LLC entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which BSO, LLC agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping and drainage improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The Citydesires to grant to BSO, LLC easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations of BSO, LLC as set forth in Supplemental Subdivision Improvement Agreements, adopted pursuant to the City Resolution. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements and License. The Cityhereby grants to BSO, LLC and its agents, successors and assigns, the following easements over the MHOA Maintained Public Areas: Non- exclusive easements and rights-of-way over and across all Parcels described on Exhibit "A" for the purpose of maintaining, repairing and replacing the following: (A) The landscaping within medians and parkways in Exploration Falls Drive, Winding Star Street and Windingwalk Street as shown and described on Exhibit "B" attached hereto; and (B) The landscaping within the parkways of additional roads as shown and described on Exhibit "B" attached hereto; These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 13(f) below. 2. Maintenance Responsibilities. (a) BSO, LLC to Initially Maintain. BSO, LLC hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MHOA Maintained Public Areas which are described on Exhibit 'C' attached hereto, at a level equal to or better than the level of maintenance performed by the City or imposed by the City on other similar public areas. For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair and replacement obligations described herein and on Exhibit 'C' hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of City. (b) Transfer to MHOA. Upon BSO, LLC's transfer of maintenance obligations to the MHOA, (i) the MHOA shall become obligated to perform the obligations so transferred, and (ii) subject to the City determining that the requirements of Paragraph 3 below have been satisfied, BSO, LLC shall be released fi:om such obligation. Transfer of maintenance obligations to the MHOA may be phased (that is, there may be multiple transfers). (c) Transfer By MHOA. The MHOA shall have the right to transfer Maintenance obligations to a sub-association ("SHOA') or to the owner of an apamment project ("Transferee"). Upon the MHOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the MHOA shall be released from the obligations so transferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, BSO, LLC does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assignment by BSO, LLC and Release of BSO, LLC (a) Assignment. Upon BSO, LLC's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOA shall perform the Maintenance obligations either itself or by contractors. Such transfer .will release BSO, LLC from its obligations only if all of the following occur: (i) MHOA Accepts Oblieation. The MHOA has unconditionally accepted and assumed all ofBSO, LLC's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations ofBSO, LLC under this Agreement. The assignment shall also have been approved by the appropriate governing body o fthe MHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) MHOA's Master Declaration. The City has reviewed and approved the MHOA's recorded Master Declaration to confirm that said document contains appropriate maintenance, indemnity and insurance provisions. The City hereby acknowledges that it has so approved the Master Declaration. This condition "(ii)" will apply to any further amendments which require City's consent pursuant to provisions of the Master Declaration or which would be contrary to the terms of this Agreement. (iii) MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all of B SO, LLC's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master Association Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property~damage arising out ora single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of"A, Class V" or better with no modified occurrences and as admitted byBest's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commemially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should htigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." This Section 5.1(a) may not be amended without the written consent of the City Planning Director or City Attorney. The MHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When ail conditions precedent in Paragraph 3(a) are fulfilled, BSO, LLC shall be released from its obligations under this Agreement, including its security and insurance requirements. BSO, LLC acknowledges that it has a contractual obligation to perform the terms and conditions of this Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, BSO, LLC shall give a notice to the City ofBSO, LLC's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assignment by MHOA and Release of MItOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MHOA from its obligations only if all of the following occur: (i) Transferee Accepts Obligation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant nmning with the land, and the assignee expressly assumes the obligations of the MHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration of Restrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liabilityinsurance wkich meets the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide /2 the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released fi.om its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice to the City of MHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. BSO. LLC's Insurance. Until such time as the MHOA has obtained the general liability insurance required by Section 5.1 (a) of the Master Declaration, BSO, LLC hereby agrees to procure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than One Million Dollars ($1,000,000) combined single limit, at its sole cost and expense. 6. Indemnity. BSO, LLC hereby indemnifies the City as set forth in Section 6.3 of the Master Declaration, which reads as follows: "6.3 Indemnity. The Declarant and Master Association, respectively, shall indemnify and hold the City, its officers, agents and employees harmless fi.om any liability, cost or expense, including reasonably incurred attorneys' fees, which result fi.om the Declarant's or the Master Association's respective failure to comply with the requirements of the Section above entitled "Continuing Obligation To Maintain Certain Public Areas". Neither the Declarant nor the Master Association shall have any liability under this Section by reason of(i) the other party's failure to maintain or (ii) any Transferee's failure to maintain. It is specifically intended that the City shall have the right to enforce this Section. This Section maynot be amended without the written consent of the City Planning Director or City Attorney." 7. Indemnity If Transferee. The document whereby the MHOA transfers a Maintenance obligation to an SHOA or apartment owner shall be signed by both the MHOA and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: Indemnity. The [Transferee's name] shall indemnify and hold the City, its officers, agents and employees, harmless fi.om any liability, cost or expense, including reasonably incurred attorneys' fees, which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Planning Director or City Attorney. 8. Agreement Applicable to Subsequent Owners. (a) Agreement Binding Upon Any Successive Parties. This Agreement shall be binding upon BSO, LLC and any successive Declarant under the Master Declaration. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. (b) Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 9. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. 10. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 11. Counterparts. This Agreement maybe executed in anynumber of counterparts, each of which shall be original and all of which shall constitute one and the same document. 12. Recording. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. 13. Miscellaneous Provisions. (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public Works/Engineering Division 276 Fourth Avenue ChulaVista, CA 91910 Attn: City Engineer If To BSO, LLC: BROOKF1ELD SHEA OTAY LLC c/o Brookfield Otay LLC 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014 Attn: Mr. John Norman With a Copy To: Shea Otay Village 11 LLC 10721 Treena Street, Suite 200 San Diego, CA 92131 Attn: Ms. Marcia Goodman (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any.of its terms. (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In the performance of its obligations under this Agreement, BSO, LLC, its agents and employees, shall comply with any and all applicable federal, state and local roles, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. 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 and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted tiffs Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. CITY OF CHULA VISTA, a municipal corporation By: Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: By: City Attorney BROOKF~LD SHEA OTAY LLC, a California limited liability company By Brookfield Otay LLC, a Delaware limited liability company, Member By Its By Its By Shea Otay Village 11 LLC, a California limited liability company, Member By. Its STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) On ,200 , before me, Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) On ,200 , before me, Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) /2-10Z EXHIBIT "A" Legal Description EXHIBIT "A" LEGAL DESCRIPTION PARCEL A: PORTIONS OF EVENING STAR STREET AS DEDICATED TO PUBLIC USE ON CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 ~A" MAP NO. 1, ACCORDING TO MAP THEREOF NO. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON ,2003 BEING A SUBDIVISION OF A PORTION OF LOTS 1, 9, 10, 11, AND 12 OF THE OTAY RANCHO, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO 862, FILED IN THE OFFICE OF SAID COUNTY RECORDER, ON FEBRUARY 7, 1900. PARCEL A-1; PORTIONS OF HIDDEN PATH DRIVE AS DEDICATED TO PUBLIC USE ON CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO. 1, ACCORDING TO MAP THEREOF NO. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON ,2003 BEING A SUBDIVISION OF A PORTION OF LOTS 1, 9, 10, 11, AND 12 OF SAID MAP NO. 862. PARCEL A-2: PORTIONS OF WINDINGWALK STREET AS DEDICATED TO PUBLIC USE ON CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO. 1, ACCORDING TO MAP THEREOF NO. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON ,2003 BEING A SUBDIVISION OF A PORTION OF LOTS 1, 9, 10, 11, AND 12 OF SAID MAP NO. 862. PARCEL A-3: PORTIONS OF EXPLORATION FALLS DRIVE AS DEDICATED TO PUBLIC USE ON CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO. 1, ACCORDING TO MAP THEREOF NO. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON ,2003 BEING A SUBDIVISION OF A PORTION OF LOTS 1, 9, 10, 11, AND 12 OF SAID MAP NO. 862. PAGE 1 OF 2 :1, M;~2366~03~J-EGAL DE$CRIPTIoN$~A17 ESMT & LiC AGREE.doc / ~ --/ J ~ WO 2356-03 1~J12/02 PARCEL A.4: PORTIONS OF KESTREL FALLS ROAD AS DEDICATED TO PUBLIC USE ON CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 "A" MAP NO. 1, ACCORDING TO MAP THEREOF NO. FILED iN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON ~ ,2003 BEING A SUBDIVISION OF A PORTION OF LOTS 1,9, 10, 11, AND 12 OF SAID MAP NO. 862_. DAVID W. AMBLER L.S. 7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 2 OF2 :il M:~2366~03~LEGAL DESCRIPTIONS~A17 ESMT & LIC AGREE.doc EXHIBIT "B" Plats Showing Public Areas To Be Privately Maintained DE6-12-2~02 14:54 DEC-12-2002 14:55 HUNSRKER SH£ET / ~. EXHIBIT "C" Maintenance Responsibilities City of Chula Vista Area HOA Maintenance Maintenance Median and parkways within Landscaping in the medians Maintenance of curb, gutter, those portions of those public and parkways including sidewalks and pavement. road shown on Exhibit "B" irrigation, trimming and pruning of trees, and maintenance and irrigation of turf areas. RESOLUTION NO.2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SLOPE AND DRAINAGE MAiNTENANCE AGREEMENT FOR EASTLAKE PARKWAY BETWEEN STATIONS 11+76.43 AND 22+37.30 WITH BROOKFIELD SHEA OTAY LLC, A CALIFORNIA LIMITED LIABILITY COMPANY ("DEVELOPER") ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAiNTENANCE OF SLOPES AND DRAINAGE WITHIN PUBLIC RIGHT-OF-WAY AND CITY EASEMENTS AND AUTHORIZING THE MAYOR TO EXECUTE SAD AGREEMENT WHEREAS, the Slope and Drainage Maintenance Agreement for EastLake Parkway sets forth the developer's obligation to maintain the slopes and drainage facilities within City's easements until a permanent maintenance district or another alternative funding mechanism is established by the underlying the fee owner, McMillin Company, and approved by the City. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Slope and Drainage Grant of Easements and Maintenance Agreement for EastLake Parkway between Stations 11+76.43 and 22+37.30 with Brookfield Shea Otay LLC, a California Limited Liability Company establishing specific obligations and responsibilities for maintenance of slopes and drainage within public right-of-way and City easements, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on behalf of the City of Chula Vista. Presented by Approved as to form by Clifford T. Swanson J~hr~. I~aheny Director of Engineering City Attorney Ix- !/ce 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 ~(/J(~I. Kaheny - C/ City Attorney Dated: 2/12/03 SLOPE AND DRAINAGE MAINTENANCE AGREEMENT FOR EASTLAKE PARKWAY WITH BROOKFIELD SHEA OTAY LLC ATTACHMENT Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 File No:OR-603F Slope & Drainage Maintenance Agreement For Eastlake Parkway Between Stations 11+76.43 and 22+37.30 This agreement ("Agreement") is entered into 2003 and effective as of the date last executed by the parties, by and between the City of Chula Vista, a California Municipal Corporation ("City"), Breokfield Shea Otay LLC, a California Limited hiability Company ("Developer"), and HcMillin Companies, a Delaware Limited Liability Company ("Owner") with reference te the facts set forth below, which recitals constitute a part of the Agreement: RECITALS WHEREAS, this Agreement concerns and affects certain real property located in Chula Vista, California, as more particularly described in Exhibit "A" (property Description) and as shown en Exhibit "A 1" attached hereto and incorporated herein and commonly known as Village 12 Eastern Urban Center ("The Project") . WHEREAS, th~ s Agreement benefits certain real. property located in Chula Vista, California and as shown on Exhibit attached hereto and incorporated herein and commonly known as Otay Ranch Village 11 ("Developer's Project") . WHEREAS, pursuant te those certain instruments recorded in the Official Records ef the San Diego County Recorder's Office, McHillin Companies did dedicate easements for slope and drainage purposes to City (collectively, "Dedicated Easements"). WHEREAS, the City desires to grant to Breokfield Shea Otay, LLC a right of entry for slope and drainage maintenance purposes upon, ever, and across those said Dedicated Easements. Page 1 WHEREAS, the City desires to establish an interim funding mechanism for maintaining certain slope and drainage improvements to be constructed along the west side of Eastlake Parkway in conformance with Chula Vista Drawings Nos. 02083-04 and 02083-06 until a permanent maintenance district or another alternative funding mechanism is approved by the City. WHEREAS, all pa~ties hereby agree to enter into an agreement, wherein Developer agrees to provide for the maintenance cost of said slope and drainage improvements until the City approves permanent maintenance district or another alternative funding mechanism established by the Owner. NOW THEREFORE BE IT RESOLVED that the Parties agree as follows: 1. Defined Terms. As used herein, the following terms shall mean: 1.1 "Community Facility District" or "CFD" means a special district established by the City pursuant to the terms and provisions ef the "Melle-Reos Community Facilities Act of 1982". 1.2 "Maintain" or "Maintenance" means to furnish, or the furnishing of, services and materials for the ordinary and usual maintenance of the Slope and Drainage Improvements as defined herein below, in a manner acceptable to the City Engineer. 1.3 "Fiscal Year" means the periods starting July 1st and ending on the following June 30th. 1.4 "Slope and Drainage Improvements" means those slope and drainage improvements to be constructed along the west side of Eastlake Parkway between stations 11+76.43 and 22+37.30 in conformance with Chula Vista Drawing Nos 02083-04 & 02083-06. 2. Slope and Drainage Improvements Maintenance Obligations. 2.1 Developer understands and agrees that all cost associated with the maintenance of the Slope and Drainage Improvements shall be paid by the Developer, and that in no case will the City, or any department, hoard, or officer thereof or Owner be liable for any portion of the Maintenance Cost as defined herein below. 2.2 Developer hereby agrees that Developer's obligations and right ef entry hereunder shall terminate once sufficient funding for maintaining the Slope and Drainage Improvements, as deteumined by the City Engineer in his/her Page 2 IZ-/z/ sole discretion, is available from an approved CFD or alternative permanent financing mechanism approved by the City. 2.3 Developer has prepared an estimate of the annual cost for maintaining the Slope and Drainage Improvements, which is attached as Exhibit "C" ("Maintenance Cost"). As set forth below, Developer shall provide the City with cash deposit equal to the Maintenance Cost to cover the cost of maintaining the Slope and Drainage Improvements during the subsequent Fiscal Year. 3. Security for Slope and Drainage Improvements Maintenance Obligations. 3.1 Cash Deposit. Prior to the City's approval of the first Final Hap for the Developer's project, Developer shall provide City with a cash deposit for Developer's annual obligation to maintain the Slope and Drainage Improvements under this Agreement, ("Security Deposit") in the sums set forth in Exhibit "B". City shall held the Security Deposit for the duration of Developer's obligations hereunder, and expend such deposit solely for purposes of said performance obligations in the event of Developer's default in the performance ef such obligations. Should the City expend the cash deposit due te Developer's default ef its performance obligations, Developer agrees to redeposit the equivalent sum of money needed to equal the amount ef the deposit required by this Agreement, as set forth in Exhibit "B", within 30 days ef the City's request for such deposit. All interest earnings on the Security Deposit shall be retained by the City during this period. Any unexpended amount ef the Security Deposit, including any interest earned, shall be released and remitted to Developer upon the termination of its obligations as set forth in this Agreement. 4. Community Facility District Formation. 4.1 Owner hereby agrees to process and obtain the approval of the City Council prier to or concurrent with the first final map for the Project, of the establishment ef a CFD or any ether financing mechanism acceptable to the City for providing permanent funding for the maintenance of the Slope and Drainage Improvements if said improvements still remain after the Eastern Urban Center has developed. 4.2 In the event said CFD is not formed by the first final map for The Project. Developer hereby agrees to work in good faith with the City te establish an alternative Page 3 tZ-lZ, z. financing vehicle acceptable to the City prior te approval ef last final map ef phase Z for Developer's Project. Developer further agrees that the City Engineer may extend the Formation Time for a period net te exceed sixty 60 days, if the City Engineer determines, at his/her sole discretion, that Developer is diligently working towards the establishment ef said alternative financing mechanism. 5. Noncompliance of Developer's and Owner's Obligations 5.1 Developer and Owners understand and agree that the performances of Developer's and Owner's obligations hereunder are required for the health and safety of the residents of the City of Chula Vista. Therefore, Developer and Owner agree that the City shall have the absolute and unfettered right to withhold the issuance ef any grant ef approval or permit for any entitlements (including but not limited te SPA plans, 'Fentative Haps, Site Plans, Final Haps, grading/construction permits, and building permits) for the Project, if the Developer and Owner are determined by the City net to be in compliance with the terms ef this Agreement. 5.2 If Developer arid Owne~ are determined by the City net te be in compliance with any term of this Agreement, the City shall notify Developer and Owne~ ef their noncompliance and provide them with 30 days te cure said noncompliance. The City Engineer in his/her sole discretion may extend the time to cure such noncompliance if the City Engineer determines that they are making a good faith and diligent effort to cure such noncompliance. 6. Right of Entry Owner and City hereby grant Developer permission to enter upon the property described in Exhibits "A" and "A-i" for the purposes of providing Slope and Drainage Haintenance pursuant te the terms ef this Agreement. 7. Successors 7.1 Agreement ~inding Upon Successors. This Agreement shall be binding upon and ~nure to the benefit of the s~ccessors, assigns and interests of the parties as to any or all ef the real property, described herein on Exhibit "A", until released by the mutual consent ef the parties or as otherwise provided in the Agreement. 7.2 Agreement Runs with the Land. The burden ef the covenants contained in this Agreement ("Burden") is for the benefit ef the Project and the City, its successors and assigns and any successor in interest thereto. City is Page 4 deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. 8. Miscellaneous Provisions. 8.1 Attorneys' Fees. In the event that either Party commences litigation for a specific performance or damages for breach of this Agreement, the prevailing party shall be entitled tea judgment against the other for an amount equal to reasonable attorneys' fees and court costs incurred. The prevailing party shall be deemed to be the party who is awarded substantially the relief sought 8.2 Indemnification. Developer further understands and agrees that City and Owner, as indemnitee, or any officers, agents or employee thereof, shall net be liable for any injury to person er property occasioned by reason ef the acts or emissions of Developer, its agents er employees, er indemnitees, related te the Developer's obligations described herein. Developer further agrees te protect and hold the City and Owner, its officers and employees, harmless from any and all claims, demands, causes ef action, liability or less of any sort, because of or arising out of acts or omissions of Developer, its agents or employees, or indemnitee, related te the Developer's obligations described herein. The approved improvement securities referred to above shall not cover the provisions of this paragraph. The provisions ef this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect regardless ef the City's acceptance of any improvements within the areas as described herein 8.3 Entire Agreement. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relahing to the subject matter hereof and any and all other prior or contemporaneous oral or written agreements are hereby superseded. This Agreement may be amended, but only pursuant to a written amendment properly authorized and executed by all parties hereto. Page 5 8.4 Compliance with Laws. In the performance of its obligations under this agreement Developer shall comply with any and all applicable federal, state and local laws, regulations, policies, permits and approvals. 8.5 Recitals and Exhibits. Recitals set forth above and all attached Exhibits referred to herein are hereby incorporated herein by this reference. 8.6 Term. This agreement shall remain in effect for so long as either party has executory obligaEiens hereunder. 8.7 Recording. The parties hereto shall cause this Agreement to be recorded in the Official Records ef the County of San Diego. 8.8 Assignment. The obligations ef the Developer under this Agreement shall not be assigned in whole er in part, without the express written consent of the City. 8.9 Authority ef Signatories. Each signatory and party hereto hereby warrants and represents te the ether party that it has legal authority and capacity and direction from its principal te enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable it Eo enter into this Agreement. 8.10 Termination. Upon the termination ef this Agreement pursuant to Section 2 and 8.6 hereof, at the request of Developer or Owner or any successor in interest who owns any portion ef the real property encumbered by this Agreement, the City shall execute an instrument in recerdable form to be prepared by the requesting party and approved by the City Attorney which evidences the termination ef this Agreement and confirms the release ef the real property from the encumbrance of this Agreemenz. 8.].1 Force Hajeure Except with respect to any obligation to pay money er post securities when due, ne party hereto shall be liable for any delay er failure te perform this agreement caused by Force Hajeure. As ~sed herein, the term Force Hajeure shall mean acts of Ged; strikes; walkouts; labor disputes or disturbances; war; blockage; insurrection; riot; earthquakes; typhoons; hurricanes; floods; fires; explosions; or other similar circumstances beyond the reasonable control of such party. In the event ef Force Hajeure likely to cause any such delay or failure, the parties suffering such Force Hajeure shall give notice te the other party hereto, stating the particulars of such Force Hajeure and shall to the extent it is capable ef doing so, remove such cause with all reasonable dispatch, except that, Page 6 no party shall be required to settle any strike, walkout, labor dispute or disturbance by acceding to the demands of the opposing party when such course is deemed inadvisable by such party. [NEXT PAGE IS SIGNATURE PAGE Page 7 (Signature Page One of Two Pages) (Slope & Drainage Maintenance Agreement For Eastlake Parkway Between Stations 11+76.43 and 22+37.30) IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day and year first above written. CITY OF CHULA VISTA A Municipal Corporation By: Mayor Steve Padia Attest: Susan Bigelow, City Clerk Approved as to form: dohn H. Kaheny, City Attorney Dated: Page 8 z7 (Signature Page Two of Two Pages) (Slope & Drainage Maintenance Agreement For Eastlake Parkway Between Stations 11+76.43 and 22+37.30) ("DEVELOPER") BROOKFIELD SHEA OTAY LLC, a California Limited Liability Company By: Brookfield Otay LLC, a Delaware Limited Liability Company, Member BY: BY: NAME: NAME: TITLE TITLE: By: Shea Otay Village 11, a California Limited Liability Company, Member By: Shea Homes Limited Partnership, a California Limited Partnership, its Sole Member By: J.F. Shea Company INC., a Nevada Corporation, its General Partner BY: BY: NAME: NAME: TITLE TITLE: ("Owner") MCMILLIN COMPANIES, LLC A Delaware Limited Liability Company BY: BY: NAME: NAME: TITLE TITLE: Page 9 LIST OF EXHIBITS (Slope & Drainage Maintenance Agreement For Eastlake Parkway Between Stations 11+76.43 and 22+37.30) Exhibit A .... Legal Description Exhibit A 1 ---Location Plat for Village 12 ("The Project") Exhibit B ..... Location Plat for Village ll("Developer's Project") Exhibit C ...... Maintenance Cost Page 10 EXHIBIT "A" PROPERTY DESCRIPTION (Slope & Drainage Maintenance Agreement For Eastlake Parkway Between Stations 11+76.43 and 22+37.30} (To be provided by the Engineer of Work) Page 11 EXHIBIT ~A-i" LOCATION PLAT FOR VILLAGE 12 ("THE PROJECT") (Slope & Drainage Maintenance Agreement For Eastlake Parkway Between Stations 11+76.43 and 22+37.30) Page 12 /2..- EXHIBIT ~B" LOCATION PLAT FOR VILLAGE 11 ("DEVELOPER'S PROJECT") (Slope & Drainage Haintenance Agreement For Eastlake Parkway Between Stations 11+76.43 and 22+37.30) Page 13 EXHIBIT ~C" Maintenance Cost <Slope & Drainage Maintenance Agreement For Eastlake Parkway Between Stations 11+76.43 and 22+37.30) Cost for maintenace of the slope improvements Slope area to be maintened: 7],400 sq.ft. Cost per sq.ft. : $0.04/sq.ft/yr 71,400 sq.ft. X $0.04/sq.ft/yr $2,856/yr 10% contingency = $286/yr Total Cost $3,142/yr Cost for maintenance of the drainage facilities 3 maintenace trips a year 2 days (16 hrs) to complete the work @ $60.00/yr 3trips/yr X 16hfs X $60.00/hr $2,880 10% contingency $288 Total Cost $3,168/yr Total cost for maintenace of Slope & Drianage Improvements $3,142 + $3,168 $6,310/yr Assume maintenance for 3 yrs $18,930 CASH BOND REQUESTED TO FULFILL THIS OBLIGATION IS $18,900 J:\Engineer~/LANDDEV~Prejects~Otay Ranch Village ll~FIN~ MAP~Eastlake Pkwy Slope maint agmt.DOC Page 14 COUNCIL AGENDA STATEMENT Item {.~ ' Meeting Date 2/18/03 ITEM TITLE: Public Hearing Consideration of establishing Utility Undergrounding District No. 137 along "J" Street from Broadway to Hilltop Drive Resolution Establishing Utility Undergrounding District No. 137 along "J" Street from Broadway to Hilltop Drive and authorizing the expenditure of Utility Allocation Funds to subsidize private service lateral conversion SUBMITTED BY: Dire ctor of Public Work REVIEWED BY: CityManager~~~ x (4/Sths Vote: Yes. No. XJ On January 21, 2003, the City Council approvefl Resolution No. 2003-020 and ordered a Public Hearing to be held on February 18, 2003 to d'er6rmine whether the public health, safety or general welfare requires the formation of a utility undergrounding district along "J" Street from Broadway to Hilltop Drive (See Exhibit A). The purpose of forming the district is to require the utility companies to underground all overhead lines and to remove all existing wooden utility poles within the proposed district. The proposed utility undergrounding district is about 4,000 feet long and is estimated to cost approximately $1,000,000. SDG&E's allocation funds (Rule 20-A) will be used to cover the cost of the project including reimbursements to affected property owners for their respective trenching cost. RECOMMENDATION: That Council: 1. Conduct a Public Hearing on the formation of Utility Underground District No. 137; 2. Approve a resolution forming the district and authorizing the use of approximately $1,000,000 in utility allocation funds to cover the cost of pole removal, undergrounding overhead facilities, and private property conversion reimbursements. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The Underground Utility Advisory Committee (UUAC), consisting of representatives of SDG&E, Pacific Bell (SBC), Cox Communications, Chula Vista Cable and the City, agreed to propose to the City Council the formation ora district for the conversion of overhead utilities to underground along Page 2, Item Meeting Date 2/18/03 "J' Street from Broadway to Hilltop Drive. The proposed utility undergrounding district along "J' Street is about 8,000 feet (1.50 miles) long from Broadway to Hilltop Drive (See Exhibit A). The estimated cost for undergrounding the utilities is $1,000,000. The Average Daily Traffic (ADT) count on "J" Street between Broadway to Hilltop Drive is approximately 13,248. Section 15.32.130 of the Chula Vista Municipal Code requires the City Council to set a public heating to determine whether the public health, safety, and general welfare requires the undergrounding of existing overhead utilities within designated areas of the City. The intent of the public heating is to give persons the opportunity to speak in favor of or against the formation of a proposed district to underground utilities. The formation of the district will require the utility companies to underground all overhead lines and other facilities, and to remove all existing wooden utility poles within the District. All property owners within the proposed district will also be required to convert their service connections to underground. The undergrounding of utilities will be coordinated with a proposed City of Chula Vista street light installation project. Said project, which will replace existing street lights on wooden poles with street lights on concrete poles, and the addition of street lights where applicable, is the responsibility of the City of Chula Vista. Construction for the street light design project is anticipated to begin shortly after the beginning of construction of SDG&E's undergrounding of electrical utilities within the street right-of-way. Staff recommends the formation of this conversion district along this section of"J" Street because: 1. "J" Street is a major west/east thoroughfare between the western and eastern portions of Chula Vista. The undergrounding o fexisting overhead utilities will contribute to the creation of an aesthetically pleasing major street. 2. This segment of "J" Street from Broadway to Hilltop Drive is classified in the General Plan's Cimulation Element as the following: a. Class 1 Collector street from Broadway to Fifth Avenue. b. Class 2 Collector street from Fifth Avenue to Hilltop Drive. 3. In addition to single family residential, the district fronts along a commercial site and Hilltop Elementary School. The conversion work by the property owners involves trenching, backfill and conduit installation from property line to point of connection. Chula Vista City Council PolicyNo. 585-1 establisheda mechanism that helps property owners with the cost of the conversion work from the distribution lines to the structure. Said policy provides for the reimbursement of property owners at a rate of $35 per lineal foot of trenching, which is normally sufficient to cover total costs. Exhibit B shows a reimbursement schedule listing reimbursement amount for all 1 I4 affected properties. The total reimbursement is approximately $210,000 and is included in the overall cost estimate orS 1,000,000. Page 3, Item Meeting Date 2/18/03 A public hearing notice has been mailed to all property owners and occupants of property (see Exhibit "C'), located within the boundaries of the proposed district. FISCAL IMPACT: The cost of pole removal, undergrounding overhead facilities and private property conversion reimbursements as outlined above is estimated to be approximately $1,000,000. SDG&E's allocation funds (Rule 20-A) will cover the estimated cost of the project. The estimated cost for street lights project associated with the undergrounding district is estimated to be approximately $100,000. City staff will be establishing a separate CIP project for the street light work to be done in FY 03/04. The $100,000 funding source is anticipated to come from Gas Tax. All staff costs associated with the formation of this district is not reimbursable from the allocation funds and, therefore, are borne by the General Fund. Attachment: Exhibit A Boundary Map Exhibit B - Reimbursement Schedule Exhibit C - Mailing List Exhibit D Council Agenda Statement (Intention to Create District) J:\Engineer~ADVPLAN\UUDIST\E J ST\UUD137 Public Hearing.lal.doc UUD 137 - "J" Street from Broadway to Hilltop Drive UNDERGROUNDING MAILING LIST EXHIBIT "C" AFFECTED PROPERTY OWNERS APN 157215oo~OO ::~] Owners's Name iAbare, John & Peterson, Debra ] Owners Address 153 i West J Street I city, state I~nh~a vi;t~ ca ~ Zip [91910 j UUD Street [~31 ! [We~t J Street I APN 15741403200 ~ Owners's Name [^g;na, Edward B & Cecile ~ Owners Address i85 West J Street i City, State VChui; Vista, CA Zip 191910 UODStreet ~ l lwes~i~el ! AP" L5732a6ogooI Owners's Name [^~v~rez, Jose l *~ Reiko X j Owners Address i165 West] Street I City, State Ichuia~ista, c^ ~ zip ;91910 ] UUD Street [!65 ~ ~ ]lWeSt J Street j Owners Address 138 ~ Streei ~ City, State :Chula Vist~ CA UUD Street 138 iJ S~cet I Friday, January 24, 2003 Page 1 of 29 /3 ~2Z AFFECTED PROPERTY OWNERS APN J~7323~3800 Owners's Name B[B[B araj as, Owners Address [375 J Street City, State IChuia Vista, CA Zip 91910 UUD Street ~7~ I IJ Street APN [573~o290oI Owners's Name B[Barbaros, ?etar Owners Address 235 West J Street City, State iChu]a vista, CX Zip ]919i0 ;'235 ~Vest J Street UUD Street , Il A.N 5721a02600 ii Owners's Name ~gan, Cesar M & ^iina Owners Address ~0~ Pifth Av~n~ city, state Ic~uia Vista, C^ Zip !91910 uuo Street I~02 Owners's Name Benitez, Jose A & Gomez, Owners Address [3~ J ~reet city, state !chUla Vi;ia, CA Zip :91910 UUD Street ;394 ]lEa~t J Street Friday, January 24, 2003 Page 2 of 29 AFFECTED PROPERTY OWNERS Owners's Name Bcmal, Arturo M & Sonia Owners Address ~240 West~ City, State ~Chu]; Vista, CA Zip ~1910 UUD Street APN i5733322500 Owners's Name iBillstrorn, Family Trust Owners Address [700 D~i Mar Avenu; City, State !chui; ~ista, ~A Zip 91910 UUD Street 700 De~Mar Avcnu~ APN [5732501500 Owners Addresa 1567 J St;c~t City, State UUD Street AP" :~73~00800~:] Owners's Name [Bonner, Thomas P & Mary O,~ners Addreas City, State Chula Vista, CA zip i91910 UUD Street [169 ; iWest J Street Friday, January 24, 2003 Page 3 of 29 AFFECTED PROPERTY OWNERS APN [~73372~00 ~ Owners's Name lBowman, Hah-el D Owners Address 73 Millan ~;urt City, State [~huia Vista, ~X UUD Street [70{) i Second APN 5721804900 Owners's Name 3rown, Family Trust Owners Address >.75 Rogan Road City, State 2hula Vista, CA uuD Street ][J sir;;; APN Owners's Name [carlson, Emilie B Trust Owners Address !266 West J City, State Chula Vista, ~A UUD Street ~266 IWest J Street APN i~7217~90~ ] Owners's Name iCarrera, Margaret S Owners Address [~i~ W~5 Stre~i City, State [Ch~l~ Vista, C^ UUD Street 715 ]West J Street Friday, January 24, 2003 Page 4 of 29 AFFECTED PROPERTY OWNERS AP" 15732600900l Owners's Name C~arlesl Jos~ A & Lou;des S Owners Addrses ~97 Del Mar Avenue City, State [Chula Vi~ia, UUO Street [697 el Mar Avenue AP. Owners's Name Chisholm, Letha H Trust Owners Address 1844 C~untru ~i~b Drive City, State iChula ~i;~a, CA UUOStreet 426 17 Stre;i Owners Address [179 West J ~i;eet City, State Chula Vista, CX Zip [9i'9i0 UUD Street (179~ I W~st i s~reet APN '574140~900 Owners's Name iCorbin, Henry & Laura L UUD Street 171 Friday, January 24, 2003 Page 5 of 29 AFFECTED PROPERTY OWNERS APN 5733522300 Owners's Name Croshier. Donald E & Ella M J Owners Address 702 Alpine Avenue City, State Chula Vista. CA ] Zip 91910 UUD Street !~02 ' ~ i !Alpine Avenue APN i5+~5~il7~ Owners's Name ID~g, Be & Doan, KhUyen rhi Owners Address L68 ! St~&t City, State I~h~i~ Vi~ia, ~X UUD Street [~ [J Street APN 1~7'~2330100 Owners's Name IDelam0m, Sergio & G~0r~ina ~ I Owners Address 446 West J Street City, State Chula Vista, CA Zip ]91910 U U D Street [456 IJ ~t;eet APN 155554o~9oo [ Owners's Name IDelmnoral Scrgi0 & ~e0rgina Owners Address 1446 ]~treet I City, State !Chula Vista. CA Zip :91910 UUD Street 1446 iJ Street Friday, January 24, 2003 Page 6 of 29 Owners's Name iDesmond, Scan S Owners Address 67 J Street City, State jehu a Vista, CA Zip [91910 _ APN 260,6oo Owners's Name rDesse, Maria ~ Owners Address 1271 West J Street City, State ~huia 'v'i~ta, CA UUD Street :271 West J Street APN ~57~600i0~ ' Owners's Name [Drewett~ Gera]di~ Trust owners Address !701 Alpine Avenue City, State iChula Zip UUD Street !70i I ~ p ne Av~nu~ Owners's Name [Duarte, Pedro owners Address 7170i r~el City, State IChula Vista, CA Zip i91910 ' UOStreet I Friday, January 24, 2003 Page 7 of 29 AFFECTED PROPERTY OWNERS APN 7573231240~ Owners's Name ~Escalante, Family trust Owners Address ~79 J Street City, State Chula Vista, CA Zip ~1910 UUD Street 379 J Street APN 5~2240~i~i Owners's Name Fairway Capital LLC Owners Address !13553 P0wa~ Road #10i City, State !Poway, CA zip 192064 uuo Street [~4 ]l~a~h ^venn~ Owners's Name [Fierro, R~bert Owners Address l i~ West ~ Street city, state I~1~ vi~t~ c^ z~. [~i91o UUD Street [1~ Iw¢~t J street Owners's Name Foley, Betty J 1994 Trust Owners Address 131 West J Street City, State Chula Vista, CA Zip 91910 UU D Street !l 31 West J Street Friday, January 24, 2003 Page 8 of 29 AFFECTED PROPERTY OWNERS APN :5733600200 ~ Ownum's Name Froede, Mary A Trusi Owners Address ~717111 Alpine Avenue City, State IChula Vista, CA [91910 ' Zip i UUD Street 711 [Alpine Ave~u~ APN 15733420200 I Owners's Name IGiu~mi, F~mily R;~oc~ble Tm;t Owners Address _[22~ West~Streei City, State ~Chula Vista, CA I Zip ~]0 UUD Street [~214 j[weSt J Sir;et APN 157218o1100 i Owners's Name !~landon, K~m R Owners Address 'P.O. Box 230101 City, State IEncinitas, cA Zip [~2023 UUD Street 155~ IJ St{cci Owners Address 175 West ~tree( City, State [Chula Vista, CA Zip 9l~i0 ' UUD Street [7~ !iWest j Siree Friday, January 24, 2003 Page 9 of 29 AFFECTED PROPERTY OWNERS APN 5721500800 Owners's Name Gonzalez, Luis Owners Address 523 West J Street City, State Chula Vista, CA Zip 91910 UUD Street ·323 ~West I Street APN 5721500700 Owners's Name IGonzalez, Susanna Owners Address /529 West J Street City, State Chula Vista, CA Zip 91910 UUD Street 529 West J Street APN 5741403300 Owners's Name Gonzalez-Ontiveros. Miriam Owners Address P.O. Box 8618 City, State ChuIa Vista. CA Zip 91912 UUD Street 89 J Street APN 5732501300 Owners's Name Green. Joycc E Owners Address 279 West J Street City, State Chula Vista_ CA Zip 91910 UUD Street 279 West J Street Friday, January 24, 2003 Page 10 of 29 AFFECTED PROPERTY OWNERS APN 5732902300 Owners's Name Gregon, Antonio & Juanita H Owners Address 1143 West J Street ~ I City, State Chula Vista, CA Zip 191910 UUD Street 143 West J Street APN 5733412100 ] Owners's Name Griffin. Serafina Owners Address 700 Twin Oaks Avenue City, State Chula Vist~ CA Zip 91910 UUD Street 700 Twin Oaks Avenue APN 5742810800 Owners's Name Hammond. Eugema J Owners Address 1341 Park Drive City, State Chula Vista_ CA Zip r91911 UUD Street 80 J Street APN 5741402500 Owners's Name Hastings, Kim & Rhonda Owners Address 51 J Streel City, State Chula Vista_ CA Zip 91910 U UD Street 51 .1 Street Friday, January 24, 2003 Page 11 of 29 AFFECTED PROPERTY OWNERS APN 157:21805500 Owners's Name IHemandez, Amador S & Allcia G Owners Address 520 ~ StreW? City, State [Ch~ia Qista, CA zip [91910 i uuD strsst 1520 !i~trec; A.. [~73~50!600 l owner's ~me !h¢~naez, M gu~ J Sr Owners Address [263 iStrcct Zip .9~0 ]~] UUD Street !263 ect Owner's Name I~iggin~g~h~ Th~ Jay O Trust ownem Address 535 West J Street zO 19~9~0 ] UUD Street ~5 I Iw*st J ~t;e~ APN [5732400500 ] Owners Address [3535 ~rst Aven~ ~ 10B Ci~, State ~:San Diego, CA zip [95i03 UUD Street 169o J Street Friday, January 24, 2003 Page 12 of 29 AFFECTED PROPERTY OWNERS APN ~741401100 Owners's Name ~Iorwath Family ~rusi Owners Address )827 Colonial Place City, State 5alinas, CA Zip 93907 UUD Street [9~ J Street APN ~7h8648°°I Owners's Name hutchens, Roy 0 & Evelyn Owners Address 1518 J Strcc~ City, State [~h;l; Vista, CA UUD Street [518 IJ Street APN Owners's Name Jacobsen Family Trust Owners Address I702 Elder ACenu~ City, State Chula Vista, CA Zip UUO Street 1702 [:Elder A~¢nu¢ APN $733~10100 Owners's Name IJimenez, Edward & Anne E OwneraAddrese 170' City, State Ich~la vista, CA Zip 91910 UUD Street !701 ISecond Avenue Friday, January 24, 2003 Page 13 of 29 AFFECTED PROPERTY OWNERS APN 15722402700 ] Owners'a Name [Johnson, Jen fer, John & ~h]riey Owners Address [~4d West J street ] City, State -Chula Vista, CA Zip [91910 446 West J Street APN 572 0 00 j Owners's Name Kamiura, Thomas]r Owners Address i552 J Street c,ty, State [Chu,~ 9*S~ C^ ~ I Zip !91910 UUO Street i552 J ~iree~ Owners's Name [Ku~hnir, Yaroslav 84 ~ M owners Address 709 Third Avenue ,::,ty, ~tate iCh~,a Vist~ CA UUD Street :701 I I*h!id~e~e APN 15742si~0 Owners's Name [Kushnir, Yaroslav & Suzzane M Owners Address 56 J stre~ City, State IChu~a Visim CA UUD Street !76 l iJ Sireet Friday, January 24, 2003 Page 14 of 29 AFFECTED PROPERTY OWNERS APN '5732800500 Owners's Name ~Lamarre, Fernand W & Dolores Owners Address ~185 WcstJ Street City, State ~C~ula Vista, CA Zip ,91910 UUD Street I~5 West J Street APN 5[5732801100 ~ Owners's Name Limperis. Lee & april Owners Address [159 West J Street City, State [Chula Vista, CA Zip 91910 U U D Street ,159 West J Stree~ APN 5~33602100 Owners's Name ~ockhart. Charles & Cremese. Hebert Owners Address 702 First Avenue City, State [ChulaVista. CA Zip 91910 UUD Street 702 First Avenue APN 5732902700 Owners's Name Lopez. Michael & John Owners Address 123 J Street City, State Chula VJst~ CA Zip 91910 UUD Street 123 j r,I Street Friday, January 24, 2003 Page 15 of 29 AFFECTED PROPERTY OWNERS APN [5721805900 Owners's Name L~Lopez, Myrna & Bariera, Yolancl~ Owners Address 1538 J ~treet City, State [Chula~isia, CA Zip i91910 UUD Street ][ [~38 APN Owners's Name LMa~vicz, Cha~ A Owners Address ]702 Elm Avenue City, State Ichuid ~ist~, CA UUDStreet r76~ i l, m^v .ue APN ;5733026i00~::] Owners's Name [Madigan, Mi~h;ei &Beverly Owners Address 372 West J Street City, State Chula Vista. ~a Zip 91910 UUD Street 372 i!westl J street APN 57326~i500 : I Owners's Name Marentez, Ricardo & Gilda Owners Address !227 West J Street City, State [?ula Vista. CA zip [9,910 UUD Street 1227 West Friday, January 24, 2003 Page 16 of 29 AFFECTED PROPERTY OWNERS APN 1~73~5i030~' Ownem's Name !Marmfo, David G & Norma*~ Owners Address 184 West J Street City, State Chula Vista` CA Zip 191910 U U D Street ! 188 West J Street APN i5~3s]1~oo~I Owners'e.ame Owners Address :184 J Street City, State [chui;~iSta, cA zip ~9~9~0 ] UUD Street 1184 i IJ Street APN 5742812200 ] Owners's Name IMartinez, Joc M & Espcranza Owners Address !44~ircct City, State iChula ~i;ta. cA zi. I"1~1° I UUD Street 44 IJ st;;et APN !572180 ?00 ~ Owners's Name iMason, James R & Marie Owners Address 1548 Wes~ J Street City, State Chul~ Vista, CA Zip 191910 ~ UUD Street 154~ IJ Street Friday, January 24, 2003 Page 17 of 29 AFFECTED PROPERTY OWNERS APN 572232 700 Owners's Name Mautino, Robert A & Virginia Owners Address [468 West J Street City, State iChula Vist~ CA Zip UUD Street [46! I West, Street APN 5721321 i00 Owners's Name Maya, Miguel & Aha Owners Address 696 Beech Avenue City, State Chula Vista, CA Zip 91910 UUD Street 696 IBeech Avenue APN 5733522200 Owners's Name Melendrez, Rene & Rosa E Owners Address :144 J Street City, State Chula Vista, CA Zip ,91910 UUO Street ?44 ! J Street APN [~7~ 1402700 Owners's Name [M~(:toza, M;~u~i V Owners Address Iv0. B~X 990 City, State IChula Vista, CA Zip [91912 UUD Street !61 IJ Street Friday, January 24, 2003 Page 18 of 29 AFFECTED PROPERTY OWNERS APN ~?~')312200 ~ Owners's Name Morales, Alfredo M Jr & joanne T Owners Address i395 J Street City, State IchUia Q[sta, CA Zip [91910 UUD Street 39ff iii [! Stre¢5 APN ~732800300 ] Owners's Name iMorton, Jennie L Owners Address [173 West J streei i City, State IChula Vista, CA '9 Zip 1910 UUD Street 1173 West J street APN :~721610900 ] Owners's Name lMoses, William H Owners Address 6% Elder Arena; I City, State Chula Vista, CA Zip ~9i910 UUD Street [696 I iElder Avenu~ i APN '5732601200 Owners's Name iOIvera & Medina, Family Trust Owners Address I li9i0 Marqui~ Corot I City, State Ichula Vista, cA Zip 91913 I UUD Street 229 [ j Street Friday, January 24, 2003 Page 19 of 29 AFFECTED PROPERTY OWNERS APN [572180~0001 Owners's Name O~tlZ, Jesus & Hemandez, Armmda Owners Address [542 West J Street City, State [Ch~i; Vista, ~A Zip ;51910 UUD Street 542 ;West J Street APN [57428i [600 Owners's Name Paz~ 0sca; h & H~ather M Owners Address ~[70 J Streei City, State I~hu]a vista, CA Zip 91910 UUD Street 70 ] J street APN 57!36003!!1 Owners's Name IPeringer, Cletn~ i Trust ] Owners Address 1i30 West J Street City, State Ichula Vista, CA Zip 19191o UUD Street ,h 30 Iwest, l Sireet APN 5732501400 ' Owners's Name ,Perry, Paula L ] Owners Address 271 ~ Street I City, State Chula vista, CA Zip ~91910 UUD Street 1271 IJ street Friday, January 24, 2003 Page 20 of 29 AFFECTED PROPERTY OWNERS A~N [~74281340~ Owners's Name :Pulido, Jose T & Beatriz E Owners Address )4 J ~treet City, State [Chuia ~ista, CA Zip 91~10 ] UUD Street !14 iJ Street APN i:5732~0100~ L Owners's Name [Rajsbaum, X ratian~ Owners Address 1163 West J str~ City, State Chula Vista, CA Zip [~1~i0 UUO Street l i63 i Iwcst J Street APN [5721720900 owners's Name !Ramir;z, C0;su¢10 X Owners Address ,427 J ~treet City, State i~hula Vista, CA Zip '91910 UUD Street 1427 ![J street APN Owners's Name iRamirez, Femando & Ale)andra Owners Address 14 J street City, State Chula Vista, CA Zip 19191o UUD Street !4 Friday, January 24, 2003 Page 21 of 29 AFFECTED PROPERTY OWNERS APN 5732902800 Owners's Name Ramirez. Gerardo R & Julia Owners Address 117 J Street City, State Chula Vista_ CA Zip 91910 UUD Street 117 J Street APN 5732902400 Owners's Name Rempe-Wien. Winona R Owners Address 51 Davidson Street City, State Chula Vista. CA Zip 91910 U UD Street 135 J Street APN 5732903300 Owners's Name Reyes Famil3 Trust Owners Address 147 J Street City, State Chula Vista~ CA Zip 91910 HUD Street 147 J Street APN 5732501700 Owners's Name Re) aoso. Altbnso. Eva. David Owners Address 696 Del Mar Avenue City, State Chula Vista- CA Zip 91910 UUD Street 696 Del Mar Avenue Friday, January 24, 2003 Page 22 of 29 AFFECTED PROPERTY OWNERS APN 574140-2~00 Owners's Name Rodriguem Rocio Owners Address 55 J Strccl City, State Chula Vista. CA Zip 9191O UUD Street 55 1 Street APN 5722320100 Owners's Name Ross, Mary C Owners Address 1712 Greentree Road City, State Encinims. CA Zip 92024 UUD Street 701 Elder Avenue APN 5721721000 Owners's Name Rowan Chris A Owners Address P.O. Box 407 City, State Chula Vista CA Zip 91912 UUD Street 423 J Street APN 5721722700 Owners's Name Rowan. Joseph A & Leora Owners Address ¢21 West J Street City, State Chula Vista. CA Zip 91910 UUD Street 421 West .1 Street Friday, January 24, 2003 Page 23 of 29 AFFECTED PROPERTY OWNERS APN 5732800400 Owners's Name Rowe, Elva G Owners Address 3561 Overpark Road City, State San Diego. CA Zip 92130 UUD Street 193 J Street APN 5741401200 Owners's Name Ruelas. Jose H Jr Owners Address 695 First Avenue City, State Chula Vista. CA Zip 91910 UUD Street 695 First Avenue APN 5732601400 Owners's Name Sanchez. Christopher G & Denise I Owners Address 225 J Street City, State Chula Vista_ CA Zip 91910 UUD Street 225 J Street APN [5732601500 Owners's Name Scheurenbrand, Rosemary D Trust Owners Address 221 West J Street City, State Chula Vis,a, CA Zip 91910 i UUD Street 221 ] West J Street Friday, January 24, 2003 Page 24 of 29 AFFECTED PROPERTY OWNERS APN ?721806100 ! Owners's Name [Siuba, Arleen L Owners Address [~2 w~t J street City, State ~chula ~is~a, ~X zi , 9i lO UUD Street i~32 ,![wesi J Street APN ?732902900 i] Owners's Name ~Spir~i jam~ w & Enyeart-~pic~S Dorothy owners Address Iq ~3 J Str~t city, State Chula Vista, CA Zip !~i910 UUD Street I~ i~ [J Street APN 772i806~00 [ Owners's Name Stewart, Frank H & Janice L Owner~ Address [55~ W~;t J Stre¢i City, State [c~!a vista, CA uu~ Street 1~26 Ii,est, Street APN 157356~i900 Owners's Name Swanson, Donald P & Ruth Owners Address i1515 Carson Street city, State [Ca,son City, NV Zip [8970i HUD Street 114 J Street Friday, January 24, 2003 Page 25 of 29 AFFECTED PROPERTY OWNERS Owners's Name iT~ay or, Luther R Owners Address 17Ol Fifth Avenue City, State [Chul~ ~iSta, CA UUD Street I?01 !'Fifth Avenue Owners's Name IIa~[2R J~k & Brian Owners Address 15'/40 ~iiS~ Court City, State Bonita, CA Zip 9i~02 UUD Street 1299 !J Street APN ?/52501200 Owners's Name ITaylor, R Jack & Brim~ Owners Address 2~ ~r~i City, State Chula Vista, CA Zip i91910 UUD Street [289 I[J Si~et APN 15721722800 : Owners's Name ~Tran, Steve Vict Owners Address 1417 J Street City, State Ichula Vista, CA Zip 1~i910 UUD Street 1417 I!J Street Friday, January 24, 2003 Page 26 of 29 AFFECTED PROPERTY OWNERS APN 5742810100 - Owners's Name rrudara. BerthaG r Owners Address ~703 First Avenue City, State Chula Vista. CA Zip 9191D UUD Street 703 1 L~First Avenue APN 5741403100 Owners's Name Verlasky, Ruth C Trsut Ownem Address 79 West J Street City, State Chula Vista. CA Zip 91910 UUD Street 79 West J Street APN 5732801200 Owners's Name Vickey, George Owners Address 153 West J Street City, State Chula Vista_ CA Zip [91910 j U U D Street ~153 West J Street APN /5732312300 Owners's Name [Villarin, Adelaide & Theodore Owners Address 393 West JStreet CRy, State Chula Vista, CA Zip 91910 UUD Street 393 / West J Street Friday, January 24, 2003 Page 27 of 29 AFFECTED PROPERTY OWNERS APN i5732601700 Owners's Name ' * ' !Wllhams, Family Trust Owners Address 6~ Second ~nu¢ City, State Chula Vista, CA Zip 91910 I UUD Street 692 i Second Avenue : APN ~733320~00 i] Owners's Name Wilson, Howard D & Thelma L Owners Address 351 West J Street City, State 'Chula~is~a, CA Zip 91910 UUD Street 35i I lwest J Street APN ]5722404900 Owners's Name Withfield Glenn T Ill & Sonia Owners Address 436 J Street City, State ]Chula Vista, CA Zip ~919i0 UUD Street [4~6 lJ Street AP. rs7 8oo oI Owners's Name ]Wright, Donald H Trust Owners Address i697 Second Avenue City, State Chula Vista, CA Zip 191910 UUD Street i697 [Second Avenue Friday, January 24, 2003 Page 28 of 29 AFFECTED PROPERTY OWNERS APN ~5722a, 00~00 [ Owners's Name [Ye;ger~ E~; L Owners Address [P.o. Box 2~22 city, state [~hUl~ Vista, CO Owners's Name [5?!ng: w~5 H Ci~, State [ka~i;a~ ca OOD $tr~t 1397 l? Street Friday, January 24, 2003 Page 29 of 29 COUNCIL AGENDA STATEMENT EXHIBIT "D" Item Meeting Date 1/21/03 ITEM TITLE: Resolution 2003-020 Declaring City's intention to underground overhead utilities along "J' Street from Broadway to Hilltop Drive, and setting a public hearing for the formation of Utility Underground District Number 137 for Fcbruary 18, 2003 at 6 p.m. SUBMITTED BY: Director of Engineering REVIEWED BY: City Manager (4/Sths Vote: Yes__ No X ) On November 12, 1991, the City Council approved Resolution No. 16415 accepting a report on the City's Utility Undergrounding Conversion Program and approving a revised list of utility underground conversion projects including "J" Street. On November 15, 2002, an Underground Utility Advisory Committee (UUAC) meeting was held at the site to determine the proposed boundary of an underground utility district for the conversion of existing overhead utilities. The proposed boundary is shown on attached Exhibit A. The district's limits extend along "J" Street from Broadway to Hilltop Drive. RECOMMENDATION: That Council approve the resolution declaring the City's intention to underground overhead utilities along "J" Street from Broadway to Hilltop Drive and setting a public hearing for the formation of Utility Underground District Number 137 for February 18, 2003 at 6 p.m. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The Underground Utility Advisory Committee (UUAC), consisting of representatives of SDG&E, Pacific Bell, Cox Communications, Chula Vista Cable and the City, agreed to propose to the City Council the formation ora district for the conversion of overhead utilities to underground "J' Street from Broadway to Hilltop Drive. The proposed utility undergrounding district along "J" Street is about 4,000 feet long (.76 miles), running from Broadway to Hilltop Drive (See Exhibit A). The estimated cost for undergrounding the utilities is $1,000,000. The Average Daily Traffic (ADT) count on "J" Street, between Broadway to Hilltop Drive, is approximately 13,248 vehicles per day. Page 2, Item Meeting Date 1/21/03 Staff recommends the formation of this conversion district along this section of East "J" Street because: 1. "J" Street is a major west/east thoroughfare between the western and eastern portions of Chula Vista. The undergrounding of existing overhead utilities will contribute to the creation of an aesthetically pleasing major street. 2. This segment of "J" Street from Broadway to Hilltop Drive is classified in the General Plan's Circulation Element as the following: · Class 1 Collector street from Broadway to Fifth Avenue. · Class 2 Collector street from Fifth Avenue to Hilltop Drive. 3. In addition to single family residential, the district fronts along a commercial site and Hilltop Elementary School. Section 15.32.130 of the Chula Vista Municipal Code requires the City Council to set a public hearing to determine whether the public health, safety, and general welfare requires the undergrounding of existing overhead utilities within designated areas of the City to give persons the opportunity to speak in favor of or against the formation of a proposed district to underground utilities. The purpose of forming the district is to require the utility companies to underground all overhead lines and to remove all existing wooden utility poles within the District and to require property owners to convert their service connections to underground. The conversion work by the property owners involves trenching, backfill and conduit installation from property line to point of connection. Chula Vista City Council Policy No. 585-1 established a mechanism that helps property owners with the cost of the conversion work from the distribution lines to the structure. Said policy provides for the reimbursement ofproperty owners at a rate of $35 per lineal foot of trenching, which is normally sufficient to cover total costs. Exhibit B shows a reimbursement schedule listing reimbursement amount for all 114 affected properties. The total reimbursement is approximately $210,000 and is included in the overall cost estimate of $1,000,000. Approval of this resolution will set a public hearing to be held during the City Council meeting of February 18, 2003 at 6 p.m., in accordance with Section 15.32.130 of the Municipal Code for the formation of this district. Section 15.32.140 of the City Code requires the City Clerk to notify all affected persons and each utility company of the time and place of the public hearing at least 15 days prior to the date of the public hearing. Notice is to be given by mail to all property owners and occupants of property located within the boundaries of the proposed district. The City Clerk is required by said section of the Code to publish the Resolution of Intention, setting the public hearing in the local newspaper no less than five days prior to the date of the public hearing. Page 3, Item Meeting Date 1/21/03 FISCAL IMPACT: The cost of pole removal, undergrounding overhead facilities and private property conversion reimbursements as outlined above is estimated to be approximately $1,000,000. SDG&E's allocation funds (Rule 20-A) will cover the estimated cost of the project. The estimated cost for street lights project associated with the undergrounding district is estimated to be approximately $100,000. City staff will be establishing a separate CIP project for the street light work to be done in FY 03/04. The $100,000 funding source is anticipated to come from Gas Tax. All staff costs associated with the formation of this district is not reimbursable from the allocation funds and, therefore, are borne by the General Fund. Attachment: Exhibit A Boundary Map Exhibit B Reimbursement Schedule J:\Engineer~ADVPLAN~UUDIST~E J ST~UUD137 Intention.jcm.doc RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING UNDERGROUND UTILITY DISTRICT NO. 137 ALONG "J" STREET FROM BROADWAY TO HILLTOP DRIVE AND AUTHORIZING THE EXPENDITURE OF UTILITY ALLOCATION FUNDS TO SUBSD1ZE PRIVATE SERVICE LATERAL CONVERSION WHEREAS, by Resolution No. 2003-020, a public hearing was called for 6:00 p.m. on Tuesday, the 18th day of February, 2003, in the Council Chambers of the City of Chula Vista at 276 Fourth Avenue in said City, to ascertain whether the public health, safety or welfare requires the removal of poles, overhead wires and associated overhead structures and the underground installation of wires and facilities for supplying electric, communication or similar or associated service within that certain area of the City more particularly described as follows: All that property lying along "J" Street t?om Broadway to Hilltop Drive and enclosed within the boundary as shown on the plat attached hereto as Attachment "A" of subject Underground Utility District. WHEREAS, notice of such hearing has been given to all affected property owners as shown on the last equalized assessment roll, and to the utility companies concerned in the manner and for the time required by law; and WHEREAS, such hearing has been duly and regularly held, and all persons interested have been given an opportunity to be heard. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds and determines that the public health, safety and welfare requires the removal of poles, overhead wires and associated structures, and the underground installation of wires and facilities for supplying electric, communication or similar associated smwices, the above-described area is hereby declared an Underground Utility District, and is designated as such in the City of Chula Vista. Attached hereto, marked Exhibit "A", and incorporated herein by reference is a map delineating the boundaries of said District. BE IT FURTHER RESOLVED that the City Council shall, by subsequent resolution, fix the date on which affected property owners must be ready to receive underground service, and does hereby order the removal of all poles, overhead wires and associated overhead structures and the underground installation of wires and facilities for supplying electric, communication or similar associated service within said Underground Utility District. BE IT FURTHER RESOLVED that the City Clerk is hereby instructed to notify all affected utilities and ali persons owning real property within said Underground Utility District of the adoption of this resolution within fifteen days after the date of said adoption. Said City Clerk shall further notify said property owners of the necessity that, if they or any person occupying such property desires to continue to receive electric, communication or other similar or associated service, they, or such occupant shall, by the date fixed in a subsequent resolution provide all necessary facility changes on their premises so as to receive such service from the lines of the supplying utility or utilities at a new location, subject to the applicable rules, regulations and tariffs of the respective utility or utilities on file with the Public Utilities Commission of the State of California as of the date o f adoption of this resolution. Such notification shall be made by mailing a copy ofthis resolution to affected property owners as shown on the last equalized assessment roll and to the affected utility companies. BE IT FURTHER RESOLVED that the City Council hereby finds that the Underground Utility District herein created is in the general public interest for the following reasons: 1. "J" Street is a maj or west/east thoroughfare between the western and eastern portions of Chula Vista. The undergrounding of existing overhead utilities will contribute to the creation of an aesthetically pleasing major street. 2. The segment of"J" Street from Broadway to Hilltop Drive is classified in the General Plan's Circulation Elements as: a. Class I Collector street from Broadway to Fil2h Avenue. b. Class 2 Collector street from Fifth Avenue to Hilltop Drive.. 3. In addition to single family residential, the district fronts along a commercial site and Hilltop Elementary School. BE IT FURTHER RESOLVED that the City Council does hereby authorize the use of approximately $1,000,000 in utility allocation funds to cover the cost of pole removal, undergrounding overhead facilities, and private property conversion reimbursements. Presented by Approved as to form by Clifford T. Swanson John M. Kaheny Director of Engineering City Attorney J:\Attorney\RESO~UUD establish 137.doc 2 COUNCIL AGENDA STATEMENT Item: ~4 Meeting Date: 2/18/03 ITEM TITLE: Resolution accepting the City Manager's certification of sole source status and approving a Design Build Agreement with Highland Parmership, Inc. (HPI) for the provision of services required to design and construct renovations to the City's Civic Center Complex pursuant to the Master Plan, and authorizing the Mayor to execute said agreement; and appropriating $3,820,450 from the available balance of the Public Facilities Development Impact Fund to finance the pre-construction phase of the project. Resolution waiving the consultant selection process as impractical and approving a Consultant Services Agreement with Allegis Development Services, Inc. for Project Management/City's Representative Service with respect to the renovations to the City's Civic Center Complex and authorizing the Mayor to execute said agreement. Resolution declaring the City's intention to issue tax exempt obligations to finance the renovations to the City's Civic Center Complex and directing staff to return with a financing plan. SUBMITTED BY: Andy Campbell, Director of Building and Park Constructio~ REVIEWED BY: City Manager (4/Sths Vote: Yes X No ) The City Council previously approved CIP project GG-139 which involves the renovation of the Civic Center Complex. A Master Plan for the renovations was approved in July of 2001. The Design Build Agreement will mark the kick-off of the implementation of that Master Plan. The project will be broken into multiple components and the duration of the project will be from four to five years. The agreement with Allegis Development Services, Inc. is for the provision of project management services for the entire duration of the Project· Allegis Development Services, Inc. will serve as the City's representative with respect to all aspects of the Project and will make recommendations to the City with respect to issues that arise during the course of the Project. Staffwill develop and return to Council with a financing plan which will include the issuance of tax exempt bonds at a date after Council's approval of the Guaranteed Maximum Price for the Project RECOMMENDATION: That the City Council accept the City Manager's certification of sole source status and approve a Design Build Agreement with Highland Partnership, Inc. (HPI) for the provision of services required to design and construct renovations to the City's Civic Center Complex pursuant to the Master Plan, and authorizing the Mayor to execute said agreement; and 1¥-/ Page 2, Item: 14 Meeting Date: 2/18/03 appropriating $3,820,450 from the available balance of the Public Facilities Development Impact Fund to finance the design phase of the project. That the City Council waive the consultant selection process as impractical and approve a Consultant Services Agreement with Allegis Development Services, Inc. for Project Management/City's Representative Service with respect to the renovations to the City's Civic Center and authorizing the Mayor to execute said agreement. That the City Council declare the City's intention to issue tax exempt obligations to finance the renovations to the City's Civic Center Complex and direct staff to return with a financing plan. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. BACKGROUND: In July of 2001, the Final Master Plan for the renovations to the Civic Center was presented to and approved by Council. These renovations include City Hall, the Public Services Building, the current Police Department and the demolition of the Legislative Building and the Community Development Building. Upon the completion of the new Police Facility, the current Police Facility becomes available to the City for temporary offices while the other buildings in the Civic Center complex are renovated (City Hall and Public Services Building) or removed (Legislative Building and Community Development Building). Prior to the completion of the new Police Facility, the design activities for all of the improvements to the Civic Center will be completed so that as soon as the current Police Department is available, work can commence on City Hall. Upon completion of City Hall, the Public Services Building will be renovated. Finally, the current Police Department building will be renovated. All of these improvements will enable the City to enhance the services it provides to the public, make the public's ability to undertake business with the City more efficient and provide the City's employees with efficient and productive workspaces. The related surface improvements will provide adequate on-site parking for all City employees and sufficient visitor parking. The approved Master Plan also included a fourth component which is the relocation of existing Fire Station No.1 to the site of the current Ken Lee Building. This component was not intended to be constructed with the remainder of the Civic Center complex and was not included in the environmental document prepared for the renovation of the Civic Center complex. The Fire Station No. 1 phase would be funded by the City's General Fund or other appropriate non- development impact fee funds. Staff will return to Council at a future date when it appears that both funding and operational functionality require that the relocation of Fire Station No. 1 be considered for implementation. DESIGN/BUILD Staff is recommending the City enter into an agreement with HPI for the provision of services required to design and construct the renovations to the Civic Center complex. Page 3, Item: 1 4 Meeting Date: 2/18/03 The design/build process employs a single entity, either a general contractor or an architect, which provides both design and construction services. In the typical scenario, a design/build oriented general contractor provides the design and construction services. Altematively, an architectural firm may provide the design services and hire the general contractor on a consulting basis for the construction phase. In this later scenario, the architectural firm will be held responsible for all aspects of the project. In the case of the Civic Center renovations, the design/build process will place sole responsibility for delivery of the project upon HPI, a general contractor. HPI will subcontract for the design and consulting services, and trade contracts during the construction phase. Generally, utilization of a design/build process will provide savings in cost and time because the entire project is managed and constructed by a single entity, thereby eliminating the difficulties of dealing with multiple entities and overhead on one project. The design/build process provides the City the flexibility to work with the best contractors in the County as it does not necessarily require award to the lowest responsible bidder. The following are other benefits of using design/build as a construction delivery method: · Quality - Because HPI is responsible for both the design and construction of the renovations to the Civic Center complex, is assumes all responsibility for every aspect of construction of high quality, fully functioning facilities. The greater responsibilities and accountabilities implicit in the design build process serve as motivation for high quality and proper performance of building systems. The City's requirements and expectations have been documented in the program and Master Plan approved by City Council on July 10, 2001. Once the design development phase of the project is completed, staff fully expects that HPI will deliver renovations to the Civic Center complex that will meet or exceed the design criteria. Under the terms of the design/build contract, HPI will be responsible through the post-occupancy warranty period for the performance of the various components and their integral parts as defined in the plans and specifications. This guarantee of performance, which HPI can now offer because it controls both the design and construction, motivates HPI to assure the quality of both the design and construction in order to mitigate the risk of performance failure. Effectively, the design/build process requires HPI to accept and adopt the City's quality objectives. · Construction Cost and Value - Value engineering and constructability reviews are utilized more effectively when the designers and builders work as one body during the design process. Cost savings, however, is not a goal in itself but rather is part of the design builder's broader objective of creating value. Staff believes HPI possesses a comprehensive knowledge of labor and material costs and an awareness of the cost relationships between the various project components. This important knowledge will allow the design build team, which will include City staff, to maximize the project's value while reducing its overall cost. · Time Savings - Because design and construction can be done concurrently and because general contract bidding periods and re-design time are eliminated, total design and construction time can be significantly reduced. However, the concurrent processing of overlapping phases has the potential of producing cost overruns. This becomes likely in the event where changes in one phase affect Page 4, Item: ~ g~ Meeting Date: 2/18/03 subsequent phases. HPI will implement a project schedule in which the design process parallels procurement and construction. The schedule also incorporates review and approval periods by the City. · Reduced City Administration - While it is clear that thc design/build process does require the City to provide prudent oversight of the design and construction phases, the administration time and effort is considerably less time-consuming. The time savings comes mainly as a result of interaction in the typical design/bid/build. · Early Knowledge of Firm Costs - Since HPI is responsible for design and estimating of construction costs, HPI will be able to conceptualize the completed project at an early stage in design development and provide the City with a Guaranteed Maximum Price (GMP) at the completion of that phase. This benefit permits early establishment of financing and reduced exposure to cost escalation and avoids the risk of committing substantial time and money for architectural and engineering services only to learn that the cost of the project or one of its components is prohibitive. Risk Management - Under design/build, change orders due to errors and omissions in the construction documents are eliminated because the correction of such will be the responsibility of HPI and not the City. When a change order does occur, the City will outline its needs and expect to receive different design solutions and cost proposals representing the best thinking of key team players. SOLE SOURCE The City's typical bidding process consists of the preparation and dissemination of an RFQ, selection of a staff committee to screen and select the most qualified firm, submittal review and screening, interviews, final selection and development of an agreement and price submittal of staff's recommendation to Council. A project of the scope and complexity of the Civic Center Complex renovation would require four to six months to complete this process, and is representative of the manner in which HPI was originally selected. It is recommended that the City Council accept the City Manager's certification and authorize staff to enter into an agreement with HPI for the design/construction of the Civic Center Complex renovation. Justification for the sole source agreement is based upon the following: 1. HPI and its team has specialized knowledge based on its preparation of the Civic Center Complex Master Plan, programming and schematic design and has demonstrated expertise in this field with the design and construction of other public facilities. In specific, HPI has provided outstanding services to the City during the course of the design and construction of the new Police Headquarters to date. The City has every confidence that an equally high level of service will be provided on the Civic Center Complex Renovations. 2. Reference checks done as part of the original selection process for the CMC list resulted in favorable reports regarding the work completed by HPI. Page 5, Item: ~ Meeting Date: 2/18/03 3. Time is of the essence regarding the renovation of these facilities. Space is a premium commodity in all three buildings and, notwithstanding future build-out, additional square footage is needed just to meet existing space needs. Evidence of this is the City's reliance on temporary structures to house current staff within the Civic Center Complex. 4. HPI and its team have significant history regarding the space, programming and development needs required for the Civic Center Complex renovation. To require an RFP for this project would be a waste of this expertise. 5. The proposed sole source agreement is consistent with the intent of the priority list established as a result of the RFQ process as approved by the City Council and from which HPI was originally selected. PROJECT MANAGEMENT In order to insure that the City receives a fair price for design/build services performed by HPI, staff used the services of Allegis Development Services, Inc. to review the proposed fees submitted by HPI. Additionally, staff has utilized the services of Mr. Kip Howard, President of Allegis Development Services, Inc., to assist in the review and negotiations of the contract with HPI. Mr. Howard has agreed to provide these pre-Design/Build agreement services without compensation. It is based on Mr. Howard's review of the proposed fees and his expertise in the design/build field, that staff has accepted the proposed fee schedule recommended by HPI. Additional comments regarding the actual construction cost/fee will be discussed later in this report. Staff recommends that Cotmcil waive the typical consultant selection process and approve the agreement under consideration this evening with Allegis Development Services, Inc. for overall project management services of the Project. Staff believes that it is proper to waive the consultant selection process in the retaining of Allegis Development Services, Inc., as they have acquired very detailed information with respect to the Project and are intimately familiar with the typical City processes. Additionally, Allegis Development Services, Inc., have extensive experience in the desigrffbuild arena and this experience will be of great value to the City as this complicated lengthy project. Staff also believes that the delay that would be caused by the bidding of these services is not warranted and the costs for these services as proposed are reasonable based upon previous recruitment efforts with respect to the new Police Headquarters. PROJECT SCOPE AND CONTRACTUAL REQUIREMENTS As proposed, the Design/Build Agreement with Highland Partnership, Inc. will provide the City with fully functional buildings within the Civic Center complex. The building and site improvements are more fully described in the approved Master Plan and attached Design/Build agreement. The cost of the renovations of the Civic Center complex is based on the GMP for the entire complex and shall not exceed the amount set forth in the agreement. This price includes all soft and hard costs necessary to provide fully completed and functional facilities and includes, but is Page 6, Item: Meeting Date: 2/18/03 not limited to, the cost of labor, equipment and material, the design/build fixed fee (which includes fees and expenses of any type associated with the completion of the project, and will be discussed in detail later in this report and contingency fund). Any costs in excess of the GMP shall be the responsibility of HPI unless otherwise approved by the City. The GMP, which will be submitted by HPI when the Design Development phase has been completed, may not exceed $28,081,000. This amount includes all design costs, all hard construction costs, Design/Builder fees and Design/Builder contingencies. It does not include Design/Builders reimbursables, direct City costs, City provided FF&E, City insurance or City contingencies. The Project is being broken into three (3) Components reflecting the three (3) buildings that are being renovated. Component A Design and Construction of Renovation of City Hall and Temporary Renovation of Current Police Facility Design of City Hall Renovations $ 1,192,000 Design of Temporary Renovations to Current PD $ 65,000 Development Staff Costs $ 120 000 Design/Builders Fee (Design) $ 240 000 Design/Builders Fee (Construction) $ 432 000 Design Builders Reimbursables $ 152 000 Construction Allowance Budgets $ 703 000 General Conditions $ 884 000 Renovation of CityHall $ 5,577,000 On-Site Improvements $ 2,495,000 Construction Contingency $ 439,000 Total Design Builder Costs $12,299,000 City Budgeted Allowances (Permits, Staff Time Furniture and Equipment, Project Management Services, Contingencies, Other Equipment, 1% Liability Insurance) $ 2,469,000 Total Component A $14,768,000 Component B Design and Construction of Renovation of Public Services Building (PSB) and Council Chambers Design of PSB Renovations $ 690,000 Design of Temporary Renovations to Current PD $ 10,000 Development Staff Costs $ 75,000 Design/Builders Fee (Design) $ 151,000 Design/Builders Fee (Construction) $ 270,000 Design Builders Reimbursables $ 115,000 Page 7, Item: ~ Meeting Date: 2/18/03 Construction Allowance Budgets $ 591,000 General Conditions $ 584,000 Renovation o£PSB $ 3,272,000 Renovation of Council Chambers $ 971,000 On-Site Improvements $ 658,000 Construction Contingency $ 275,000 Total Design Builder Costs $ 7,662,000 City Budgeted Allowances (Permits, Staff Time Fumiture and Equipment, Project Management Services, Contingencies, Other Equipment, 1% Liability Insurance) $ 1,848,000 Total Component B $ 9,510,000 Component C Design and Construction of Renovation of Current Police Department Design of Police Department Renovations $ 785,000 Design of Temporary Renovations to Current PD $ 10,000 Development Staff Costs $ 83,000 Design/Builders Fee (Design) $ 166,000 Design/Builders Fee (Construction) $ 299,000 Design Builders Reimbursables $ 122,000 Construction Allowance Budgets $ 620,000 General Conditions $ 665,000 Renovation of Current Police Department $ 4,800,000 On-Site Improvements $ 655,000 Construction Contingency $ 304,000 Total Design Builder Costs $ 8,509,000 City Budgeted Allowances (Permits, Staff Time Furniture and Equipment, Project Management Services, Contingencies, Other Equipment, 1% Liability Insurance) $ 1,773,000 Total Component C $10,282,000 Original City Insurance Cost Estimate $ 842,000 Anticipated Addl. Insurance Costs (see $ 2,658,000 discussion on insurance starting on Page 14) Total Project Cost - $38~0607000 Page 8, Item: I q Meeting Date: 2/18/03 Council will note that two contingency funds exist. A construction contingency, which HPI will use to address change orders submitted by it's subcontractors, and which require City staff approval, and an owner's (City) contingency. The owner's contingency is used by the City when requesting design changes not contemplated in the approved design. The contractor's contingency is estimated at approximately 5% o£ the project costs, the City's contingency is 2.5% of total project costs. At the substantial completion of each component, any unused contingency funds will be rolled into the next component or return those funds to the City and reduce the GMP accordingly. At the final completion of'Component C, any unused contingency Funds will be returned to the City. It should also be noted that the reuse of the current Police Department as a temporary home For City Staff as City Hall and the Public Services Building are renovated results in significant savings as compared to renting a comparable amount of office space on the commercial market. Component A includes a cost o£ $300,000 for interim improvements to the current Police Department. This matter was addressed in the Civic Center Master Plan and the projected savings at that time were estimated at $1.5 million. CHANGE ORDERS Under the design/build process, change orders are handled differently than under the design/bid/build process. Change orders are only returned to the Council for approval it' they exceed the approved GMP, or are for additional work requested by the City which results in significant change of the original scope. Otherwise, change orders are reviewed/approved at the staff/design/build level. This is the typical practice in design/build relationships. Change orders will be scrutinized carefully by the City's project management consultant and staff and will only be approved when the City concludes that the change order has merit, i.e. work that is not contemplated in the original scope/plans/specifications. If a change order is found to have merit, an itemized cost estimate will be developed and compared to the existing bid line item unit costs, an industry standard "means and methods' cost analysis (i.e., it is within the normal range o£ practices, methodology and cost to achieve the change order), and comparative bid proposals from like contractors. In addition, particular attention will be paid to capturing any "credits" that may be covered by the original scope of work and that will not be completed as a result of the change order. Ultimately, the change order becomes a negotiated price reflecting the above actions. COMPETITIVE BIDDING REQUIREMENTS To ensure a fair price, HPI, it's subsidiaries, related entities and professional consultants will not perform any construction work unless specific authorization is received from the City after the completion of a selective (from a list of pre-qualified, responsive consultants/contractors) competitive bid process. As an additional check and balance, the City may employ the services of a construction estimator to review the construction estimates prepared by HPI for the Project. Because the consultant selection process has been waived, it is staff's intent that the estimator and formal, selective bidding process will help insure the City a fair price. With respect to the Page 9, Item: l ~ Meeting Date: 2/18/03 bidding of all construction trade work, HPI will undertake a selective competitive bid process for each trade and will provide this proposed contract prices for those trades to the City for approval. CONTRACT TERMINATION The proposed contract enables the City to terminate the agreement with HPI for a variety of reasons, including, but not limited to: I. Cause: Termination failure of the design builder to fulfill in a timely and proper manner its obligations under the agreement. If this were to occur and design/builder did not "cure" the problem, the City has right to: a. Take possession of all work, documents, data, plans ..., finished or unfinished. b. Complete the project by whatever method or means the City may select c. If the cost to complete the project exceeds the funds left in the project at the point of termination for cause, the design/builder shall pay the excess amount to the City. II. Convenience: Termination for any reason, at any time, by giving specific notice to the design/builder of at least ten (10) days prior to the date of termination. If this were to occur, all finished and unfinished work, documents or other materials shall become the property of the City. In addition, the design/builder shall take any actions necessary to protect the project and site and or as required by the City. In a Termination for Convenience, the design/builder may be reimbursed a fee proportional to the pementage of work "satisfactorily" completed. PROJECT PHASING The contractual requirements of the City's design/builder are broken into four phases. Phases I through III are the pre-construction phases which include the confirmation of the conclusions reached during the development of the Master Plan and the design of all improvements. The work for these phases will be undertaken primarily by the Project Architect, Carrier Johnson (C J). CJ will be acting as a sub-consultant to HPI and all their costs are included in HPI's GMP. I. CONFIRM MASTER PLAN AND SCHEMATIC DESIGN · Review City's Master Plan and Basis of Design as appropriate to identify project requirements. The "Basis of Design" document describes the materials type and quality that will be installed in the facilities. This document will continue to be refined through the design phases with a primary objective of not exceeding the project budget. Staff will submit the final "Basis of Design" for Council's approval before the construction documents are finalized. A copy of the current "Basis of Design" is Exhibit 4 to the agreement available for Council review. Page 10, Item: ~ Meeting Date: 2118/03 Validate the Master Plan recommendations. · Prepare complete schematic design document (SDD) that include, but are not limited to: Detailed site plans Detailed floor plans o Roof plans o Site sections o Building sections o Exterior elevations o Wall sections o Outline specifications o Code compliance review Delivery of massing model, 3D imaging and color and material boards · Detailed cost estimate which shall include a Fumiture, Fixtures & Equipment (FF&E) matrix delineating the Parties FF&E obligations. II. DESIGN DEVELOPMENT Preparation of complete design development documents (DDD) includes similar, but more detailed, refinement of the subcomponents described above. As details and additional site information are discovered or developed, the original schematics are revised to reflect that information. Upon the approval of the DDD by the City, HPI shall submit the GMP to the City for approval. The GMP shall include all Hard Construction Costs (including those portions of FF&E for which HPI is responsible pursuant to the FF&E matrix), Design/Build Contingency Fund and the Design Build Fixed Fee for the complete design and construction of the entire Project. As per the agreement, the GMP shall not exceed $28,081,000. This amount includes all design costs, all hard construction costs, Design/Builder fees and Design/Builder contingencies. It does not include Design/Builders reimbursables, direct City costs, City provided FF&E, City insurance or City contingencies. III. CONSTRUCTION DRAWiNGS This phase represents the third formal refinement of documents to be submitted for City review and approval and reflects the first formal submittal of "Construction Documents". In this phase, HPI will submit the final refinements to the details noted above. The documents will be of sufficient clarity and detail to show the extent of Page 11, Item: t 4 Meeting Date: 2/18/03 structural systems and dimensions, final design criteria, foundation design criteria (where additions are contemplated (City Hall)), architectural plans and details, mechanical plans and details, electrical plans and details, plumbing plans and details, etc. At this stage, HPI will establish the sequence of construction and shall prepare a detailed "Critical Path Method" schedule for all construction components. This schedule will identify all major milestones, bid dates, cormnencement of construction, sequence of construction, completion of structural elements, completion of interior and exterior elements and the date the building will be available for the installation of FF&E, as well as the dates for substantial completion of each construction component and the final completion of the project. IV. CONSTRUCTION ADMINISTRATION During this phase, the City will issue formal Notice To Proceed for each construction component, subsequent to the approval of the 100% construction documents and the acquisition by HPI of all required governmental permits and approvals. Upon receipt of the Notice to Proceed on a construction component, HP1 will prepare bid packages, conduct (in consultation with the City) selective competitive bidding, schedule and conduct pre bid conferences, analyze and award bids and proceed to construction. In addition to the above, HP1 will: · Furnish performance and payment bonds as security for the completion of the work; · Procure and maintain insurance against all claims for injury to persons or property, as well as Commercial General Liability, Workers Compensation/Employers Liability, and other insurance requirements as noted in the contract; · Provide errors and omissions insurance. FEES HPI receives a fixed fee for the management, oversight and payment of the architectural, engineering and other professional consultants utilized by HPI to fulfill its obligations under the proposed agreement. As a separate line item, HPI also receives a fixed fee for Phase IV, the construction services phase. These fees are separately identified because they involve separate services/responsibilities, thus avoiding duplication of cost and overhead by the City. The full schedule of fees that HPI will be paid are depicted on Exhibit 9 of the Design/Build Agreement. For phases I - III, the agreement with HPI reflects a fixed fee in the amount of $3,587,000. With this fee, HPI covers its overhead, as well as the payment of all architects, engineers (structural, civil, mechanical), space planners, interior designers, landscape architects, lighting and audio/visual consultants, security consultants and other professionals as appropriate. Page 12, Item: ] L~ Meeting Date: 2/18/03 The phase IV fixed fee is $3,134,000. This is based on the cost of construction for the facilities, reimburses HPI for its overhead during the construction phase, but does not include any of the costs reflected in phases I - III. All payments will be made in accordance with a payment schedule which is solely based on the progress of the work. The payment schedule for phase 1V will be established following the completion of the design phases. The reasonableness of the proposed fee has been reviewed and recommended by Mr. Howard based upon his experience in the design/build field. In evaluating the proposed fees, Mr. Howard evaluated those design/build projects for which he has had project management oversight and compared them with HPI's proposed fee schedule. HPI's total fee for all phases, including reimbursable expenses and excluding any consultant costs or general conditions, is approximately 7.3% of hard construction costs. Given the complexity of the project in that three separate and distinct existing buildings will be renovated, along with their related site improvements such as parking, landscaping, etc., this pementage is well within a reasonable expectation for such a fee. Please note that HPI's fee also reflect their assumption of risk inherent in the design/build process. PROJECT CONSTRUCTION, DEMOLITION AND COMPLETION DATES As noted earlier, the project will be composed of four phases. Phases I - HI will be the design phases and phase 1V will be the construction phase. Phase IV will be broken into three components representing the three buildings that are being renovated and will be undertaken in sequential order (City Hall, then Public Services Building, then current Police Department). The start dates and expected substantial completion dates for each phase is as follows: PHASE I - CONFIRM MASTER PLAN AND SCHEMATIC DESIGN · Start Date February 18, 2003 · Completion Date August 15, 2003 PHASE II - DESIGN DEVELOPMENT · Start Date August 18, 2003 · Completion Date January 2, 2004 PHASE III - CONSTRUCTION DRAW1NGS · Start Date January 5, 2004 · Completion Date July 9, 2004 Page 13, Item: ~ Meeting Date: 2/11]/03. PHASE IV - CONSTRUCTION ADMINISTRATION · Component A (City Hall and interim improvements to current PD) o Start Date February 20, 2004 o Substantial Completion Date - April 18, 2005 · Component B (Public Services Building) o Start Date April 19, 2005 o Substantial Completion Date - April 25, 2006 · Component C (Current Police Department) r> Start Date April 26, 2006 o Substantial Completion Date - July 4, 2007 The completion date for the entire project is scheduled to be July 4, 2007. PROJECT FINANCING As noted on page 7 of this report, the total estimated project cost is $38,060,000. As of this date, $2,050,300 has been appropriated from the Public Facilities Development Impact Fee Fund. Of this amount, $1,845,198 has been spent, the vast majority of which on the development of the previously discussed Master Plan. There is currently $83,061 encumbered to complete minor interim improvements in City Hall, leaving an available balance of $122,041. Of this amount, it is expected that an additional $10,000 will be spent on additional minor projects and furniture. As the estimated cost of the project of $38,060,000 is from this period forward, an additional $37,947,959 will be required. Staffrecommends appropriating $3,820,450 from the available balance of the Public Facilities Development Impact Fee Fund. These funds are needed to fund the pre-construction phase of the project. Those costs are broken down as follows: · Design Costs $2,095 000 · Development Staff Costs $ 262 300 · Design/Builders Fee (Design Only) $ 433 400 · Project Management Services $ 225 000 · Environmental Analysis of Buildings $ 100 000 · Insurance (see discussion below) $ 600 000 · City Design Contingency (5%) $ 104,750 Total $3,820,450 / Page 14, Item: I ~ Meeting Date: 2/18/03 INSURANCE The issue of insurance on the Project has been a complicated one. As Council will recall, the insurance costs on the new Police Facility were significantly higher than were expected, due to the events of September 11,2001 and the significant hardships that were faced by the insurance industry. As staffand HPI moved forward on the negotiations of this agreement and developed projected costs, we quickly observed that insurance costs had increased again. On the Police facility, the insurance costs represented roughly 9% of the total construction costs. On the Police Headquarters project, the City purchased a Contractor Controlled Insurance Program ("CCIP"). The CCIP is a project specific insurance program which combines most of the major insurance coverages (i.e. worker's compensation, employer's liability and general liability). This approach was used on the Police Headquarters because of the reduced administrative expense and lower claims handling and legal costs due to consolidation of owner and contractor interests. Stafflooked at a variety of options for packaging the insurance on the Civic Center Complex project. The option of rolling the CCIP on the Police Headquarters over to the Civic Center has been explored and appears to be the most cost effective at this time. The prices that we were provided to roll the Police coverage over to the Civic Center Complex were approximately 12% of the estimated construction cost of the Civic Center Complex project. Both staff and HPI were surprised by this increase given the nature of the construction activities at the Civic Center Complex will be significantly less hazardous (no steel erection, large cranes, pouring of concrete on multi-story building, etc.) Staff undertook significant research into the insurance issue including looking at going back to a traditional insurance program where the various contractors individually provide insurance and price their insurance costs into their bids for work. We learned that the largest element of the insurance costs, workman's compensation coverage would be astonishingly higher, in some cases nearly four times the cost of our locked in rate in rolling the Police facility coverage forward. Additionally, a traditional program does not provide the City with the same level of comprehensive coverage provided by the CCIP. By rolling forward the Police facility coverage, we maintain our existing ten (10) year dedicated project coverage. We have been advised by our insurance agent that by pursuing a new insurm~ce program we may not have been able to acquire the ten (10) year dedicated project coverage. This ten (10) year period is important due to HPI's contractual obligation to be responsible for their work for a period often (10) years. Also, in a traditional program there would be a large number of individual insurance providers involved with the likely results being a greater numbers of claims and increased litigation costs. The total insurance costs to the City are estimated to be approximately $3.5 million. Staff recommends that Council appropriate sufficient funds to pay for the necessary Page 15, Item: .~ Meeting Date: 2]1~03 insurance costs for the pre-construction phase ($600,000) at this time. When we return to Council to approve the GMP, we will also recommend appropriating the necessary remaining funds for insurance coverage. By waiting, we may be able to take advantage of any reduction in premium costs in the insurance market, though it appears highly unlikely that those costs will come down to the levels that we are locked in to via the rolling forward of the Police facility coverage. We also believe that we will receive a rebate on our premiums paid on the Police facility as the amount of construction related payroll that we had to insure at the outset of the project is less than had been estimated. We expect to have a very good handle on the amount of that rebate, if any, by the time we return to Council with the GMP and we can include that rebate in our future appropriations. A brief description of the insurance program is attached as Attachment 3. By appropriating these funds at this time, the total future funding necessary will be reduced to 34,127,509. It is anticipated that concurrent with the return to Council for approval of the GMP at the conclusion of the Design Development phase, staffwill present to Council a long-term financing plan for the remainder of the funds necessary to complete the project. This financing will likely include the issuance of certificates of participation. Such a borrowing would be similar to the one utilized for the construction of the new Police and Public Works Center facilities. In order to accurately size the transaction, that is to avoid borrowing insufficient funds, and to minimize borrowing costs, it is important that we wait until the GMP for the design/build contract is known before proceeding. The current project schedule dictates that this will result in issuing debt in early-mid 2004. Considering that the current maximum project cost estimate is $38,060,000, which includes full reimbursement of monies spent after this evening, a borrowing of approximately $40.0 millions would be required. The annual debt service over a thirty-year maturity would be approximately $2.5 million and would be funded by the Public Facility Development Impact Fee (89%) and General Fund discretionary resources (11%). These estimates will be further refined when staff returns with the financing plan and further yet by the time actual debt is issued. The annual lease payments for the proposed borrowing will increase the total annual debt service commitment of the City's General fund by 24% when the first full year payment is due in fiscal year 2006-07. At this time, it is projected that the General Fund annual debt service commitment will total approximately $12.9 million, or approximately 9.4% of the projected General Fund operating budget. Viewed in isolation, this percentage may be considered moderately high for a local government entity. However, it must be noted that although this amount is truly a General Fund commitment, only $5.9 million is scheduled to be paid from the General Fund resources with the remaining $7 million scheduled to be paid from various special funds, such as development fees and residential construction taxes. It should also be noted that the single largest debt service commitment of the General Fund is the $2 million payment on the Pension Obligation Bonds, which could be viewed as a fairly routine personnel operating expense, rather than debt service, thereby further reducing the "pure" debt burden on the General Fund for comparison purposes. Page 16, Item: Meeting Date: 2/18~03 ENVIRONMENTAL STATUS The Planning and Environmental Services Manager for the Community Development Department has reviewed the proposed project for compliance with the California Environmental Quality Act and City Council approved a mitigated declaration on December 8, 2000 (Case No. IS~01-017). Thus, no further environmental review or documentation is necessary. FISCAL IMPACT: Approval of this item will authorize the expenditure of $3,820,450 from the available balance of the Public Facilities Development Impact Fee Fund for project costs to be incurred between today and the time when borrowed funds are available pursuant to a long-term financing plan to be presented for approval in early-mid 2004. Attachments: Attachment 1 - Design/Build Agreement Attachment 2 - Project Management Agreement Attachment 3 - General Insurance Program Description J:\BPC\BPC AdministrationLAgenda\Civic Center\Civic Center Design Build Agreement Agenda Shttement.doc lq-h3 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE CITY MANAGER'S CERTIFICATION OF SOLE SOURCE STATUS AND APPROVING A DESIGN BUILD AGREEMENT WITH HIGHLAND PARTNERSHIP, INC. (HPI) FOR THE PROVISION OF SERVICES REQUIRED TO DESIGN AND CONSTRUCT RENOVATIONS TO THE CITY'S CIVIC CENTER COMPLEX PURSUANT TO THE MASTER PLAN, AND AUTHORIZING THE MAYOR TO EXECUTE SAiD AGREEMENT; AND APPROPRIATING $3,820,450 FROM AVAILABLE BALANCE OF THE PUBLIC FACILITIES DEVELOPMENT IMPACT FUND TO FINANCE THE PRE- CONSTRUCTION PHASE OF THE PROJECT WHEREAS, the City Council previously approved CIP project GG-139 which involves the renovation of the Civic Center Complex; and WHEREAS, a Master Plan for the renovations was approved in July of 2001; and WHEREAS, the Design Build Agreement will mark the kick-off of the implementation of that Master Plan. with the project being broken into multiple components and the duration of the project will be from four to five years; and WHEREAS, pursuant to Chula Vista Municipal Code {}2.57.030, the City Manager must certify the sole source status of the Design Builder and the City Manager does so certify based upon the following: 1. HPI and its team has specialized kno~vledge based on its preparation of the Civic Center Complex Master Plan, programming and schematic design and has demonstrated expertise in this field with the design and construction of other public facilities. 2. Referencc checks done as part of the original selection process for the CMC list resulted in Pavorable reports regarding thc work completed by HPI. 3. Time is of the essence regarding the renovation of these facilities. Space is a premium commodity in all three buildings and, notwithstanding future build-out, additional square footage is neededjust to meet existing space needs. Evidence of this is the City's reliance on temporary structures to house current staff within the Civic Center Complex. ! /q 4. HPI and its team have significant history regarding the space, programming and development needs required for the Civic Center Complex renovation. To require an RFP for this project would be a waste of this expertise. 5. The proposed sole source agreement is consistent with the intent of the priority list established as a result of the RFQ process as approved by the City Council and from which HPI was originally selected. WHEREAS, staff recommends the award of an agreement with Highland Partnership, Inc.; and WHEREAS, an appropriation of funds is needed to cover project costs until long- term financing is obtained. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept the City Manager's certification of sole soume status and approve an Agreement with Highland Partnership, Inc. for the provision of services required to design and construct renovations to the City's Civic Center Complex pursuant to the Master Plan, a copy of which shall be kept on file in the office of the City Clerk. BE 1T FURTHER RESOLVED that the Mayor is hereby authorized to execute said Agreement on behalf of the City of Chula Vista. BE IT FURTHER RESOLVED that the amount of $3,820,450 is hereby appropriated from the available balance of the Public Facilities Development Impact Fee Fund to finance the pre-construction phase of the project. Presented by Approved as to form by Andy Campbell Joh. v~/M. Kaheny t57 Director of Building and Park Construction C4ly Attorney J:\Attomey\reso\Highland DB Civic Center (February 13, 2003 (1 t:I9AM)] 2 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. Kal~ny City Attorney Dated: 2/I3/03 DESIGN BUILD AGREEMENT WITH HIGHLAND PARTNERSHIP, INC, FOR THE PROVISION OF SERVICES REQUIRED TO DESIGN AND CONSTRUCT RENOVATIONS TO THE CIVIC CENTER COMPLEX DESIGN/BUILD AGREEMENT This Agreement is made and entered into this day of 2003, by and between The City of Chula Vista (herein "City"), a municipal corporation, and Highland Partnership, Inc. ("Design Builder or D/B"). City and D/B are sometimes hereinafter referred to as Parties ("Parties"). RECITALS WHEREAS, the City of Chula Vista has experienced significant growth and is projected to reach build-out within the next twenty years; and WHEREAS, on July 10, 2001, the City Council approved the Civic Center Master Plan, which identified the anticipated needs of the City; and. WHEREAS, the City has determined in order to ensure quality service from City departments it is necessary to expand and remodel the Civic Center Complex; pursuant to the recommendations within the Civic Center Master Plan; and WHEREAS, the City conducted a competitive selection process to create a Construction Manager/Constructor/Design Builder qualified provider list; and WHEREAS, D/B successfully competed in the selection process and is deemed an approved provider of design build services to the City; and WHEREAS, the City has determined that due to the unique nature of the expansion and remodel work necessary at the Civic Center and time constraints associated with its completion, it is prudent to award this project to an approved D/B provider without further competition; and WHEREAS, the City desires to contract with a single entity for the design and construction of the Civic Center expansion and remodel, in accordance with this Agreement; and WHEREAS, Municipal Code §2.57 provides for the sole source award ora Design Build contract upon written certification by the City Manager of the sole source status of the provider; and WHEREAS, the City Manager has certified to the Council that as a result of D/B's unique performance capabilities, including its satisfactory preparation of the City of Chula Vista Civic Center Master Plan, its extensive experience in the construction and remodel of civic buildings, its extensive experience in providing design build services and its ability to complete the project within the City's time and budget constraints, the sole source award is appropriate; and 1 2/13/2003 1:12 PM J:\Attomey\EHull\Civic Ctr\DesignBId Agmt\DesignBuild Agmtl B CL2d.doc WHEREAS, the D/B has proposed to design and construct the expanded and remodeled Civic Center Complex, in accordance with City of Chula Vista Civic Center Master Plan ("Master Plan") and approved Basis of Design and is prepared to enter into this Agreement; and WHEREAS, D/B understands and acknowledges that performance of this Agreement is subject to ongoing appropriations and the ability of the City to successfully obtain long term financing; and WHEREAS, D/B understands and acknowledges that the Chula Vista City Council retains its full and sole discretion as to all future legislative actions, including whether to appropriate sufficient funds to complete this Project. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein: THE PARTIES AGREE: Section 1: General Scope of Work to Be Performed by D/B 1.1 In accordance with the terms set forth in this Agreement, D/B shall design and construct for the City: an expanded, remodeled and fully functional Civic Center Complex, which shall include the demolition, remodel and/or expansion of the Community Development Building, Legislative Building, City Hall, Public Service Building, and existing PD Building and related site improvements (referred to hereafter as "Project") as more fully described in the Master Plan (~'Exhibit 1') and Basis of Design ("Exhibit 4"). 1.2 The services to be provided by D/B are generally to be performed in four "Phases", with Phase Four consisting of components A, B, and C as more fully described in Section 8.1 of this Agreement; the services to be provided in each Phase and component are specified elsewhere in this Agreement. 1.3 The D/B shall: 1.3.1 Perform all services, work and obligations as described herein for the not to exceed Guaranteed Maximum Price ("GMP") determined pursuant to Section 6.4 of this Agreement. The GMP shall not exceed the amount of Twenty-Eight Million Eighty-one Thousand and no cents ($28,081,000) which shall include all Hard Construction Costs necessary to provide a fully completed and functional Project including, but not limited to, the cost for all labor, equipment, material, and the D/B Fixed Fee which includes fees and expenses of any type, including all expenses under this Agreement, associated with completing the Project, whether on-site or off-site, and the D/B Contingency Fund. Any costs incurred by D/B in excess of said GMP 2 2/13/2003 1:12 PM J:\Attorney\EHull~Civic Ctr\DesignB[d Agmt\DesignBuild Agmtl B CL2d.doc shall be the sole responsibility of the D/B unless a Change Order is approved by the City pursuant to Section 15 of this Agreement. All funds remaining in the GMP at completion of the Project shall belong to the City. 1.3.2 Completion Schedule 1.3.2. I DB shall commence work pursuant to Section 5 of this Agreement upon receipt of a written notice to Proceed and shall achieve completion, signified by approval of the construction documents, no later that 508 days from issuance of said Notice to Proceed. 1.3.2.2 Achieve "Substantial Completion" (as defined in {}17.1) of Phase IV component A 309 calendar days from issuance of Notice to Proceed with said component, and "Final Completion" (as defined in § 17.3) no later than 400 calendar days from issuance of Notice to Proceed. 1.3.2.2 Achieve "Substantial Completion" (as defined in § 17.1) of Phase IV component B 309 calendar days from issuance of Notice to Proceed with said component, and "Final Completion" (as defined in § 17.3) no later than 400 calendar days from issuance of Notice to Proceed. 1.3.2.3 Achieve "Substantial Completion (as defined in § 17.1) of Phase IV component C 400 calendar days from issuance of Notice to Proceed, and "Final Completion" (as defined in §17.3) no later than 491 calendar days from issuance of Notice to Proceed Section 2: General Obligations of City 2.1 City shall be obligated as follows: 2.1.1 Designate a representative ("City Representative") who is authorized to act on behalf of City with respect to the Project, except as to those decisions specified herein or by law that require authorization by the Chula Vista City Council; 2.1.2 Make decisions with reasonable promptness to avoid delay in the orderly progress of D/B's services per the Civic Center Phasing Schedule attached as Exhibit 2; 2.1.3 Pay for and cause to be completed all necessary environmental studies and obtain requisite environmental approvals and/or permits with reasonable 3 2/13/2003 1: 12 PM $:~Attorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild Agmtl B CL2d.doc lq-. 'g! promptness to avoid delay to the orderly progress of D/B's performance per the Civic Center Phasing Schedule attached as Exhibit 2; 2.1.4 At the request of D/B, City will use its best efforts to provide D/B with any available information about the Project Site, including a legal description of the Project Site, and will use its best efforts to provide D/B with the best information City has pertaining to such things as rights-of-ways, easements, existing utilities, and geoteclmical soil conditions; it will, however, be the responsibility of D/B to take all reasonable steps to verify all such information as it deems necessary to perform its services under this Agreement. City does not warranty to D/B the accuracy or completeness of any such information. 2.1.5 Cooperate with D/B in identifying, processing and securing required permits, licenses and inspections in a timely fashion; however, this duty to cooperate does not relieve D/B of its primary obligations to identify, apply for and secure all necessary pem~its (except as provided in 2.1.3), licenses and inspections in a timely manner; 2.1.6 Make payments to D/B in the amounts and in accordance with the terms set forth below; 2.1.7 Issue Certificate of Substantial Completion for each component of the Project when City reasonably determines each component of the Project has achieved Substantial Completion as defined below in Section 17.1; and 2.1.8 Issue a Notice of Acceptance when City reasonably determines the Project has achieved Final Completion as defined in Section 17.3. 2.2 City Review Process. City shall review Schematic Design Documents ("SDD"), Design Development Documents ("DDD"), and Construction Documents ("CD's") pursuant to Sections 5.3, 6.3, and 7.6 respectively. For each D/B submission, City shall have 30 days to review, approve, conditionally approve or deny. 2.2.1 Within 15 days of receipt of completed documents, City shall review and provide comment to D/B on those issues that will prevent D/B from receiving approval or conditional approval of said set of documents. 2.2.2 Within 7 days of receipt by D/B of notification of said issues that ~vill prevent D/B from receiving authorization to proceed to next phase, D/B shall submit completed or revised documents, and/or resolve said issue, and/or, at City's discretion demonstrate to City that said issues can be addressed to City's satisfaction in the subsequent phase. 4 2/13/2003 1: 12 PM J:\Attorney~EHull\Civic Ctr~DesignBId Agmt\DesignBuild Agmtl B CL2d.doc 2.2.3 At 30 days from City receipt of documents for review and approval, City shall provide D/B with complete comments which shall be addressed by D/B in the subsequent phase. Section 3: General Obligations of D/B 3.1 D/B shall be obligated as follows: 3.1.1 At all times in performing its services under this Agreement to design and deliver the best possible Project consistent with standard of care in Section 3.3 that satisfies the time, monetary, quality and design parameters set forth in this Agreement; 3.1.2 Design and construct the Project on time, consistent with time frames set forth in the Civic Center Phasing Schedule, Exhibit 2, and in such a manner that the GMP or Contract Time of the Project shall not be exceeded, but if D/B reasonably believes that any action, inaction, decision or direction being made by City or agent for the City will likely result in the GMP or Contract Time being exceeded or the Project being completed late, D/B will notify City at Project Team meeting and in writing within five (5) days of discovering such action, inaction, decision, or direction. Included in such notice will be an estimate of the cost and time impact resulting from such action, inaction, decision or direction. 3.1.3 Perform, or obtain the prior written consent of the City to subcontract all design services for the Project utilizing qualified, appropfiately licensed and sufficiently experienced architects, engineers and other professionals (herein jointly "Design Consultants"). All Design Consultants shall be listed, with their corresponding fees, on Exhibit 3. D/B shall provide to City unredacted copies of agreements between all Design Consultants and D/B. The rates for services of the Design Consultants as set forth in Exhibit 3 shall remain at the listed rate for initial 12 months and may be adjusted a maximum of 5% for each year thereafter. D/B shall not be permitted to substitute any Design Consultant unless authorized by City. The fact that the City approves the subcontracting of any such services will in no way relieve the D/B of any of its obligations or responsibilities under the Agreement; 3.1.4 Perform all construction on the Project utilizing Subcontractors appropriately licensed by the California Contractors State License Board or other required agency; 5 2/13/2003 1:12 PM J:\Attorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtI B CL2d.doc 3.1.5 Perform all services as expeditiously as is consistent with reasonable skill and care and shall complete the services within each and all of the time periods set forth in this Agreement; 3. 1.6 Be fully responsible for all additive costs, damages, and liabilities resulting from errors or omissions beyond the standard of care defined in Section 3.3 by D/B or D/B's agents, employees, design consultants and contractors; such costs, damages and liabilities shall not be chargeable to the City nor shall they be a basis for seeking an adjustment in the GMP. 3.1.7 Comply with the California Fair Employment and Housing Act and all other State, Federal and local laws including, but not limited to, those prohibiting discrimination, on account of race, color, national origin, religion, age, sex or handicap; 3.1.8 Study alt applicable laws, codes, ordinances, rules, orders, regulations, and statutes affecting the Project, including but not limited to, zoning, environmental, building, ftre and safety codes and coverage, density and density ratios and lien laws, and comply with them in performance of its services. D/B shall ensure that within the established GMP that the Project conforms to all applicable federal, state and local laws, statutes, ordinances, rules, regulations, orders or other legal requirements, (collectively "Governmental Requirements") existing as of the date of this Agreement. However, the City recognizes that Governmental Requirements and their interpretations by governmental officials ("Code Authority") are often subject to change at any time, even after issuance of a building permit. If, after the date of this Agreement, modifications to the Project are required because of a change in Governmental Requirements or their interpretation by a Code Authority which had not previously been given, or which if given, was different than a prior interpretation of a Code Authority, D/B shall make the required modifications to comply with the same. However, in the event of such an occurrence, the GMP and Contract Time may be subject to an adjustment in accordance with Section 15. Nothing contained in this paragraph shall relieve D/B of its obligations to modify the Project at its own expense where D/B has failed to construct the Project in compliance with Governmental Requirements applicable as of the date of this Agreement. 3.l .9 Take all reasonable steps during the course of the Project so as not to interfere with the ongoing operation of the adjacent residences, businesses and facilities, including but not limited to the following: 3.1.9. I Not interfere with pedestrian and vehicular access; 6 2/13/2003 1:12 PM J:\Attorncy\EHull\Civic Ctr\DesignBld Agmt~DesignBuild AgmtlB CL2d.doc 3.1.9.2 Control dust and noise in accordance with the provisions in Section 7-8.1 of the 2000 Edition of the Standard Specifications for Public Works Construction and Section 8.2.30 of this Agreement; 3.1.10 Use reasonable care to avoid damaging existing buildings, equipment and vegetation adjacent to the Project Site. IfD/B causes damage to any of this property, D/B shall replace or repair said property at no expense to City and shall not be a basis for seeking an adjustment to the GMP or Contract Time. 3.1.11 To obtain all permits necessary to complete the Project. City shall pay cost of permits. D/B shall be responsible for obtaining and paying for all permits normally obtained by the trades or subcontractors. If requested by City, D/B shall obtain separate permits, including but not limited to the following: demolition, excavation, foundation, structural portions of the building, and right of way. 3. I. 12 Conform its design to the requirements of the Americans With Disabilities Act Accessibility Guidelines ("ADAAG") and the Americans With Disabilities Act ("ADA"). 3.1.13 Conform its design to the approved City space standards, Basis of Design (Exhibit 4) and Master Plan (Exhibit 1). 3.1.14 Seek and obtain written approval from the City of the drawings for each of the following phases: (1) schematic; (2) design development and (3) construction drawings. Said approval shall be evidenced by written notice to proceed with the subsequent phase. 3~1.15 Provide cost estimating and value engineering services, which takes into consideration long-range maintenance costs, energy efficiency, and impacts on operation of the Project. The cost estimate shall include a detailed takeoff of the quantity of materials and unit prices and be presented in a format consistent with industry standard "quantity survey" practices. Provide cost estimate to the City with schematic design development and design development. Provide final cost estimate, in four copies, to the City with Construction Documents. 3.1.16 Submit a draw down schedule at contract execution and at DDD submission. 7 2/I 3/2003 1:12 PM J:\Attorney\EHull\Civic ClrSDesignBId AgmtSDcsignBuild AgmtlB CL2d.doc 3.1.17 Review soils and geoteclmical reports relating to the Project Site; and determine and advise City if any further subsurface investigations are warranted. If such further investigations are authorized by City, D/B shall perform said investigations. The costs of said investigations are Reimbursable Costs to be paid by the City without markup, pursuant to Section 14.2. 3.2 D/B agrees to fully assume all risks, and costs associated with such risks, in performing the services and meeting the obligations under this Agreement, except for the following risks which are assumed by City: 3.2.1 Design changes directed by City after written approval of each previous phase ofdesign such that the directed changes are materially different and beyond the scope of work set forth in the Master Plan and Basis of Design, all as may be modified by City provided that D/B gives City written notice, unless such design changes are required to ensure adherence to the established GMP; 3.2.2 Unanticipated subsurface site conditions 3.2.2.1 City assumes risks for unanticipated subsurface site conditions provided D/B notifies City in writing within 7 days of discovery if D/B believes it has uncovered or revealed a condition which: 3.2.2.1.1 differs materially from that indicated in'the soils and geotechnical reports furnished by City, or 3.2.2.1.2 is of an unusual nature and differs materially from conditions ordinarily encountered and generally recognized as inherent in the work required by Agreement. 3.2.2.2 Upon receipt of written notice, City shall promptly investigate and if it determines the conditions do materially differ, requiring a change in the Work, City shall commence the processing o f a Change Order pursuant to Section 15. If City determines there is no bona fide Work scope change or is a minor change which does not impact GMP or Contract Time, City shall notify D/B within 30 days. 3.2.2.3 D/B shall not be entitled to an adjustment in the GMP or Contract Time if D/B knew or should have known of the 8 2/13/2003 1:12 PM J:\Attorney\E;lull\Civic Ctr\DcsignBId Agmt\DesignBuild AgmtlB CL2d.doc existence of such conditions at the time D/B submitted and agreed to GMP or Contract Time; or the existence of such condition could reasonably have been discovered as a result of D/B's obligations pursuant to Section 3.1.17. 3.3 D~B shall perform in a mmmer consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. D/B shall cause all professional services performed under this Agreement to meet the standard of care recognized in the industry by those providing similar services. Compliance with this section by D/B shall not in any way excuse or limit D/B's obligations to fully comply with all other terms in this Agreement. 3.4 D/B warrants that at least one member of D/B shall be licensed by the California Contractor's State License Board as a General Building Contractor. D/B is to provide a list of the responsible people within their organizations performing services, which shall include their qualifications and their function, for approval by the City prior to start of construction. City and D/B have identified "key personnel" who shall remain on the Project until Final Completion (Exhibit _5). If any such "key personnel" leave the employ of D/B, City shall have the right to approve the replacement personnel. List of personnel should include those listed in Section 24. D/B shall comply with all Iicensing requirements of the State of California, County of San Diego, and City of Chula Vista. 3.5 D/B shall cooperate with City in obtaining requisite Environmental approvals and/or permits. 3.6 D/B team is to provide progress photographs taken at regular intervals throughout the Project. Photographic documentation shall depict an overview of Project site showing work in progress. Dates and times to be documented. Copies of documentation shall be transmitted to the City monthly. The costs are Reimbursable Costs to be paid by the City without markup, pursuant to Section 14.2. 3.7 D/B shall fully cooperate with City Representative and any of its agents assigned to this project. 3.8 D/B agrees and acknowledges that the City Representative is the only person with authority to approve additions or modifications to Project. Any costs or delays resulting from or associated with additions or modifications implemented without the written authorization of City Representative shall be borne exclusively by D/B and not be grounds for an increase in GMP or Contract Time unless necessary to protect public health, safety or property. Section 4: Work Restriction and Bidding Requirement 9 2/13/2003 1:12 PM J:\Attorney\EHult\Civic CtrXDesignBId Agmt\DesignBuild Agmtl B CL2d.doc 1%27 4.1 D/B, its subsidiaries, related entities, and Design Consultants shall not perform any actual construction work of any type with their own forces on the Project ("Self Performed Work"), unless specific written authorization is received from the City after completion of a selective competitive bid process. 4.2 D/B shall determine how best to package portions of the work for purposes of bidding. D/B shall be responsible for selectively bidding all construction work to others and for entering into subcontracts, in D/B's own name, with the bidder who in D/B's discretion best meets the monetary, time, and performance requirement of the Project. D/B shall be responsible for ensuring that these contracts fully comply with all applicable local, state and federal laws, some but not all of which are listed below. 4.3 D/B shall require all bidders to furnish a list of subcontractors with their bid in accordance with the requirements of the Subletting and Subcontracting Fair Practices Act, California Public Contract Code section 4100 et ~. D/B shall require all successful bidders to comply with the Subletting and Subcontracting Fair Practices Act during performance of the Work and D/B shall conduct all applicable hearings required by Public Contract Code § 4100 et seq. 4.4 D/B shall hear and decide bid protests and shall develop and maintain bid protest procedures for that purpose. City shallbe timely informed ofall bid protests (prior to resolution) and the outcome of said protests. 4.5 D/B shall decide, subject to City approval, appropriate bid, payment and performance bonds, if any, D/B will require from the bidders and those to whom D/B subcontracts the Work. Any such bonds shall name the City and D/B as obligees. 4.6 D/B shall include a detailed bidding plan within the procurement section of the Management and Implementation Plan (M and I Plan) as provided in Section 7.9. Section 5: D/B's Phase I Services and Obligations - Schematic Design 5.1 D/B's services in Phase 1 shall include, but are not limited to the following: 5.1.1 Master Plan (Exhibit 1) and Basis of Design (Exhibit 4) verification to ascertain City's project requirements including. 5.1.1.1 Meet with City Department heads to review and validate all information contained in the Master Plan. 5.1.1.2 Research and review building documentation for all existing structures I0 2/13/2003 I: 12 PM J:\AttorneySEHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d,doc lq -2g 5.1.1.3 Prepare updated Master Plan which reflects the verified assumptions and incorporates revised information. Said document shall be utilized in preparing SDD, DDD & CD's. 5.1.2 Prepare complete SDD such that the SDD include, without limitation, the following: 5.1.2.1 A site plan indicating property line; existing public streets, sidewalks, curb cuts, and other public improvements; required setbacks; service, trash, fire lane and truck access, adjacent buildings, building and parking structure outline; and site elements (fences landscape areas, etc); 5.1.2.2 Floor plans, including graphically demonstrating interior and exterior walls and fenestration; room names, structural bay spacing with grids, overall dimensions and area calculations; 5.1.2.3 Roof plans including conceptual mechanical equipment locations, conceptual mechanical screens, skylights and roof access, roof materials, conceptual roof drainage and establish window washing concept; 5.1.2.4 Site sections including existing and proposed grade profile and relationship to major site elements and public ways. 5.1.2.5 Building sections including vertical dimensions, floor assembly thickness showing known structural elements, proposed ceiling heights; 5.1.2.6 Exterior elevations including material references and extent; any known visible rooftop elements; existing and new line of grade; indication of floors with leader lines; and vertical dimensions; 5.1.2.7 Wall sections including typical walls, conceptual dimensions, horizontal element offsets, and guide to exterior face of wall; conceptual dimensions, vertical floor to floor, floor to window head and sill and floor to ceiling; interior and exterior wall finishes; and wall and roof assembly; 5.1.2.8 Outline specifications, written description of building systems and components including project data, site work, and any special equipment; ll 2/13/2003 1:12 PM J:\Attomey\EHull\Civic Ctl\Designl~ld Agmt\DesignBuild Agmtl B CL2d.doc 5.1.2.9 Code compliance review including building construction type, occupancy, sprinkler requirements, exiting, zoning and other agency conformance and ADA; 5.1.2.10 Delivery ora massing model, 3D rendered images, and color and material boards. 5.2 Prepare and submit to City detailed cost estimate with SDD. Said cost estimate shall include an FF&E Matrix (Exhibit 10) delineating the Parties FF&E obligations. Said FF&E Matrix shall include budgeting information for those items for which D/B is responsible and contained in GMP. 5.3 Submit completed SDD to City. Obtain co~mnents from City and make revisions to SDD as required. Obtain written approval or written conditional approval from City to proceed to Phase II services. If conditional approval is granted, D/B shall address all City comments or issues in the next set of drawings submitted to the City. City retains the right to withhold approval and require a resubmittal of the SDD. Any delay or additional costs resulting from the resubmittal shall be borne exclusively by D/B and not be grounds for an increase in the GMP or Contract Time. Section 6: D/B's Phase II Services and Obligations-Design Development 6. l D/B's services in Phase Il shall include, but are not limited to the following: 6. i. 1 Continue to develop and refine project requirements and review such requirements with the City. 6.1.2 Prepare complete Design Development Documents ("DDD") such that the DDD include, ~vithout limitation, the following: 6.1.2.1 Site plan indicating property line; existing public streets, sidewalks, curb cuts, other public improvements; required setbacks; service, trash, tim lane and truck access (including notes and dimensions), adjacent buildings, building and parking structure outline; and site elements (fences, landscape areas, etc); notes; 6.1.2.2 Floor plans including graphically demonstrating interior and exterior walls and fenestration with notes, dimensions and gfidlines; room names, structural bay spacing with grids, critical dimensions and area recalculations; 12 2/13/2003 1:12 PM J:\Attomey\EHull\Civic Ctr\DesignBld Agmt\DesignBuild AgmtlB CL2d doc 6.1.2.3 Roof plans including detailed notes, dimensions, mechanical equipment locations, define material for mechanical screens, skylights and roof access, roof materials, roof drainage and establish window washing concept; 6.1.2.4 Building sections including vertical dimensions, floor assembly thickness showing known structural elements, notes and dimensions. 6.1.2.5 Exterior elevations including material references and extent; visible roof top elements; existing and new line of grade; indicate of floors with leader lines; and vertical dimensions; notes, dimensions and grid lines. 6.1.2.6 Wall sections including all wall sections, dimensions, horizontal element offsets, and guide to exterior face of wall; dimensions, vertical floor to floor, floor to window head and sill and floor to ceiling; structural elements and assemblies; interior and exterior wall finishes; and wall and roof assembly; 6.1.2.7 Outline specifications, written description of building systems and components including site work, room finishes, FF&E, product cut sheets, and special equipment. 6.1.2.8 Verify all code compliance including building construction type, occupancy sprinkler requirements, existing, zoning and other agency conformance and ADA. 6.1.2.9 Delivery of 3D rendered images, color and material boards, reflected ceiling plans, and special system or equipment plans. 6.1.2.10 Prepare and submit for approval an FF&E Matrix delineating the Parties FF&E obligations. Said FF&E Matrix shall be cross-referenced against the Room Data Sheets. Said Matrix shall be fully costed for those items designated as D/B's responsibility. 6.2 Prepare and submit to City detailed cost estimates with DDD. 13 2/13/2003 I: 12 PM J:\Atlorncy\EHull\Civic Ctr\DesignBld Agmt\DesignBui[d Agmtl B CL2d.doc tq 6.3 Submit completed DDD to City. Obtain comments from City and make revisions to DDD as required. Obtain written approval or conditional approval from City to proceed to Phase III Services. If conditional approval granted, D/B shall address all City comments or issues in the next set of drawings developed. City retains the right to withhold approval and require resubmittal of the DDD. Any delay or additional costs resulting fi.om the resubmittal shall be borne exclusively by D/B and not be grounds for an increase in the GMP or Contract Time. 6.4 Upon the approval of the DDD, D/B shall, within four (4) days, submit a GMP for approval by City. The GMP shall include all Hard Construction Costs (including those portions of FF&E for which D/B is responsible pursuant to FF&E Matrix), D/B Contingency Fund, and D/B Fixed Fee for the complete design and construction of the entire Project as specified in the approved DDD; provided that: 6.4.1 The GMP shall not exceed $28,081,000. 6.4.2 Said GMP shall be supported by a detailed itemized breakdown that shows: the D/B Fixed Fees and the expected Hard Construction Costs for each of the major trades on the Project which will include labor, material expenses, equipment costs, FF&E for which D/B is responsible and a reasonable D/B Contingency Fund. Said D/B contingency fund shall not exceed 5% of the Hard Construction Costs. 6.4.3 All Hard Construction Costs included in the GMP are for direct Construction costs incurred in performing the work, including taxes, delivery and installation. City shall reimburse D/B for the exact amount of the direct self-performed work, subcontract or invoice amount. No markup, handling fees, overhead, or other charges are to be added or paid. Upon Final Completion of the Project, any amount of Hard Construction Costs or D/B Contingency Fund monies not utilized shall result in a deductive Change Order. 6.4.4 The GMP shall include a D/B Contingency Fund which can be used by the D/B with City approval. If the Parties mutually agree that there is a sufficient surplus, the D/B Contingency Fund will be available to provide additional funds for Change Orders as provided for in Section 15 of this Agreement. This Contingency Fund will not be available for: (1) Work required due to D/B's and/or Contractors' failure to perform according to the terms of this Agreement and/or in compliance with the Construction Documents, or (2) uninsured losses resulting from the negligence of D/B or its Contractors. All change orders, including zero dollar change orders, which require the use of the D/B Contingency Fund, shall require City 14 2/I 3/2003 1:12 PM J:\Attorney\EHull\Civic Ctr\DesignBId Agmt~DesignBuild Agmtl B CL2d.doc approval. The City reserves the fight to seek reimbursement for any funds used due to errors or omissions of the Design Consultants. 6.4.5 Prepare, with the cooperation of the City, alternate bid items to assist in meeting the GMP; 6.5 If the City approves the DDD's, an agreement is reached regarding the GMP, the City is successful in obtaining long term financing, the Chula Vista City Council appropriates, in their full and sole discretion sufficient funds and the City Council authorizes the project to proceed upon written direction from the City, D/B shall timely prepare CD's. Section 7: D/B's Phase III Services and Obligations - Construction Documents 7.1 D/B's services in Phase Iit shall include but are not limited to the following: 7.l.1 D/B shall continue to develop and refine project requirements and review such requirements with City; 7.1.2 D/B shall prepare CD's which shall include, without limitation, the following: 7.1.2.1 Architectural plans and details, including: 7.1.2.1.1 Site plan indicating general location and nature of on- site and the necessary off-site improvements. 7.1.2.1.2 Floor plans, including roof, showing space assignments, sizes, and location of installed or fixed and movable equipment which affects the design of the spaces. 7.1.2.1.3 Building elevations indicating exterior design elements and features, including fenestration arrangements, materials, mechanical and electrical features appearing on the walls, roofs, and adjacent areas. 7.1.2.1.4 Interior elevations to establish functional requirements, equipment, and all systems locations. 7.1.2.1.5 Typical building sections showing primary structural members, dim6nsions, and accommodation of functional systems. 15 2/13/2003 !: 12 PM J:\Attorncy\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc 7.1.2.1.6 Typical wall sections sufficient to indicate materials, openings, and major features. 7.1.2.2 Structural drawings including plans and sections of sufficient clarity and detail to show the extent and type of structural system and dimensions, final structural design criteria, foundation design criteria, preliminary sizing of major structural components, critical coordination clearances and applicable material lists. 7.1.2.3Mechanical plans and details; 7.1.2.4 Electrical plans and details; 7.1.2.5 Plumbing plans and details; 7.1.2.6 Plans showing installation of major systems, equipment, fixed furnishings and graphics; 7.1.2.7 Technical specifications; 7.1.2.8 AIl other technical drawings, schedules, diagrams and specifications, to set forth in detail the requirements for construction of the Project which, at a minimum, include: 7.1.2.8.1 Provide inforn~ation customarily necessary for the use of those in the building trades; 7. 1.2.8.2 Include documents customarily required to obtain regulatory agency approvals; 7.1.2.8.3 Provide color board and architectural rendering for required presentations. 7. I.2.9 Mechanical design documentation consisting o f continued development and expansion of schematic mechanical design consisting of: 7.1.2.9. l Single line layouts and the approximate sizing of all equipment and capacities, preliminary equip~nent layouts. 7. 1.2.9.2 Required space requirements for the equipment, required chases and clearances, acoustical and vibrations control, visual impacts and energy conservation measures. 16 2/13/2003 1:12 PM J:\Attomey~Ellull\Civic Ctr\DesignBId Agmt\DcsignBuild AgmtlB CL2d.doc Iq- q 7.1.2.10 Electrical design documentation consisting of continued expansion of the schematic electrical design consisting off 7.1.2.10.1 Criteria for lighting, electrical, communications audio visual, close circuit T.V., lighting controls and other electrical systems typical to civic facilities, the approximate sizes and capacities of major components transformers-panels-switch gears; 7.1.2.10.2 Preliminary equipment layouts, required space for equipment, required chases and clearances. 7.1.2.11 Sections through critical areas showing coordination of architectural, structural, mechanical and electrical elements. 7. 1.2.12 Final specifications, including but not limited to the following: 7.1.2.12.1 Architectural: general description of the construction, including interior finishes, types and locations of acoustical treatment, typicaI and special floor coverings and final exterior and interior material selection; 7.1.2.12.2 Mechanical: description of air conditioning, heating and ventilation systems and controls, ducts, and piping system; 7.1.2.12.3 Electrical: description of electrical services, including voltage, type and number of feeders, lighting systems, including lighting levels and audiovisual, security-fire alarms and cable antenna television systems; 7.1.2.12.4 Other: Such other documents to fix and describe the size, quality and character of the entire Project, its materials, and such other elements as shall be appropriate. 7.1.2.13 Plumbing drawings including location and quantity of fixtures, equipment sizes, room sizes for plumbing equipment, and final specifications as appropriate. 7.2 D/B shall determine and establish the sequence of construction, and if appropriate, identify separate bid packages to accomplish phased construction of the Project. 7.3 D/B shall prepare a detailed Critical Path Method schedule for all construction components of the Project (" Detailed Construction Schedule") utilizing Microsoft 17 2/13/2003 I:12 PM J:\Attorncy\Etlull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc Iq Project software, showing all major milestones, bid dates for the major bid packages, commencement of construction, sequence of construction, completion of structural elements, completion of the exterior of the building, and date building will be available for installation of furniture, fixtures and equipment to begin, all of which shall conform with the dates of Substantial Completion and Final Completion of Project. 7.4 Review as needed the CD's with the governmental authorities having jurisdiction over the Project. 7.5 Notify City within seven (7) days in writing whenever D/B reasonably believes that the cost of the Project is likely to exceed the GMP or Contract Time and include in said notice: 7.5.1 An itemized cost breakdown estimate; 7.5.2 A list of recommended revisions which D/B believes will bring Project within the GMP; 7.5.3 Assist City in reviewing the itemized cost breakdown and recommend revisions so that City can revise the scope of the Project so that the GMP is not exceeded. 7.5.4 Provide a master accounting system and matrix on Microsoft Excel that will be updated, expanded and provided to the City monthly as the Project develops. 7.6 Submit and obtain approval from City of Phase III items. Provide written confirmation that the project is still within the GMP and can be built in accordance with the Detailed Construction Schedule. Said written confirmation shall include an accounting of all costs and expenses incurred to date against the GMP. Obtain written approval from City to proceed to Phase IV. 7.7 City and D/B may mutually agree in writing that D/B may contract for or perform certain limited Phase iV services during earlier phases to expedite completion of the Project, for such tasks as, for example, demolition of the buildings and relocation of utilities, and other critical path activities to meet the Master Construction Schedule. However, absent such written agreement, D/B shall not proceed with any Phase IV services until the City issues a written Notice to Proceed with Phase 1V. 7.8 Prepare a detailed description of all necessary procedures and methods, including a detailed description of the quality control program and D/B safety program to be utilized by D/B in performing its services under Phase 1V of this agreement 18 2/13/2003 1:12 PM J:\Attomcy\EHull\Civic Ctr\DesignBId Agmt\DcsignBuild Agmtl B CL2d.doc ("Management and Implementation Plan" or "M & I Plan"). 7.9 Present to the City for approval the following M & I Plan, Construction Documents, Detailed Construction Schedule, FF&E Matrix of Responsibilities fully costed for those items for which D/B is responsible, and a detailed cost breakdown. 7.9.1 Upon presentation by D/B to the City of the items specified in Section 7.9, the City may: 7.9.1.1 Approve the Construction Documents, M & I plan and Detailed Construction Schedule, and authorize DFB to proceed with Phase W services; or 7.9.1.2 Determine not to proceed with the Project and terminate this Agreement in accordance with Section 26.4 of this Agreement; or 7.9.1.3 Direct D/B to revise and resubmit documentation submitted to City required by Section 7.9 which does not conform to previously approved direction of City Any delay or additional costs resulting from the resubmittal shall be borne exclusively by D/B and not be grounds for an increase in the GMP or Contract Time. Section 8: D/B's Phase IV Services and Obligations - Construction Administration 8.1 After City formally approves any required cost estimates, Construction Documents, M & 1 Plan and Master Construction Schedule and DB obtains all required government issued pemfits, City shall issue to D/B a written Notice to Proceed with Phase IV. 8.1.1 Phase IV shall consist of 3 separate and distinct components as described herein and more fully in the Master Plan, Section 7, Phasing. 8.1.1.1 Component A shall include the minor tenant improvements necessary to make the existing police building functional for its intended purpose which is the temporary relocation of all current City Hail occupants to the existing Police building, refurbishment and construction of the City Hall Building consistent with the approved CD's, Master Plan, Basis of Design, and FF&E Matrix, and relocation of appropriate departments into the refurbished City Hall. 8.1.1.2 Component B shall include the relocation of all occupants of the Public Services Building ('PSB") refurbishments of PSB including 19 2/13/2003 1:12 PM J:\Attorney\EHull~Civic Ctr\DcsignBId Agmt\DesignBuild Agmtl B CL2d.doc all office space, the Council Chambers, and all site work immediately surrounding PSB, as well as all site work necessary to improve the Council Chambers parking lot, cqnsistent with the approved CD's, Master Plan, Basis of Design and FF&E Matrix, and relocation of appropriate departments and staff into the refurbished PSB. 8.1.1.3 Component C shall include the relocation of any and all occupants of the existing Police Building, refurbishment of the Police Building, relocation of appropriate staff into the refurbished building, all site work immediately surrounding the building as well as all site work necessary to improve all parking lots and Civic Drive, and demolition of the Community Development Building and Legislative offices and all associated site work, consistent with the approved CD's, Master Plan, Basis of Design and FF&E Matrix. 8.2 D/B's services for each Component of Phase IV shall include but is not limited to the following: 8.2.1 Perform all obligations set forth in M & I Plan and any other obligation required to complete the project to the City's satisfaction. 8.2.2 Provide administration and coordination of the services provided in Phase IV; 8.2.3 Provide estimating and value engineering services throughout Phase IV; 8.2.4 Prepare all necessary documents for bidding Work and submit to City for approval 14 days prior to bid deadline, including but not limited to: 8.2.4.1 Instructions to bidders; 8.2.4.2 General and special conditions; 8.2.4.3 Form of bid; 8.2.4.4 Form of bonds. 8.2.5 Comply with the Master Construction Schedule for construction of the Project; 2O 2/13/2003 1:I2 PM J:~Attorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild Agmtl B CL2d.doc 8.2.6 Review the Construction Documents with City on a regular basis throughout Phase 1V and provide the City with six sets of the Construction Documents; 8.2.7 Give routine progress presentations to City; 8.2.8 Submit Construction Documents to the City for plan check, and make any changes therein as said department may la~vfully require. Obtain general building permit and all ancillary permits and licenses, including but not limited to, demolition permits and grading permits; 8.2.9 Cause the appropriate professionals to stamp and sign as required the original Construction Documents or parts thereof and coordinate the design with utility companies; 8.2.10 Provide City with weekly progress reports; 8.2.11 Prepare and submit to City for review separate bid packages as D/B determines appropriate to enable the construction of the Project to proceed in an efficient and cost effective manner; 8.2.12 Conduct selective bidding for the respective bid packages, including any proposed self performed works, after City's review, in accordance with Section 4 and the M & 1 Plan; 8.2. l 3 D/B shall require additive alternates for extended warranty in bid packages. 8.2.14 Schedule and conduct pre-bid conferences to answer questions posed by bidders; said answers and any other information required to provide clarification to the Construction Documents during the bidding process shall be issued as written addenda and provided to all prospective invited bidders; 8.2.15 Analyze all bids and award subcontracts to the bidder best meeting the monetary, time, and performance requirements of the Project. Update and expand itemized cost breakdown estimate described in Paragraph 7.6 and provide bid breakdown at a minimum to each trade involved, sufficient for the purpose of progress billing for construction. City shalI be present at bid opening and shall be consulted with regarding the selection of all subcontractors; 8.2.16 Execute subcontracts, in D/B's own name, with the bidder best meeting the monetary, time, and perforn~ance requirements of the Project; 21 2/13/2003 1:12 PM .l:~Attorncy~EHt~II\Civic Ctr~DesignBId Agmt\DesignBuild Agmtl B CL2d.doc 8.2.17 Perform construction management and administration services during the constmction of the Project; 8.2.18 Be responsible for and coordinate all construction means, methods, techniques, sequences and procedures; 8.2.19 Coordinate scheduling of bid packages, submittals, and all design and construction of the Project to ensure the efficient and orderly sequence of the construction of the Project. Monitor and report to the City on actual performance compared to schedule; 8.2.20 Give all notices and comply with laws, ordinances, rules, regulations, and lawful orders of public authorities relating to the Project; 8.2.21 Provide timely review and approval of shop drawings, samples of construction materials, product data, schedule submittals, and other submittal for compliance with the Construction Documents; keep City advised of all such matters being reviewed and approved by D/B; 8.2.22 Issue responses to Requests for Information, substitution requests, and Change Order requests. Provide City with copy of all correspondence within twenty-four (24) hours of receipt. Conduct weekly review meetings with City to discuss these items. All change orders, including zero dollar change orders which require the use of D/B Contingency Fund, irrespective of impact on GMP and Contract Time shall require City approval; 8.2.23 Establish and maintain a quality control program with appropriate reviews and independent testing procedures to ensure compliance with the Construction Documents; 8.2.24 Coordinate all required inspections in such a manner that the progress of construction is not affected or impacted; 8.2.25 Correct any work which does not conform to the Construction Documents; 8.2.26 Keep City informed of the progress and quality of the design and construction of the Project; 8.2.27 Be responsible for and coordinate procurement and installation of FF&E as generally described in Master Plan (Exhibit 1), Basis of Design (Exhibit 4) and the approved FF&E Matrix. D/B shall recommend for reuse and 22 2/13/2003 1:12 PM J:\Attorncy\EHull\Civic Ctr\DesignBld Agmt\DesignBuild Agmtl B CL2d.doc coordinate installation of all existing FF&E that is D/B's responsibility under this Agreement. 8.2.28 Pay royalties and license fees. D/B shall defend suits or claims for infringement of patent rights and shall defend and hold City and City's agents harmless from loss on account thereof, except that City shall be responsible for such loss when a particular design, process or product of a particular manufacturer is required by City. However, ifD/B has reason to believe the use ora required design, process or product is an infringement of a patent, D/B shall be responsible for such loss unless such information is promptly given to City in writing; 8.2.29 Ensure Project is maintained in a clean, neat, sanitary and safe condition free from accumulation of waste materials or rubbish. Prior to Final Completion, D/B shall cause to be removed from and about the Project all tools, construction equipment, machinery, surplus materials, waste materials and rubbish; 8.2.30 Develop a mutually agreed upon program to abate and minimize noise, dust, and disruption to access for parking and services at all times for adjacent business entities and residences; 8.2.31 Establish and monitor procedures to control on-site noise, dust and pollution during construction to include limits of noise during events to comply with current Municipal Code requirements; 8.2.32 Provide City with a Detailed Construction Schedule on Microsoft Project software within fourteen (14) working days after receiving Notice to Proceed with Phase IV, provide updated versions of Master Construction Schedule on a monthly basis, and provide immediate notice of any impact on critical path items; 8.2.33 Review payment requests from all subcontractors, material suppliers and others in contractual privity with D/B with designated City representative prior to including any such payment requests in D/B's certificate and application for payment to City; 8.2.34 Conduct and prepare minutes for weekly Project team meetings with City and appropriate design and construction members; 8.2.35 Maintain a complete and up-to-date set of Construction Documents in the Projects field office at all times during construction which reflect all changes and modifications, and at the end of construction prepare for City a 23 2/13/2003 1:12 PM J:\Attorney\EHull\Civic Ctr\DesignBld Agmt\Des/gnBuild AgmtlB CL2d doc complete set of Project documents, along with four reproducible, and one electronic set of drawings depicting As-Built conditions for Project; 8.2.36 Notify City in writing when D/B believes that each component of the Project has achieved Substantial Completion, participate with City in inspecting the completed construction, prepare punchlists, and cause the punchlist items to be performed and/or corrected in accordance with the Construction Documents; 8.2.37 Assemble and deliver to City upon Final Completion all records, documents, warranties, bonds, guarantees, maintenance/service contracts, and maintenance and operating manuals; 8.2.38 Notify City in writing when D/B believes that the Project has achieved Final Completion; 8.2.39 Inspect the Project during the one-year general building warranty period, identify items requiring repair, and oversee those repairs. Inspect the each component at 180 and 360 days after Final Completion of said component and prepare reports to City, develop budgets and direct all repairs. 8.3 Unless the D/B receives the City's prior approval to substitute equal or better quality materials, the D/B warrants to City that materials ~nd equipment incorporated in the Project will be new, unless otherwise specified, and that the Project will be of good quality, free from faults and defects, and in strict conformance with the Construction Documents and in accordance with Section 22. Section 9: INTENTIONALLY OMITTED. Section 10: Additional Services 10. I City will have the right to direct D/B to perform Additional Services beyond those specified in this Agreement. D/B may provide Additional Services only if authorized in writing, in advance, by City and after complying with Section 10.3. The City may propose changes to the Work of a subcontractor after the bid has been awarded, in the event ora change of this nature, D/B will estimate the cost of the Change Order, assist City in developing drawings and specifications as necessary, solicit a revised bid, negotiate with the subcontractor, present a recommendation for a Change Order to City, and implement construction as approved by City. 10.2 For Additional Services which increase thc Hard Construction Costs, design costs, or other reasonably necessary costs of the Project, D/B will not be paid an additional D/B fee for the first Five Hundred Eighty Thousand dollars ($580,000) worth of Additional Services, but will be 24 2/13/2003 1:I2 PM J:\Attorney~EHull\Civic Ctr\DcsignBId Agmt\DesignBuild Agmtl B CL2d.doc paid 3% of such costs as the D/B Fee for additional services above the first $580,000 dollars authorized by City. For additional services, ~vhich result in an extension of the Substantial Completion date, D/B shall be paid a fee equal to the number of working days the Substantial Completion date is extended multiplied by the daily proration of the general conditions fee included within the GMP. 10.3 If at any time D/B contends that it is being asked to perform Additional Services, it shall give City written notice 7 days prior to performing said services indicating that D/B intends to seek additional compensation beyond the D/B Fixed Fee. Furnishing advance written notice shall be a condition precedent to being able to seek additional compensation from City. Section 11: Bonds 1 I. 1 D/B shall furnish performance and payment bonds with the names of the obligees designated as the City in the amount set forth below or as otherwised approved by City, as security for the faithful performance and payment of all D/B's obligations under the Agreement. These bonds shall remain in effect at least until thirty (30) days after the filing date of Notice of Completion, except as otherwise provided by law or regulation, by this Agreement, or as approved by City. D/B shall also furnish such other bonds as are required by this Agreement. I 1.1.1 The performance bond shall be in the amount of 100% of the GMP. 11.1.2 The payment bond shall be in the amount of 100% of the Hard Construction Costs. 11.2 All bonds shall be in the form prescribed by City and by such sureties which are admitted insurers in the State of California and are subject to regulation by the Department of Insurance, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certi fled copy of such agent's authority to act. Surety companies must be duly licensed or authorized in thejurisdiction in which the Project is located to issue bonds for the limits so required. 11.3 If the surety on any bond furnished by D/B is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located, DfB shall within seven (7) days thereafter substitute another bond and surety, which must be acceptable to City. I 1.4 Bond premiums are a Reimbursable Cost for which the D/B will be reimbursed, without markup, pursuant to Section 14.2. 25 2/13/2003 1:12 PM J:XAttorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc I2. Insurance 12. I The insurance provisions herein shall not be construed to limit D/B's indemnity obligations contained in this Agreement. 12.2 Insurance Policy Requirements - D/B shall maintain the Contractor Controlled Insurance Program ("CCIP") as required under this Section. The cost of the CCIP shall be paid directly by City. Except as provided in Section 25, all insurance shall be maintained continuously during the life of the Agreement and at all times thereaRer when D/B may be correcting, removing, or replacing Defective Work, but D/B's liabilities under this Agreement shall not be deemed limited in any way to the insurance coverage required. 12.3 D/B shall cause the purchase and maintenance of the CCIP, at such coverage and amounts as provided herein or if determined by City that the CCI]? is not in the City's best interest, D/B shall procure and maintain a traditional insurance program including all coverages identified below at the limits described herein or others as may be approved City in its sole and unfettered discretion. 12.3.1 General - The D/B will insure this Project under a Project Specific CCIP. The D/B, through its CCIP shall provide certain insurance coverage for the D/B, their Contractors, and all tiers of Contractors who are engaged in the performance of Work. The D/B and each Contractor shall enroll in the CC1P using forms provided by the D/B. All insurance underwriting, payroll, rating or loss history information requested of the D/B or Contractor by the CCIP agent, must be provided within seven (7) days of the request. D/B or Contractor(s) shall not be pemfitted to Work on the Project until they are enrolled in the CCIP and certified by the D/B's CCIP insurance agent. At all times of this Agreement, Contractors shall cooperate with D/B's CCIP insurance agent(s) and insurer(s). The coverage provided through the CCIP shall include General Liability Insurance, Workers Compensation, Employer's Liability Insurance and Excess Liability Insurance. The CC1P shall not be extended to include Builder's Risk, Professional Liability and Errors and Omissions Insurance. The insurance coverage provided by the D/B shall apply to the operations of each insured at the Project Site and off site risk associated with the Project as defined in the CCIP insurance policies. 12.3.1.1 The CCIP is not intended to provide a complete insurance program to the D/B and Contractors. They will need to provide additional coverage as each deems necessary for its own account, at its own expense and through its own efforts. Additionally, owned, non-owned and hired auto liability 26 2/13/2003 1:12 PM JSAttomey\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d doc insurance shall be separately maintained by D/B and contractors. 12.3. 1.2 The separate coverage provided by the D/B shall be subject to the terms, conditions and other provisions including exclusions and limitations of any nature whatsoever contained in the CCIP. 12.3.1.3 Insurance coverage provided by the D/B under the CCIP shall not extend to the activities or products of D/B, Contractors of any tier, suppliers, material men, vendors, haulers, truckers and "owner/operators" whose employees perform no on-site Work and/or are engaged solely in the delivery, loading, unloading, stocking, or hauling of equipment, supplies or materials. The CCIP is to provide coverage for all employees of D/B and Contractors of any tier working on the Policy Site, as defined in the policies. D/B and Contractor employees not normally engaged at the Policy Site, (such as delivery men, truckers, haulers, etc.) and others who occasionally visit the Policy Site, and whose compensation is not normally part of the field payroll are excluded from the CCIP. Such persons may be required, by mutual consent of D/B and City, to provide evidence of their own insurance, as specified in Section 12.3.3 of this Agreement, before access to the Project Site is allowed. 12.3.l.4 Ail dividends or refunds payable under the programs and policies of insurance obtained pursuant to the CCI]? shall belong to the City, and any proceeds there from are assigned to the City. The D/B and Contractors of any tier, at the request of the City, will execute and deliver to the City any release,, assignment, direction or authorization which the City or any insurance company may require for such purpose. 12.3.1.5 Elimination of Duplicate Insurance: The D/B and Contractors shall bid both with the cost of any insurance included in and eliminated from their bids. Cost for insurance which duplicates that provided by the CCIP shall not be reimbursed or paid by City. 12.3.1.6 Exclusion from or Termination of CCIP: The City reserves the option to exclude the D/B or any Contractor from the CCIP or to terminate the CCIP, in whole or in part, at any 27 2/13/2003 1:12 PM J:\Attorney\E}lullXCivic Ctr\DcsignBId Agmt\DcsignBuild AgmtlB CL2d.doc time upon thirty (30) days written notice to the D/B. Should the City choose to do so, the D/B and all Contractors shall obtain insurance for such coverages and amounts and subject to such terms as the City may direct. In such event, there shall be allowed to the D/B an equitable adjustment in the GMP. The D/B shall provide to the City such information or records as may be required or helpful in determining the increased or decreased cost to the D/B. 12.3.1.7 Deductibles: The City reserves the option to require that CCIP policies contain deductibles. City reserves the right to modify the deductibles for specific types of coverage only after consultation with the D/B 12.3.2 The CC1P shall include the following coverage which is to be provided by the D/B: 12.3.2.1 Commercial General Liability. The policy shall name D/B, all tiers of Contractors, as named insureds, and City, its elected appointed officers and employees as additional insureds. Commercial General Liability insurance covering Bodily Injury, Personal Injury and Property Damage Liability shall be in an amount of not less than $2,000,000 per occurrence and $4,000,000 annual aggregate. The insurance shall be written on the 1986 ISO occurrence form, as may have been amended from time to time, with broad form coverage extensions. The addition of insureds shall not operate to increase such limit. Coverage shall continue until 12:01 AM Pacific Time on the day following expiration of the one year warranty period specified in Section 22 of this Agreement. Except that products/Completed Operations Liability coverage shall continue in force for a period of ten (10) years after acceptance of the Work by the City. 12.3.2.2 Workers Compensation/Employers Liabilitv. The D/B and all tiers of Contractors shall be covered under the applicable laws of the State of California relating to Workers Compensation or Employers Liability Insurance, for all of their employees working on the Project Site, as iris defined in the CC1P policies. The D/B and each Contractor shall be 28 2/13/2003 1:12 PM J:\Attorney~El-lull\Civic Ctr\DesignBId Agmt\DcsignBuild AgmtlB CL2d.doc issued a separate Workers Compensation and Employers Liability policy which shall continue until 12:01 AM Pacific Time on the day following the expiration of the one (1) year warranty period. Employers Liability limits shall be: Bodily injury by accident $2,000,000 aggregate. Bodily injury by disease $2,000,000 policy limit. Bodily injury by disease $2,000,000 each employee. 12.3.2.3 Excess Liability. The D/B will provide Excess Liability policies affording $10,000,000 limits in excess of the General Liability and Employers Liability limits afforded on the primary policies. The coverage will generally be subject to the same terms, conditions and exclusions found in the primary policies. 12.3.2.4 Builders Risk Property Insurance 12.3.2.4.1 A policy of"all risk" Builders Risk Insurance will be provided by the City's under its existing policies I2.3.2.4.2 The insurance provided by the City will not cover any equipment, machinery, tools, or property of similar nature owned, rented or used by the D/B or Contractors of any tier which are not destined to become a permanent part of the insured Project. However, the insurance shall provide coverage for property in transit and located in off-site storage which are destined to become a permanent part of the insured project. 12.3.3 The following coverage shall be provided for Work not covered by the CCIP, provided, however, that upon the mutual consent of the D/B and City, Contractor's Pollution Liability, Professional Liability and Hazardous Transporters Pollution Liability called for in Sections 12.3.3.5, 12.3.3.6 and 12.3.3.7 of this Agreement, may be covered under the CCIP. 12.3.3.1 Automobile Liability. The D/B and Contractors of any tier shall provide a policy or Certificate of Automobile Liability 29 2/13/2003 I: 12 PM J:~Attorney~EHull\Civic Ctr\DesignB[d Agmt\DcsignBuild Agmtl B CL2d.doc //4-'/7 Insurance evidencing coverage in an amount not less than $1,000,000 Combined Single Limit per accident, covering bodily injury and property damage for owned, non-owned and hired automobiles, and name the City, its elected and appointed officers, employees, and agents as additional insureds. Contractor's policy should further be amended to name D/B as additional insured. 12.3.3.2 Workers Compensation/Employers Liability Insurance 12.3.3.2.1 Each and every Contractor of any tier shall provide at its expense Workers Compensation Insurance and Employer's Liability Insurance, for all of their employees, who are not normally engaged in Work at the Project Site and whose compensation is not part of the field payroll or who are otherwise excluded under the CCl]?. 12.3.3.2.2 Policy limits shall be: Bodily injury by Accident $1,000,000 each accident Bodily injury by Disease $1,000,000 each employee Bodily injury by Disease $1,000,000 policy limit 12.3.3.3 Contractors Pollution Liability 12.3.3.3.1 If the D/B or its Contractors' Work includes cleanup, removal, storage, or otherwise handling of hazardous or toxic chemicals, materials, substances, or any other pollutants, Contractor shall provide at their expense Contractors Pollution Liability Insurance appropriate to cover such activities in an amount not less than $3,000,000 Combined Single Limit per occurrence/aggregate for bodily injury, property damage and remediation. 12.3.3.3.2 Claims made policies will include a five (5) 30 2/13/2003 1:12 PM J:\Attorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild Agmtl B CL2d.doc lq 4/7' year Extended Claims Discovery Period applicable to this Agreement, if reasonably available. I2.3.3.3.3 The policy for this insurance shall include Contractual Liability coverage. Such policy shall be endorsed to specifically provide for Work performed under the Agreement. 12.3.3.3.4 The D/B or its Contractors of any tier shall furnish to the City a policy or Certificate of Contractors Pollution Liability Insurance in which the City, its elected and appointed officers, employees, and agents, and the D/B are named as additional insureds. The policy or Certificate must plainly designate the nan~e of the Project, name of the Disposal Site, and the permits secured for its disposal. This Certificate must be furnished to the City, evidencing compliance with the outlined requirements, prior to the D/B or Contractor beginning their Work on the Project. Any failure to furnish this policy or Certificate of Insurance shall not relieve the D/B or Contractor from their obligations under this Section. 12.3.3.4 Hazardous Transporters Pollution Liability 12.3.3.4.1 If the D/B's or its contractors' Work includes transportation of hazardous or toxic chemicals, materials, substances or any other pollutants the D/B or its Contractor of any tier shall provide, at their expense, Transporters Pollution Liability Insurance in an amount not less than $3,000,000 Combined Single Limit per occurrence/Aggregate for bodily injury, property damage and remediation. 12.3.3.4.2 Claims Made policies will include a five (5) year Extended Claims Discovery Period applicable to this Agreement, if reasonably available. 31 2/13/2003 1:12 PM J:\Attorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild Agmt[ B CL2d.doc 12.3.3.4.3 Such policy shall be endorsed to specifically provide coverage for Work performed under this Agreement. 12.3.3.4.4 The D/B or its contractors of any tier shall furnish the City with a policy or Certificate of Hazardous Transporters Pollution Liability Insurance in which the City, its elected and appointed officers and employees, and agents, the D/B, and any upper tiered contractor are named additional insureds. The policy or Certificate must plainly designate the name of the Project, name of the Disposal Site, and the permits secured for its disposal. This Certificate must be furnished to the City, evidencing compliance with the outlined requirements, prior to the D/B or Contractor beginning their Work on the Project. Any failure to furnish this policy or Certificate of Insurance shall not relieve the D/B or Contractor from their obligations under this Section. 12.3.3.5 Professional liability and errors and omissions insurance 12.3.3.5.I The D/B shall provide Project Specific professional liability or errors and omissions insurance, as applicable, with a per claim limit of not less than three million dollars ($3,000,000) for. the services performed by the Design Subcontractors and any Contractors performing design services. The policy shall contain an extended reporting period of five years. The D/B shall be responsible for the first $5,000 of any applicable deductible. 12.3.3.5.2 The D/B shall obtain and provide to City evidence of errors and omissions insurance with a per claim limit of not less than three million dollars ($3,000,000) for the services perforn~ed by the Insurance Consultants, Broker or Agent for the D/B on this Project. 32 2/I3/2003 1:12 PM J:\Attorney\EHull\Civic Ctr~DesignBld Agmt\DesignBuild AgmtlB CL2d.doc /q- 40 The policy shall contain an extended reporting period of one year. The Insurance Consultant, Broker or Agent shall be responsible for any applicable deductible. 12.3.4 Cooperation. The D/B and its Contractors shall cooperate fully with and provide any information or records requested by the City or D/B's Insurance Consultant regarding all aspects of the CCIP, including but not limited to claims, audit, payroll, insurance records and safety. Delays in reporting information to the City or D/B's insurance representative may result in delays in progress payments to the D/B. 12.4 Prior to beginning Work under the Agreement, each and every Contractor of any tier shall furnish Certificates of Insurance satisfactory to the City. Ail such Certificates will contain at least the following provisions: 12.4.1 Thirty (30) days written notice to the City prior to any cancellation, non-renewal or material reduction in coverage. 12.4.2 The words "will endeavor" and "but failure to mail such notice shall impose no such obligation or liability of any kind upon the company, its agents or representatives" will be deleted from the Certificates. 12.4.3 Throughout the life of the Agreement, each and every Contractor of any tier shall pay for and maintain in full force and effect, with a carrier or carriers authorized by the California Insurance Commissioner to do business in the State of California, the policies in Sections 12.3.3.2 through 12.3.3.6. 12.4.4 Any insurance provided for City, D/B or subcontractors for this project shall be written through an insurer with an A.M. Best Rating of not iess than A-8. Any exceptions are at the sole discretion of the City and subject to written approval of the City. 12.5 Insurance Limits - City may request a proposal from D/B for modifying the insurance limits. 12.6 The expense of broker(s), Insurance Consultant, insurance administration, deductibles above those for which D/B or Contractor are responsible and net premiums for the insurance 33 2/13/2003 1:12 PM J:~Attomey\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc required of D/B by this Section will constitute a Reimbursable Cost for which City will reimburse D/B, without markup, pursuant to Section 14.2 below. The insurance provisions herein shall not be construed to limit D/B's indemnity obligations contained in this Agreement. The expense for insurance premiums for auto, Workers Compensation and Employer's Liability outside the CCIP and contractor equipment coverages does not constitute a reimbursable cost. That portion of Contractor's Pollution Liability, Hazardous Transporters Pollution Liability, Professional Liability or Errors and Omissions Liability Insurance premiums not specific to this project are not reimbursable under this Agreement. 12.7 For any insurance required by this Agreement which may not covered by the CCIP, which may include Contractor's Pollution Liability, Hazardous Transporters Pollution Liability, Professional Liability or Errors or Omissions Liability Insurance, contractor shall include insurance costs associated with this specific Project within the bid. D/B shall require bids to be presented indicating the cost of Work both with and without the inclusion of insurance costs. 12.8 Questions concerning the insurance requirements of this Agreement shall be directed to the City Representative. Section 13: Inspection 13.1 City shall be responsible for City inspection and material testing and inspections, with reimbursement to be required by D/B for any reinspections. The City shall either perform said inspection services with its own forces or contract with third parties. It shall be the responsibility of D/B, however, to call for, coordinate and schedule all inspections. 13.2 City, its consultants, subcontractors, independent testing laboratories as well as other governmental agencies with jurisdictional interests will have access at reasonable times for this observation, inspecting and testing. D/B shall provide them proper and safe conditions for such access and advise them of D/B's safety procedures and programs so that they may comply. 13.3 City will make, or have made, such inspections and tests as the Citydeems necessary to see that the Work is being accomplished in accordance with the requirements of the Construction Documents. Unless otherwise specified, the cost of such inspection and testing will be borne by the City. In the event such inspections or tests reveal non-compliance with the requirements of the Construction Documents, D/B shall bear the cost of corrective measures deemed necessary by City, as well as the cost of subsequent re-inspection and re-testing. Neither observations by the City nor inspections, tests, or approvals by others shall relieve D/B from D/B's obligations to perform the Work in accordance with the Construction Documents. D/B shall give City timely notice of readiness of the Work for all required on and off-site inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. D/B shall give at least 24 hours notice for on-site inspection and seven (7) days notice for off-site inspection. 34 2/I 3/2003 I: 12 PM J:\Attomey\EHull\Civic Ctr\DesignB[d Agmt\DesignBuild AgmtlB CL2d.doc 13.4 City has the right to stop or suspend Work activities which will conceal or cover up D/B Work product which is to be inspected or tested, or which will interfere with the inspection or testing activities, for a reasonable time and D/B will have no right to additional cost or time it may incur as a result of the Work stoppage. 13.5 When D/B intends to purchase materials, fabricated products, or equipment from sources located more than fifty (50) miles from the City Administration Building which require off site special inspection, the costs of an inspector or accredited testing laboratory retained by the City shall be paid by the City. The inspector or representative of the testing laboratory shall judge the materials by the requirements of the plans and specifications used to solicit bids for construction and the D/B shall forward status reports to the City. No materials or equipment shall be shipped nor shall any processing, fabrication or treatment of such materials be done without prior inspection by the approved agent. Approval by said agent shall not relieve the D/B of responsibility for complying with the requirements of this Agreement. D/B shall require all subcontractors and vendors to assume responsibility for costs of tests or inspections due to the following: 1. Retesting because of failure of initial samples. 2. Failure to properly notify laboratory. 3. Changes in sources, lots, or suppliers of materials after original tests. 4. Changes in methods or materials of construction by D/B that require testing, inspection, or other related services in excess of those required by the Construction Documents. Section 14: D/B Fixed Fee for Services and Reimbursements 14.1 Except as otherwise expressly provided in this Agreement, as full and complete compensation for performance of all services and obligations under this Agreement, D/B shall be compensated ("D/B Fixed Fee") at a fixed sum equal to $6,721,000. That portion of the D/B Fixed Fee earned with each Phase and component of the services is listed in Exhibit 6. Unless otherwise expressly provided in this Agreement, D/B Fixed Fee shall include full compensation for all costs of any type incurred by D/B in performing all services and obligations under this Agreement, including but not limited to the following: 14.1.1 All Design Consultants, including but not limited to architectural, structural, civil, mechanical, electrical, communications, graphics and art consultants, space plmmers, interior designers, landscape amhitects, and acoustical, audio visual, lighting, traffic and security consultants. 14.1.2 Estimating, value engineering and construction management; 14.1.3 Construction supervision and pro. ject management personnel, including but not limited to superintendents, Project managers, Project secretaries, Project 35 2/13/2003 1:12 PM J:\Atto~ney\EHull\Civic Ctr\DcsignBId Agmt\DesignBuild Agmt I B CL2d.doc engineers, Project accountants, and all other D/B personnel wherever located; 14.1.4 All on-site and off-site equipment, supplies and facilities, including but not limited to, computers, estimating, dictating, communication and accounting equipment, office space, trailers, field equipment and storage facilities; 14.1.4.1 In no case shall the cumulative monthly rental charges to the Project for equipment and Small Tools used by the D/B exceed 90% of the fair market value of any one piece of equipment or Small Tools. At City's option, the full price for equipment or Small Tools may be paid, and City may take possession upon completion of the Work. 14.1.5 All home-office and field overhead costs of any type including document control and retention; 14.1.6 All business license costs; 14.1.7 All profit D/B intends to earn under this Agreement. 14.1.8 Ali direct and incidental costs incurred by D/B, except for those specifically identified in Section 14.2. 14.2 D/B shall be reimbursed, without markup and only as specified in this Agreement for the following "Reimbursable Costs." 14.2.1 Reimbursable Bond Premiums; 14.2.2 Reimbursable Subsurface Investigation Costs and hazardous material disposal costs; 14.2.3 Reimbursable Warranty Extensions; 14.2.4 Reimbursable Safety Program Costs. 14.2.5 Any other reimbursable cost expressly provided for elsewhere in this Agreement. 14.3 D/B will also be reimbursed, without markup, for costs it incurs in contracting actual Construction Work on the Project to others ("Hard Construction Costs"). Hard Construction Costs do not include: (1) any costs associated with the design and construction management services to be 36 2/13/2003 1:12 PM J:\AttorncyXEHu[l\Civic CtrSDcsignBId Agmt\DcsignBuild AgmtlB CL2d.doc performed by D/B under this Agreemem, (2) costs incurred due to D/B's negligence or failure to perform according to the terms of this Agreement, including, but not limited to, failure to adequat&ly supervise the Project and use of materials which do not comply with the I~onstruction Documents; or (3) any costs incurred by D/B for which the City is not responsible as provided elsewhere in this Agreement. 14.4 Under no circumstances will the sum of payments for the D/B Fixed Fee, D/B Contingency Fund, Reimbursable Costs and Hard Construction Costs exceed the GMP, unless otherwise authorized pursuant to the terms of this Agreement. 14.5 D/B agrees and acknowledges the City retains its full and complete discretion for all legislative actions, including any future appropriations necessary to complete this Project or fund this Agreement. As more fully provided in Section 26, the City may terminate this Agreement for any reason, including but not limited to, if City Council fails to appropriate sufficient funds or is unsuccessful at obtaining long term financing. Section 15: Change in GMP and Contract Time 15.1 The GMP and Contract Time may only be changed by written Change Order. Change Orders shall be issued only under the following circumstances: 15.1.1 The City directs D/B to perform Additional Services or City Changes as provided in Section 9. 15.1.2 For reasons expressly provided elsewhere in this Agreement. 15.2 The following procedure shall be followed for the issuance of Change Orders: 15.2.1 Upon the occurrence of any event that gives r/se to a Change Order, D/B shall give the City notice of the same within 7 days. D/B shall not proceed with any such services or work until such notice has been given to the City except if such services or work are necessary to protect public health, safety or property. I5.2.2 Unless otherwise directed by the City Representative in writing, before proceeding with any Change Order work D/B shall promptly provide the City with a detailed and complete estimate of cost impact associated with the Change Order, including all appropriate direct and indirect costs and credits. Ali such costs and credits shall be accurately categorized into D/B Fixed Fee, Reimbursable Costs or Hard Construction Costs. D/B shall also provide City with a realistic estimate of the impact, if any, the Change Order will have on the Contract Time. 15.2.3 Upon submission of the detailed estimates by the D/B, the Parties will attempt to negotiate an appropriate adjustment in GMP and Contract Time. If an agreement is reached, a Change Order reflecting the agreement will be executed by the Parties. If an agreement is 37 2/13/2003 1:12 PM J:\Attol ney\EHull\Civic CttkDesignBId Agmt\DesignBuild Agmtl B CL2d.doc not reached, the City shall have the option to direct the D/B to proceed with the subject services and/or work, during which time the D/B shall contemporaneously maintain accurate and complete records of all labor, material and equipment utilized in performing the subject services and/or work. These records shall be submitted to the City and shall become the basis for continued negotiations between the Parties for an equitable adjustment to the GMP and/or Contract Time. l 5.2.4 In the event there is any disagreement or dispute between the Parties as to whether the D/B is entitled to a Change Order or the amount of the Change Order, the matter shall be resolved in accordance with Section 33. D/B shall not have the fight to stop or delay in the prosecution of any services or work, including services or work that is the subject of the Change Order, pending this resolution process. Instead, D/B shall continue diligently prosecuting all such services and work. 15.2.5 City may, in its sole discretion, adjust the GMP or Contract Time for any undisputed amount or time associated with the Change Order or Additional Services. Section 16: Pa,anent Terms 16.1 D/B shall provide all Phase I through III services for the Phase I, II and iii Fee. D/B shall submit certificate and application for payment to the City on a monthly basis for Phase I through III services rendered and costs incurred. The monthly payment shall be based upon percentage of completion of the Schedule of Values (Exhibit 6) plus any Reimbursable Costs as provided in Section 16.3. 16.2 D/B shall provide all Phase IV services for the Phase iV Fee. D/B shall submit certificate and application for payment to City on a monthly basis for Phase IV services. The monthly payment application shall be based upon the percentage of completion of the Schedule of Values plus any Reimbursable Costs and Hard Construction Costs as provided in Section 16.3 and 16.4, less any payments previously made by the City and subject to the receipt of unconditional lien releases for all prior payments and if the invoiced amount is not disputed by City, it shall pay D/B ninety percent (90%) of payment application based upon the percentage complete of the Schedule of Values and 100% of the reimbursable costs within thirty (30) days after receipt of the fully documented invoice. City will withhold the remaining 10% as security for D/B's full performance. 16.3 D/B shall develop and maintain an accurate system for tracking alt Reimbursable Costs. Utilizing this system, D/B shall include with each month payment application an itemization o f all such Reimbursable Costs actually incurred by D/B, during the previous month. Ifrequested by the City, D/B shall provide all backup documentation supporting such Reimbursable Costs. 16.4 D/B shall develop and maintain an accurate system for tracking all Hard Construction Costs it incurs on the Project. Utilizing this system, D/B shall include with each monthly application for payment an itemization of all Hard Construction Costs actually incurred by D/B during the previous month. 38 2/13/2003 1:12 PM J:XAttorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc 16.5 D/B shall separately submit to City certificate and application for payment on a monthly basis for any authorized Additional Services performed by D/B. Subject to the receipt of unconditional lien releases for all prior payments and if Additional Services are not disputed by City, City shall pay ninety percent (90%) of the invoiced amount within thirty (30) days of receipt of fully complete invoice. City will withhold the remaining 10% as security for D/B's full performance of each component. 16.6 Subject to Sections 16.8, City shall pay D/B the ten percent (10%) retention being withheld pursuant to Sections 16.2, and 16.5 as part of the "Final Payment"for each component to D/B. Final Payment will be made thirty-five (35) days after Final Completion. 16.7 The City Manager will consider the release of the entire retention for subcontractors upon completion of the subcontractors' work and execution of a disclaimer and unconditional final lien release by the subcontractor. 16.8 In lieu of withholding retention under this Agreement, at the election of D/B, City will deposit retention amounts into escrow and/or the substitution of securities for money as provided in California Public Contract Code Section 22300. Section 17: Proiect Completion 17.1 Substantial Completion shall be determined for each component of the Phase 1V work separately. Substantial Completion shall be that stage in the progress of the constrnction when all Work on the particular component is sufficiently complete in accordance with the Construction Documents so that City can fully occupy and utilize that component of the Project for its intended purpose; Substantial Completion shall further mean that all goods, services and systems to be provided under the temps and conditions of the Construction Documents are in place and have been initially tested, and are operationally functional, subject only to final testing, balancing and adjustments and normal Final Completion punchlist Work. Substantial Completion shall not be deemed to have occurred until a Temporary Certificate of Occupancy has been obtained for the component of the Project. 17.2 At Substantial Completion for each component of the Project, said component shall have been constructed to include everything called for in the Basis of Design, approved FF&E Matrix and Master Plan unless modified in writing by City. If a conflict exists between the documents, the order of precedence is as listed within this section. 17.3 Final Completion shall be deemed to occur on the last of the following events: (1) recordation ora Notice of Completion for the Project; (2) acceptance of the Project by the City; (3) issuance ora final Certificate of Occupancy for the Project; (4) submission of all documents required to be supplied by D/B to City under this Agreement, including but not limited to As-Built Drawings, 39 2/13/2003 1:12 PM J:\Attorncy\EHull\Civic Ctr\DesignlBld Agmt\DesignBuild AgmtlB CL2d.doc warranties, and operating manuals; (5) and delivery to City of a Certificate of Completion duly verified by D/B. 17.4 D/B shall provide City with a Certificate of Completion, in the form of Exhibit 7, certifying to City under penalty of perjury that the Project has been completed in accordance with the Construction Documents, all applicable building codes and regulations, all permits, licenses, and certificates of inspection, use and occupancy, and ordinances relating to the Project. 17.5 D/B is to provide City final record drawing documents at the end of construction ("As-Built Drawings"). As-Built Drawings are to be accurate and legible records showing exact loy~tion by dimensions, and the exact depth by elevation of underground lines, valves, plugged tees, w~nng and utilities. 17.6 D/B shall provide a copy of, or make available before destruction, all records (which includes all writings as defined in Evidence Code Section 250) to the City upon receipt or generation, which shall include a copy of D/B's filing protocol. Section 18: Contract Time 18.1 The "Contract Time" shall be the number of calendar days stated in Section 1.3.2 for D/B to achieve Substantial Completion for each phase or component therein. The total contract time shall not exceed 1689 days from the issuance of the Notice to Proceed identified in Section 1.3.2.1. 18.2 "Time is of the essence" with regard to Contract Time and all milestones listed in the Civic Center Phasing Schedule (Exhibit 2). 18.3 The Contract Time may only be changed by a Change Order as set forth in Section 15. Further, an extension in Contract Time will not be granted unless D/B can demonstrate through an analysis of the Detailed Construction Schedule that the increases in the time to perform or complete the Project, or specified part of the Project, beyond the corresponding Contract Time arise from unforeseeable causes beyond the control and without the fault or negligence of D/B, its Design Consultants, and subcontractors or suppliers, and that such causes in fact lead to performance or completion of the Project, or specified part in question, beyond the corresponding Contract Time, despite D/B's reasonable and diligent actions to guard against those effects. 18.4 D/B carries the burden of proving an entitlement to an increase in the Contract Time. Delays attributable to and within the control of Design Consultants, or subcontractor or supplier shall be deemed to be delays within the control of D/B. No time extension will be allowed for such delays. An increase in Contract Time does not necessarily mean that D/B is due an increase in the GMP. 40 2/13/2003 1:12 PM J:\Attorney\EHull~Civic Ctr\DesignBld Agmt\DcsignBuild Agmtl B CL2d doc Section 19: Late Completion 19.1 City and D/B recognize that time is of the essence in this Agreement and that City xvill suffer financial loss if the Project is not completed within the Contract Time, plus any extensions thereof allowed in accordance with Section 18.3. They also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by City if the Project is not completed on time. Accordingly, instead of requiting any such proof, City and D/B agree that D/B shall pay as liquidated damages (but not as a penalty) for each calendar day of delay beyond the time specified for Substantial Completion of each component of the Project plus 30 calendar days, the following amounts which D/B expressly agrees are "not unreasonable under the circumstances" as defined in California Civil Code §1671(b): (1) $580 for each of the first 30 calendar days (2) $1,740 for each calendar day in excess of 30 days and less than 60 days and (3) $2900 for each calendar day in excess of 60 days. In no event shall the liquidated damages provided for herein exceed $870,000. Liquidated Damages shall not be assessed after the date on which ' Substantial Completion is achieved pursuant to Section 17. 19.2 If during the course of any component of the Project the City in good faith believes that any individual component of the Project will not be completed within the Contract Time, the City shall have the right to withhold liquidated damages from any D/B payment application in the amount that the City in good faith believes will likely be incurred. If City believes the total retention will not be sufficient to fund potential liquidated damages, City shall have the tight to deduct any contemplated liquidated damages from remaining progress payments. Section 20: Right to Modify Work 20.1 Without invalidating the Agreement and without notice to any surety, City may at any time or from time to time, order additions, deletions, or revisions in the Project; these will be authorized by a written Change Order prepared and issued by City. Upon receipt of any such document, D/B shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Construction Documents (except as otherwise specifically provided). 20.2 When City desires a change in the Project, City may issue a Request for Proposal to D/B. D/B will be required to respond within the time indicated by City. Section 21: Work By Others 2 l. 1 City may perform other work related to the Project at the Project Site by City's own forces, or let other direct contracts ("City Contractor"). The City will give D/B reasonable notice of its intent to do such other work. Neither party's work shall take priority over the others; instead, the 41 2/13/2003 1:12 PM J:\Attorney\EHull~Civic Ctr~DcsignBId Agmt\DesignBuild AgmtlB CL2d.doc Parties will use their best efforts to coordinate their work so as to minimize the disruption to each other's work. 21.2 If the proper execution or results of any part of D/B's work depends upon the work by the City or City Contractor, D/B shall promptly inspect and report to City in writing any apparent delays, defects, or deficiencies in the City's work that render it unavailable or unsuitable for such proper execution and results. D/B's failure to promptly report such delays, defects, or deficiencies in writing before commencement of the affected work, will constitute an acceptance of the City's work as fit and timely for integration with D/B's Work except for latent defects and deficiencies in the City's work for which D/B will not be responsible. 21.3 If D/B or any person or entity working for D/B causes damage to the City's or City Contractor's work, property, or person, or if any claim arising out of D/B's performance of the Project by any other contractor is made against D/B, by City, any other contractor, or any other person, D/B shall promptly repair and/or resolve said claim at no cost to City. Section 22: Warranties and Guarantees 22. l D/B warrants and guarantees to City that materials and equipment incorporated into the Project will be new unless otherwise specified and that all work will be in strict accordance with the Construction Documents and will not be defective. Prompt notice of defects known to City shall be given to D/B. All Defective Work, whether or not in place, may be rejected, corrected, or accepted as reasonably directed by City, provided D/B shall not be entitled to an extension in Contract Time or increase in GMP because of any delay or increase in cost attributable to the rejection, correction or acceptance of said work. Defective work may be rejected even if approved by prior inspection. 22.2 The warranty period shall commence when the Temporary Certificate of Occupancy ("TCO") for each component is issued (irrespective of beneficial use by City prior to issuance of the TCO) and extend one (1) year a fief that date or whatever longer period may be prescribed by laws or regulations or by the temps of any applicable special guarantee or specific provision of the Construction Documents. 22.2.1 D/B is to provide any extra material for maintenance at the completion of the Project, including items such as carpeting, base, floor tile, ceiling tile, paint, and filters. 22.2.2 D/B is to provide City two (2) sets of operating and maintenance data manuals, fully bound and indexed, warranties, guarantees, and bonds. 22.3 Correction of Defective Work - If within the designated warranty period, or such longer period as may be required by laws or regulations, the Project or any part of the Project, is discovered to contain defective work, D/B shall promptly, without any reimbursement or adjustment 42 2/13/2003 1:12 PM J:'~Attorney\EHull\Civic Ctr\DcsignBId Agmt~DesignBuild Agmt [ B CL2d.doc in the GMP, and in accordance with City's written instructions, either correct that defective work, or if it has been rejected by City remove it from the Project and replace it with work which is not defective. If cimumstances warrant it, including but not limited to, in an emergency, City or D/B may have the defective work corrected or the defective work removed and replaced. In that event, D/B shall not be allowed to recover any associated costs, and D/B shall reimburse City for all direct, and indirect costs of City, and City shall be entitled to an appropriate decrease in the GMP, to withhold a setoff against amount recommended for payment, or make a claim on D/B's bond ifD/B has been paid in full. 22.4 The one (1) year warranty period will not begin until the TCO for each component is issued or a final certificate of occupancy is obtained for the project. IfD/B completes the Project or portions thereof prior to this time, it shall preserve the equipment by developing and implementing a preventive maintenance program in compliance with manufacturer's recommendations to maintain the equipment. 22.5 With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for Work performed and materials furnished under this Agreement, the D/B shall: 22.5.1 Obtain all warranties that would be given in normal commercial practice and as required by the City; 22.5.2 Require all warranties to be executed, in writing, for the benefit of City; 22.5.3 Enforce all warranties for the benefit of City, if directed by City; 22.5.4 In the event D/B's warranty under section 22.2 has expired, City may bring suit at its expense to enforce a subcontractor's, manufacturer's, or supplier's warranty; 22.5.5 D/B shall assign ali subcontractor, supplier and manufacturer warranties including maintenance contracts from the installer for specialized equipment, such as elevators, escalators, movable partitions, equipment etc., to cover the limited warranty period to City at the expiration of the one year warranty; and 22.5.6 Any monetary cost for the extension of warranties as a result of City's beneficial use pursuant to Section 23.1 or the City requiring extensions shall be deemed a Reimbursable Cost for which the D/B will be reimbursed pursuant to Section 14.2, as an increase to the GMP. Such extension greater than one year shall be assigned to the City by D/B and City shall look solely to the Contractor or material supplier for enfomement of such warranties. 43 2/13/2003 1:12 PM J:\AttoIney\EHull\Civic Ctr\DesignBId Agmt\DcsignBuild AgmtlB CL2d,doc Section 23: Use and Possession Prior to Completion 23.1 City shall have the right to take possession of or use any completed or partially completed part of the Work. Before taking possession of or using any Work, City shall furnish D/B a list of items of Work remaining to be performed or corrected on those portions of the Work that City intends to take possession of or use. However, failure of City to list any item of Work shall not relieve D/B of responsibility for complying with the terms of this Agreement. City's possession or use shall not be deemed an acceptance of any Work under this Agreement, nor relieve the D/B of any of its obligations under this Agreement. 23.2 While City has such possession or use, D/B shall be relieved of the responsibility for the loss of or damage to the Work resulting from City's possession or use. If prior possession or use by City delays the progress of the Work or causes additional expense to D/B, an equitable adjustment shall be made in the GMP or the Contract Time, and the Agreement shall be modified in writing accordingly. Section 24: Personal Services and Non-Assignability 24.1 This is a personal services Agreement and, therefore, D/B shall not alter the key employees or Design Consultants nor assign or transfer, voluntarily or involuntarily, any of its rights, duties or obligations under this Agreement except upon the prior written consent of City. Any such change, assignment or transfer without the prior written consent of the City shall be deemed null and void and constitute a material breach under this Agreement. 24.2 Personnel that D/B will use to perform the services herein shall be those listed on Exhibit 6. Unless noted otherwise, those individuals listed on Exhibit 8 shall be assigned exclusively to the Project. Further, D/B agrees that it will not transfer or remove these individuals from the Project without the prior xvritten permission or direction of City which will not be unreasonably withheld. If any of the above listed personnel leave the employment of D/B, City shall have the right to approve the replacement. Such approval shall not be unreasonably withheld. 24.3 Design Consultants that D/B will use to perform design services are listed on Exhibit 3. D/B agrees that it will not transfer or remove these entities from the Project without the prior *vritten permission or direction of City. Section 25: Indemnification 25.1 To the fullest extent permitted by the law, D/B shall indemnify, defend, protect and hold harmless City, its elected and appointed officers, agents, employees, consultants, Kipland Howard and Allegis Development Services, Inc. (collectively herein the "lndemnitees"), from and against all claims, demands, causes of action, damages, injuries, liabilities, losses and expenses 44 2/13/2003 1:12 PM J:\Attorney\E[[ull\Civic Ctr\DesignBId Agmt\DesJgnBuild Agmtl B CL2d.doc (including, without limitation, reasonable attorneys' and consultants' fees and expenses) of any kind whatsoever, arising in whole or in part: out of or resulting from D/B's performance of this Agreement, D/B's breach of this Agreement, or the alleged negligent acts or omissions of D/B, its architects, engineers, other professionals and consultants, Contractors, suppliers or anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable. The obligations of the D/B under this paragraph for errors or omissions, including those of the design professional subcontractors, which includes the Design Subcontractors, consultants, agents and employees thereof ("Design Subcontractors"), which arise from (1) the preparation or approval of maps, drawings, opinions, reports, surveys, designs or specifications, or (2) the giving of or the failure to give directions or instructions shall not be limited to the amount of coverage provided for in the professional liability insurance policy. If City is fully reimbursed by DB's insurance for any loss covered by this paragraph, D/B shall have no further obligation for such loss. 25.2 D/B's obligation to indemnify under section 25.1 shall not extend to such claims, demands, causes of action, damages, injuries, liabilities, losses and expenses, to the extent that such is the result of the active negligence or the willful misconduct of an Indemnitee. D~B's obligation to defend under section 25.1, if not covered by the insurance to be provided on the Project, shall not extend to such claims, demands, causes of action, damages, injuries, liabilities, losses and expenses, or causes of actions, to the extent that such are caused by the active negligence or the willful misconduct of the Indemnitee, and from no other cause. 25.3 The D/B agrees, notwithstanding the above to the fullest extent permitted by law, to indemnify, defend, and hold harmless the City, its elected and appointed officers, employees, agents and consultants from and against any and all claims, suits, demands, liabilities, losses, or costs, including reasonable attorney's fees and defense costs, resulting or accruing to any and all persons, firms, and any other legal entity, caused by, arising out of or in any way connected with the detection, presence, handling, removal, abatement, capping, subsequent migration of, or disposal of any asbestos or hazardous or toxic substances, products or materials that exist on, about or adjacent to the jobsite, whether liability arises under breach of contract or warranty, tort, including negligence, strict liability or statutory liability or any other cause of action. D/B's obligation regarding asbestos or hazardous or toxic substances, products or materials shall be li~nited to the proper removal within the Project boundaries and the proper disposal of such materials. Section 26: Right to Temfinate and Suspend Work 26.1 City may, at any time and without cause, suspend the Project or any portion thereof for a period of not more than ninety (90) days by written notice to D/B. D/B shall resume the Project on receipt from City of a Notice of Resumption of Work. D/B may submit a request for a change in the GMP or of the Contract Time, or both, directly attributable to the suspension as provided in Sections 15 and 18. 26.2 Archaeological and Paleontological Discoveries - If a discovery is made of an archaeological or paleontological interest, D/B shall immediately cease operations in the area of the 45 2/13/2003 I: 12 PM J:\Attorney\EHull\Civic Ctr\DesignBld Agmt\DesignBuild AgmtlB CL2d.doc discovery and shall not continue until ordered by City. When resumed, operations within the area of the discovery shall be as directed by City: 26.2.1 Discoveries which may be encountered may include, but are not be limited to, dwelling sites, stone implements or other artifacts, animal bones, human bones, fossils or any item with cultural significance. 26.2.2 D/B shall be entitled to an extension of time and compensation in accordance with the provisions of this Agreement. 26.3 Termination of Agreement by City for Cause - If, through material breach, D/B shall fail to fulfill in a timely and proper maimer D/B's obligations under this Agreement, or ifD/B shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to D/B of such termination and specifying the effective date thereof at least fourteen (14) days before the effective date of such termination. D/B shall have fourteen (14) days in which to cure. If D/B cures or makes a reasonable effort to cure within said 14 days, this Agreement shall remain in full force and effect. If D/B fails to cure to City's satisfaction, all finished or unfinished documents, data, studies, drawings, maps, plans, specifications, reports and other materials prepared by D/B, or any of its agents, Design Consultants or Subcontractors, shall, at the option of the City, become the property of the City, and D/B shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed amounts payable hereunder, and less any damages caused by D/B's breach. 26.3.1 In the event the Agreement is terminated in accordance with this Section, City may take possession of the Project and may complete the Project by whatever method or means City may select. 26.3.2 If the cost to complete the Project exceeds the balance which would have been due, D/B shall pay the excess amount to City. 26.3.3 Rights of City Preserved - Where D/B's services have been so terminated by City, the temfination will not affect any rights or remedies of City against D/B then existing or which may thereafter accrue. Any retention or payment of moneys due D/B by City will not release D/B from liability. It is agreed that termination hereafter will not in any way release, waiver, or abridge any rights the City has against D/B's performance bond surety. 26.3.4 Any dispute as to the amount due or owed to D/B upon termination under this section, shall be resolved in accordance with Section 33. 46 2/13/2003 1:12 PM J:\Attorney\EHullSCivic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc 26.4 Termination for Convenience by City - City may terminate this Agreement at any time and for any reason, by giving specific~wfitten notice to D/B of such termination and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, D/B shall be entitled to receive just and equitable compensation for any satisfactory Work completed to the effective date of such termination. D/B hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 26.4.1 Upon receipt of the Notice of Termination, D/B shall take any action that may be necessary, or that the City Manager may direct, for the protection and preservation of the property related to this Agreement that is in the possession of D/B and in which City has or may acquire an interest. 26.4.2 Payment to D/B Due to Termination - D/B and the City Manager may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a fee proportional to the percentage of work satisfactorily completed. However, the agreed amount, exclusive of costs shown in section 26.4.6 below, may not exceed the total dollar amount authorized by City as reduced by the amount of payments previously made. Iftermination occurs during Phase I, II, or III, D/B shall only be entitled to the Fees for Phases I, II, or III, or a portion thereof, and no amount for Phase IV D/B Fixed Fee, except for Phase IV D/B fixed fee proportional to the percentage of work satisfactorily completed and authorized pursuant to Section 7.6. 26.4.3 Failure to Agree on Payment - IfD/B and City fail to agree on the whole amount to be paid because of the tem~ination of Project, City shall pay D/B the fair and reasonable amounts determined in good faith by City as follows, but without duplication of any amounts agreed to above: 26.4.3.1 The price for completed services accepted, including any retention, by City not previously paid; 26.4.3.2 The costs incurred in the performance of the Project terminated, including initial costs and preparatory expense allocable thereto. These costs are only for Work completed and accepted by the City based on an audit of all Contractors' bills of materials and the timecards for Work actually performed; 47 2/13/2003 1:12 PM J:\Attorney\EHull\Civ/c Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc 26.4.3.3 A portion of the D/B Fixed Fee (overhead and profit) based on the percentage of Work completed on the Project; however, if D/B would have sustained a loss on the entire Agreement had it been completed, City shall allow no profit under this section and shall reduce the settlement to reflect the indicated rate of loss; 26.4.3.4 D/B and Design Subcontractor services through the date of termination shall be paid based on actual time spent as documented on timecards. Expenses shall be paid based on invoice and receipts provided by D/B; 26.4.3.5 Under no cimumstances will D/B be entitled to any consideration for lost profit or lost opportunity costs. 26.4.4 If D/B does not agree that the amount determined by the City Manager is fair and reasonable and if D/B gives notice of such disagreement to City within thirty (30) days of receipt of payment, then the amount due shall be as later determined pursuant to the Dispute Resolution procedures in Section 33. 26.4.5 Payment for Property Destroyed, Lost, Stolen or Damaged - Except to the extent that City expressly assumed the risk of loss, the City Manager shall exclude from the amounts payable to D/B under this Section, the fair value, as determined by the City Manager, of property that is destroyed, lost, stolen, or damaged so as to become undeliverable to City. 26.4.6 Deductions - In arriving at the amount due D/B under this section, there shall be deducted: 26.4.6.1 Any claim which City has against D/B under this Agreement; and 26.4.6.2 The agreed price for, or the proceeds of sale of, materials, supplies, or other things acquired by D/B or sold under the provisions of this clause and not recovered by or credited to City. 26.4.7 Records and Documents Relating to Termination - Unless otherwise provided in the Agreement or by statute, D/B shall maintain all records and documents relating to the terminated portion of this Agreement for three (3) years after final settlement. This includes all books and other evidence bearing on D/B's costs and expenses under this Agreement. D/B shall 48 2/13/2003 1:12 PM J:\Attorncy\EHutI\Civic Ctr\DesignBld Agmt\DesignBui[d AgmtlB CL2d doc make these records and documents available to City, at D/B's office, at all reasonable times~ without any direct charge. If approved by the City Manager, photographs, electronic files, microphotographs, or other authentic reproductions may be maintained instead of original records and documents. 26.5 Termination of Agreement by D/B 26.5.1 D/B may terminate the Agreement upon ten (10) days written notice to City, whenever: 26.5.1.l The Project has been suspended under the provisions of Section 26.1 or 26.2, for more than ninety (90) consecutive days through no fault or negligence of D/B, and notice to resume Work or to terminate the Agreement has not been received from City within this time period; or, 26.5.1.2 City should fail to pay D/B any monies due it in accordance with the terms of this Agreement and within ninety (90) days after presentation to City by D/B of a request therefore, unless within said I0-day period City shall have remedied the condition upon which the payment delay was based. 26.5.2 In the event of such termination, D/B shall have no claims against City except for those claims specifically enumerated in Section 26.4.6, herein, and as determined in accordance with the requirements of said Section. Section 27: independent Contractor 27.1 D/B and any Design Consultant, Contractor, Subcontractor, agent or employee of D/B, shall act as an independent contractor and not as an agent, officer or employee of City. Except as expressly provided in this Agreement, City assumes no liability for D/B's actions and performance; in particular, but without limitation, City assumes no responsibility for paying any taxes, bonds, payments or other commitments, implied or explicit, by or for D/B. D/B acknowledges that it is aware that because it is an independent contractor, City is making no deductions from the fees for services being paid to D/B and that City is not contributing to any fund on the behalfofD/B. D/B disclaims the right to any type of additional fee or benefits. Section 28: Independent Jud~nent 28. I Unless otherwise directed in writing by City, D/B shall, in providing the professional services required by this Agreement, arrive at conclusions with respect to the rendition of information, advice and recommendations, independent of the control and direction of City, other 49 2/13/2003 1:12 PM J:~Attomey\EHull~Civic Ctr\DesignBId Agmt~DesignBuild Agmtl B CL2d.doc tq-.O7 than normal contract monitoring; D/B, however, shall possess no authority with respect to any City decision beyond rendition of such information, advice and recommendations. D/B shall not have the authority to act as an agent on behalf of City unless specifically authorized to do so by City in writing. Section 29: Maintenance of Records and Accounting 29.1 D/B shall maintain, during the Project and for a period of three (3) years after completion of the Project, accurate and organized records of all costs of any type and all services performed under this Agreement. City will have the right at any time, including during the performance of all Phases of the Project to audit and copy all such records. 29.2 D/B acknowledges that this Agreement is to be administered as "open book" arrangement. D/B shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in this agreement. During the performance of the Project and for a period of three years afier final payment, pursuant to Section 16.6, City and it's agents shall be afforded access from time to time, upon reasonable notice, to records, books, correspondence, receipts, subcontracts, subcontractor invoices, purchase orders, vouchers, memoranda and other data relating to the project, all of which D/B shall preserve for a period of three years after final payment. Section 30: Ownership of Documents 30.1 Any and all materials and documents, including but without limitation all drawings, specifications, computations, technical data, designs, plans, investigations and reports, as well as all information and data contained on electronic or magnetic media, prepared by D/B, Design Consultants, any Subcontractor or member of the D/B Team pursuant to this Agreement, shall be the sole and exclusive property of City in accordance with section 30.2 of this Agreement, and D/B shall deliver such materials and documents to City whenever requested to do so by City. However, D/B shall have the right, at its own expense, to make duplicate copies of such materials and documents for its own files, or other purposes as may be expressly authorized in writing by City. No such authorization need be obtained for D/B to show a potential client these documents, however, any other use must be authorized by City. Said materials and documents prepared or acquired by D/B pursuant to this Agreement (including any duplicate copies kept by D/B) shall not be shown for a period of five (5) years after completion of this Project to any other public or private person or entity, except as authorized in writing by City. D/B shall not disclose to any other public or private person or entity any information regarding the activities of City, except as expressly authorized in writing by City. 30.2 City acknowledges D/B's Construction Documents as instruments of professional service. Nevertheless, the Construction Documents prepared under this Agreement shall become the property of the City upon completion of the Work and payment in full of all monies due to the 50 2/13/2003 1:12 PM J:\Attorney\EHull~Civic Ctr\DesignBId Agmt\DesignBuild Agmtl B CL2d.doc D/B or upon termination of this Agreement. The City agrees, to the fullest extent permitted by law, to indemnify and hold the D/B harmless from any claim, liability or cost (including reasonable attorney's fees and defense costs) arising or allegedly arising out of any unauthorized reuse or modification of the Construction Documents by the City or any person or entity that acquires or obtains the Construction Documents from or through the City without the written authorization of the D/B. Section 31: Force Maieure 31.1 Any party to this Agreement may be excused for any delay or failure to perform its duties and obligations under this Agreement, except for obligations to pay money, but only to the extent that such failure or delay is caused by an Event of Force Majeure as set forth in section 31.2. If an Event of Fome Majeure set forth in section 31.2 causes a delay or failure in performance of only a portion of the obligations of a Party under this Agreement, then only that portion of perforn~ance which was delayed or prevented by such cause shall be deemed excused, and the performance of all other obligations of a Party not so delayed shall not be excused by an Event of Force Majeure. Delay or failure in performance of all other obligations of a Party not so delayed shall not be excused by such Event of Force Majeure. Delay or failure in performance by a Party which is the result of an Event of Force Majeure set forth in section 31.2 shall be deemed excused for a period no longer than the delay or failure in performance caused by such Event. 31.2 An Event of Force Majeure means an occurrence beyond the control and without the Fault or negligence of a Party, including but not limited to unusually severe weather, flood, earthquake, fire, lightning, and other natural catastrophes, acts of God or the public enemy, war, terrorist act, riot, insurrection, civil disturbance or disobedience, strike or labor dispute for which D/B is not responsible, expropriation or confiscation of facilities, changes of applicable law, or sabotage of facilities, so long as such Party makes good faith and reasonable efforts to remedy the delays or failures in performance caused thereby. However, D/B, in developing the GMP and Master Development Schedule, has incorporated seven (7) days per Component for anticipated adverse weather days that may disrupt work on the Project; D/B shall be entitled to relief under this Section for adverse weather only to the extent adverse weather days exceed this amount of days.' 31.3 A Party shall give written notice to the other Party as soon after becoming aware of the delay or failure in performance caused by an Event of Force Majeure as is reasonably possible, but in any event within ten (10) working days after Party becomes aware of such delay or hilum. 31.4 Upon request of D/B, City shall ascertain the facts and extent of the delay or failure to perform. If City determines that any delay or failure to perform results from one or more of the causes above, the schedule shall be revised. 31.5 No Event of Force Majeure shall be a basis for monetary adjustment to the GMP. Costs incurred by the D/B as a result of a Force Majeure Event will be reimbursed according to the temps of this Agreement from the Contingency Fund. 51 2/13/2003 1:12 PM J:\Attorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc Section 32: Hazardous Materials 32.1 It is acknowledged by both Parties that the D/B's scope of services does include services related to removal of any existing asbestos or hazardous or toxic materials located by City during course of routine investigation conducted prior to turning site over to DB. In the event the D/B or any other party encounters additional asbestos or hazardous or toxic materials at the Project Site, or should it become known in any way that such materials may be present at the Project Site or any adjacent areas that may affect the performance of the D/B's services, the D/B may, at his or her option and without li ability for consequential or any other damages, suspend performance of services on the Project until the City retains appropriate specialist consultant(s) or contractor(s) to identify, abate and/or remove the asbestos or hazardous or toxic materials, and warrant that the Project Site is in full compliance with applicable laws and regulations. Section 33: Disputes 33.1 All claims, counterclaims, disputes, and other matters in question arising under, or relating to, the Agreement or the breach thereof shall be processed in accordance with the provisions of this Section, unless specifically addressed by another provision of this Agreement. 33.2 D/B shall submit its written request for a Change Order to City pursuant to Section 15. City shall make an initial determination on D/B's request in writing within 15 days of receipt of request and all supporting data. Said Change Order shall be made in good faith and accurately reflect the adjustment in GMP or Contract Time for which D/B believes City is liable, and covers all costs and delays to which D/B believes it is entitled as a result of the occurrence of the claimed event. All requests for adjustment in Contract Time shall include an analysis of the Master Construction Schedule and the impact of the claimed work on specific activities on the Master Construction Schedule. 33.3 Should D/B disagree with City's initial determination, D/B may request a final determination in writing within 15 days of receipt of City's initial determination. 33.4 City shall make a final determination within 15 days after receipt of D/B's written request for final determination and any requested additional supporting data. 33.5 IfD/B disagrees with City's final determination, D/B shall file a claim in writing in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of the same. 52 2/13/2003 1:12 PM J:XAttorncy\EHull\Civic Ctr~DesignBId Agmt\DesignBuild Agmtl B CL2d.doc I t- 70 33.6 Pending final resolution of any claim, including litigation, D/B shall proceed diligently with performance of the Project, and comply with any direction of City. Section 34: Notices 34.1 All notices, demands or other communications hereunder shall be given or made in writing and shall be delivered personally or sent by courier or registered or certified mail, return receipt requested, postage prepaid, addressed to the Party to whom they are directed at the following addresses, or at such other addresses as may be designated by notice from such Party: (i) To CITY: Director of Park and Building Construction 1800 Maxwell Road Chula Vista, CA 91910 Tel: (619) Fax: (619) City Attorney 276 Fourth Avenue Chula Vista, CA 91910 Tel: (619) 691-5037 Fax: (619) 409-5823 (ii) To D/B: Ian Gill, Principal 53 2/13/2003 1:12 PM J:\Attorney\EHult\Civic Ctr\DesignBId Agmt\DesignBuild Agmtl B CL2d.doc /q 7/ Highland Partnership, Inc. 285 Bay Boulevard Chula Vista, CA 91910 Tel: (619) 498-2900 Fax: (619) 498-2970 Any notice, demand or other communication given or made solely by mail in the manner prescribed in this Section shall be deemed to have been given and to be effective three (3) days after the date of such mailing; provided, however, that any notice, demand or other communication which would otherwise be deemed to have been given on a day which is not a working day shall be deemed to have been given on the next subsequent working day. Section 35: Miscellaneous Terms 35.1 Representations: Each Party hereto declares and represents that in entering into this Agreement it has relied and is relying solely upon its own judgment, belief and knowledge of the nature, extent, effect and consequence relating thereto. Each Party further declares and represents that this Agreement is being made without reliance upon any statement or representation of any other Party not contained herein, or any representative, agent or attorney of any other Party. 35.2 Severabilit¥: lfany term or condition of this Agreement is held to any extent to be invalid or unenforceable, all the remaining terms and conditions shall be enforceable to the fullest extent permitted by law. 35.3 Entire Agreement: This Agreement contains the entire agreement, between the Parties and supersedes all prior negotiations, discussions, obligations and rights of the Parties in respect of cach other regarding the subject matter of this Agreement. There is no other written or oral understanding between the Parties. No modification, amendment or alteration of this Agreement shall be valid unless it is in writing and signed by the Parties hereto. 35.4 Drafting Ambiguities: The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and that the decision of whether or not to seek the advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each of the Parties hereto. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement. 35.5 Applicable Law: The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Venue for mediation, arbitration and/or actions arising out of this Agreement shall be in the City of San Diego, Califomia. 54 2/13/2003 1:12 PM J:\Attorney\EHutI\Civic Ctr\DesignBId Agmt~DesignBuild Agmtl B CL2d.doc 35.6 Waiver: Unless otherwise expressly provided herein, no delay or omission by the Parties hereto in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy, nor shall it be construed as a bar to or a waiver of any such right or remedy on any future occasion. 35.7 Effect of Headings: Headings appearing in this Agreement are inserted for convenience of reference only, and shall in no way be construed to be interpretations of the provisions hereof. 35.8 Amendments: This Agreement may be modified, amended or supplemented only by the mutual written agreement of the Parties hereto. 35.9 Authorization and Compliance: Each Party represents that it is duly authorized to execute and carry out the provisions of this Agreement. 35.10 Further Assurances: The Parties agree to do such further acts and things and execute and deliver such additional agreements and instruments as the other may reasonably require to consummate, evidence or confirm the agreements contained herein in the manner contemplated hereby. 35.11 Counterparts: This Agreement may be executed by the Parties in one or more counterparts, all of which taken together shall constitute one and the same instrument. The facsimile signatures of the Parties shall be deemed to constitute original signatures, and facsimile copies hereof shall be deemed to constitute duplicate original counterparts. 35.12 Exhibits and Glossary of Terms: All Exhibits and Glossary of Terms are incorporated herein by reference into this Agreement. 35.13 Third Party Beneficiary: Nothing within the Agreement shall create a contractual relationship between the City and any third party. 55 2/13/2003 1:12 PM J:\Attorncy\EHullSCivic CtrSDes/gnBld AgmtSDesignBuild AgmtlB CL2d.doc SIGNATURE PAGE TO DESIGN/BUILD AGREEMENT CITY OF CHULA VISTA HIGHLAND PARTNERSHIP, ENC. Stephen Padilla, Mayor ~-'-'~avi~ ATTEST: Susan Bigelow, City Clerk Ian Gill Approved as to form by John M. Kaheny, City Attorney 56 2/13/2003 1:12 PM J:\Attomey\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d doc EXHIBIT LIST Exhibit I Master Plan Exhibit 2 Civic Center Phasing Schedule Exhibit 3 Design Consultants Fee Schedule Exhibit 4 Basis of Design Exhibit 5 Key Persom~el Exhibit 6 Schedule of Values Exhibit 7 Certificate of Completion Exhibit 8 D/B Construction Management Worksheet Exhibit 9 Guaranteed Maximum Price Summary Exhibit 10 FF & E Matrix 57 2/13/2003 1:12 PM J:\Attorney\EHull\Civic Ctr\DesignBId Agmt\DesignBuild AgmtlB CL2d.doc GLOSSARY OF TERMS The following Glossary of Terms is designed to provide in a single location the defined terms used in the Agreement. Additional Services. Services which the City has authorized the D/B to perform and which are beyond the scope of work as set forth in the Agreement. Additive Costs. Any cost above that which would normally be found in a competitive bid situation. Agreement. The Design/Build Agreement including all attachments between City and D/B. Certification of Completion. The document, by which D/B certifies that the Project has been completed in accordance with the Construction Documents, all applicable building codes and regulations, all permits, licenses, and certificates of inspection, use and occupancy, and ordinances relating to the Project. Certificate of Occupancy. The document issued by City authorizing occupancy of the entire Project. Change Order. A written amendment to the Agreement executed by City and D/B modifying the terms of the Agreement pursuant to the terms of Sections 15, 18 and 20. City. City shall refer to the City Representative, Agent and/or City Inspection Representative. City Representative. Jack Griffin shall be the initial City Representative. The City Manager will notify D/B in writing of the name of any successor City Representative and D/B shall be entitled to rely upon the directions of the current City Representative until receipt of said written notice. The City Representative shall act on behalf of the City with respect to this Agreement unless the Agreement provides otherwise. D/B shall not make any modifications to the Project unless directed by the designated City representative. Civic Center Complex. Community Development Building, Legislative Building, City Hall, Public Services Building, and Existing Police Building,. Construction Documents. D/B's architectural, structural, mechanical, electrical, plumbing plans and details as well as the plans showing installation of major systems, equipment, fixed furnishings and graphics, the technical specifications and all other technical drawings, schedules, J:\Attorney\EHull\Civic CtlSdesign build glossaryA.doc diagrams and specifications, necessary to set forth in detail the requirements for construction of the Project. Contingency Fund. The funds designated in Exhibit __ which may be used with City approval for all costs included within the GMP, except for the Highland Partnership fee. Contractor. Any person or entity with whom the D/B or City contracts or subcontracts for construction of the Project. Contract Amount. The dollar amount authorized by the Chula Vista City Council to be paid to the D/B as consideration for full performance under the terms of this Agreement which includes the GMP and Reimbursable Costs. Contract Time. The time within which D/B has to complete ail Work and services under the Agreement, which commences with thc execution of the Agreement and ends with the Final Completion Date. Day. Is a calendar day, unless specified otherwise. Defective Work. Work on the Project which is not in compliance with the Construction Documents. Design Builder. D/B including but not limited to consultants, subconsultants, contractors, subcontractors, employees, agents or any other person or entity working for or on behalf on D/B. Design Subcontractors. The architects, engineers and other design professionals contracting with the City or D/B to perform design services for the Project. D/B Fixed Fee. The fixed sum which D/B shall receive as full compensation for performance of all services and obligations under this Agreement, including all costs of any type incurred by D/B; but not including (1) Hard Construction Costs, and (2) Reimbursable Costs, (3) D/B Contingency Fund. Event of Force Majeure. The type of event defined in Section 31 of this Agreement. Final Completion . The date on which the last of the following events occurs: (I) recordation of a Notice of Completion for the Project; (2) acceptance of the Project by the City; (3) issuance of a final Certificate of Occupancy for the Project; (4) submission of all documents required to be supplied by D/B to City under this Agreement, including but not limited to as-built drawings, warranties, and operating manuals: (5) and delivery to City of a Certification of Completion duly verified by D/B. Final Payment. Payment to D/B 35 days after date of Final Completion as set forth in Section 16.6. J:\Attorney\EHull\Civic Ctr\design build glossaryA.doc 1q 77 Guaranteed Maximum Price (GMP). The guaranteed maximum price ( herein "GMP") which D/B shall be paid by City for all Hard Construction Costs and D/B Fixed Fee as set forth in of Exhibit __ for the complete design and construction of the entire Project as specified. Hard Construction Costs. All costs D/B incurred in contracting actual construction Work on the Project for the performance of the Work on the Project including a Contingency Fund, as set forth in of Exhibit ; but specifically does not include: (1) costs associated with the design and construction management services to be performed by D/B under this Agreement or (2) costs incurred due to D/B's negligence or failure to perform according to the terms of this Agreement, including, but not limited to, failure to adequately supervise the Project, use of materials which do not comply with the Construction Documents. Management and Implementation Plan. D/B's detailed description of all necessary procedures and methods to be utilized by D/B in perforating its construction services under Phase IV of this Agreement. Master Construction Schedule. D/B prepared and City approved Master Construction schedule for Phase 1V showing all major milestones, bid dates for major bid packages, commencement of construction, sequence of construction, completion of structural elements, completion of the exterior of the building, which shall conform with the dates of Substantial Completion and Final Completion of Project. D/B will update the schedule as required by the Agreement. Notice of Completion. City document issued after Chula Vista City Council formally accepts the Project. Onsite/Offsite. Refers to Project Site, unless otherwise indicated. Party. The Parties to this Agreement, The City of Chula Vista ("City"), and Highland Partnership, Inc., ("D/B"). Phase I. Phase I shall consist of all services and events described or implied in Section 5 of the Agreement, including but not limited to preparation of schematic design documents, FF&E Matrix and cost estimates. Phase II. Phase II shall consist of all services and events described or implied in Section 6 of the Agreement, including but not limited to the preparation of Design Development Documents, outline specifications and cost estimates. Phase III. Phase III shall consist of all services and events described or implied in Section 7 of the Agreement, including but not limited to the preparation of Construction Documents, Master Construction Schedule, Finalized Management and Implementation Plan and determination of need for and conducting of additional subsurface investigation. J:\Attorney\EHull\Civic Ctr\design build glossaryA.doc Phase IV. Phase IV shall consist of all services and events described or implied in Section 8 of the Agreement, including but not limited to conducting selective competitive bidding for the Work, and the construction and completion of the Project. Project. The design and construction of an expanded, remodeled and fully functional Civic Center Complex, and on and off site improvements as more fully described in the Civic Center Master Plan. Project Budget. The amount of money authorized by the Chula Vista City Council to be expended on this Project, including the GMP, Reimbursable Costs and all other City costs. Project Site. All areas where Work is to be performed pursuant to this Agreement as shown in the Construction Documents. Reimbursable Costs. Includes the premiums for Performance Bond and Payment Bond furnished by D/B pursuant to Section 11 of the Agreement, the net premiums (less any premium returns) for the insurance, including costs for insurance brokers, deductibles, Safety Program and consultants which D/B is required to purchase and maintain pursuant to Section 12 of the Agreement, the cost of all necessary permits obtained by D~B for the Project pursuant to Section 3.1.11 of the Agreement, the costs of subsurface investigations performed pursuant to Section 13 of the Agreement, costs for extension of warranties pursuant to Section 22.5.6 of the Agreement, and Safety Program. Small Tools. Mobile items less than $1500 in total value. Substantial Completion. The date on which (1) the progress of construction when all Work on the Project is sufficiently complete in accordance with the Construction Documents so that City can occupy and utilize the entire facility for Police activities and (2) all goods and services to be provided under the terms and conditions of the Construction Documents are in place and have been initially tested, and are operationally functional, subject to final testing, balancing and adjustments and a Final Completion punch list Work. Temporary Certificate of Occupancy. The document issued by City after it reasonably determines the Project has achieved Substantial Completion as defined in Section 17.1 of the Agreement. Work. All services, labor, materials, supplies, and equipment necessary for D/B, Contractors and consultants to complete the Project. J:\Attorney\EHullXCivic Ctr\design build glossaryA.doc -4- Exhibit 1 Civic Center Master Plan Available for Review in City Clerk's Office Iq-gO RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIViNG THE CONSULTANT SELECTION PROCESS AS IMPRACTICAL AND APPROViNG A CONSULTANT SERVICES AGREEMENT WITH ALLEGIS DEVELOPMENT SERVICES, INC. FOR PROJECT MANAGEMENT/CITY'S REPRESENTATIVE SERVICE WITH RESPECT TO THE RENOVATIONS TO THE CITY'S CIVIC CENTER COMPLEX AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the agreement with Allegis Development Services, Inc. is for the provision of project management services tbr the entire duration of the renovation to the Civic Center Complex; and WHEREAS, Allegis Development Services, Inc. will serve as the City's representative with respect to all aspects of the Project and will make recommendations to the City with respect to issues that arise during the course of the Project; and WHEREAS, staff recommends that Council waive the typical consultant selection process and approve the agreement with Allegis Development Services, Inc. for overall project management services of the Project for the following reasons: (1) they have acquired very detailed information with respect to the Project and are intimately familiar with the typical City processes (2) they have extensive experience in the design/build arena and this experience will be of great value to the City as this complicated lengthy project and (3) the delay that would be caused by the bidding of these services is not warranted and the costs for these services as proposed are reasonable based upon previous recruitment eflbrts with respect to the new Police Headquarters. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby waive the consultant selection process as impractical for the reasons set forth hereinabove. BE IT FURTHER RESOLVED that the City Council does hereby approve a Consultant Agreement with Allegis Development Services, Inc. for Project Management/City's Representative Services with respect to the renovations to the City's Civic Center Complex, 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. 1 Presented by Approved as to form by Andy Campbell ~ M. Kaheny /--/ Director of Building and Park Construction City Attorney J:\Attorney\reso\Allegis Civic Center (February 12, 2003 (3:6PM)] 2 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. Ka~ny City Attorney Dated: ~/~/n~ CONSULTANT SERVICES AGREEMENT WITH ALLEGIS DEVELOPMENT SERVICES, ICN. FOR PROJECT MANAGEMENT/CITY'S REPRESENTATIVE SERVICE WITH RESPECT TO THE RENOVATIONS TO THE CIVIC CENTER COMPLEX Attachment 2 Parties and Recital Page(s) Agreement between City of Chula Vista and Allegis Development Services, Inc. For Project Management/City's Representative Services This agreement ("Agreement"), dated February 18, 2003 by and between the City of Chula Vista, a municipal chartered corporation of the State of California, and Allegis Development Services, Inc. ("Consultant") is made with reference to the following facts: Recitals Whereas, City selected to hire a Design Builder for the design and construction of renovations to its Civic Center Complex, parking lots and related on-site improvements ("The Project"); and, Whereas, City has determined it requires a Project Manager/City Representative to assist the City during the design and construction of the project; and Whereas, Consultant has submitted a proposal to provide professional project management and City Representative services for the project; and, Whereas, City has waived the Consultant selection process in light of Consultant's extensive design build experience, the time constraints of the project, and Consultant's familiarity with the project; 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. 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 Page 1 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 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 Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 9. Page 2 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. (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 19, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph e ' " nt~tled 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 Page 3 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. 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 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. Page 4 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 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 13, 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 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. Page 5 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 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 Page 6 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 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 indemnify and hold harmless the City, its elected and appointed officers and employees, from and against all damages, liability, cost and expense (including without limitation attorneys' fees) arising out 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 (1) those claims, damages, liability, costs and expenses (including without limitation, attorney fees) arising from the negligence or willful misconduct of the City, its officers, employees, or (ii) with respect to losses arising from Consultant's professional errors or omissions, 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 Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to Page 7 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. 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. 9. 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". 10. 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 produced under this Agreement. Page 8 11. 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. 12. 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. 13. 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. 14. 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. 15. Miscellaneous' A. Consultant not authorized to Represent City Page 9 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 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 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 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 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. Page 10 [end of page. next page is signature page.] Page 11 Signature Page to Agreement between City of Chula Vista and Allegis Development Services, Inc. for Project Management/City's Representative Services 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: ,2003 City of Chula Vista by: Stephen Padilla, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: John M. Kaheny, City Attorney Dated: Allegis Develi~.,ment Servicls' Inc. Kiplar]'~ How'a~ra ' -v [ Exhibit List to Agreement (X) Exhibit A. Page 12 Exhibit A to Agreement between City of Chula Vista and Allegis Development Services, Inc. 1. Effective Date of Agreement: February 18, 2003 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: , a [insert business form] ("City") 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: Allegis Development Services, Inc. KiplandH@allegisdevelopment.com 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership ( X ) Corporation Page 13 19 6. Place of Business, Telephone and Fax Number of Consultant: 427 "C" Street, Ste 316 San Diego, CA 92101 Tel: (619) 238-5466 Fax: (619) 232-0703 7. General Duties: Consultant shall work as the City's Owner's Representative throughout the design and construction of the Project. Consultant's duties shall include the review all construction documents, payment applications, GMP submittal, cost estimating, and value engineering. Consultant shall also monitor efforts of D/B throughout design and construction to ensure work is being completed in a workman like fashion. Consultant shall advise and assist City with all aspects of the Project. 8. Scope of Work and Schedule: A. Detailed Scope of Work: PHASE I. PRE-CONSTRUCTION SERVICES Consultant services shall include, but are not limited to: 1.1 Interface with the appropriate representatives of City to evaluate its specific requirements for design and construction of the Project and the status of project development to date, 1.2 Meet with the Design-Build Architect to obtain the Architect's perspective of the Project, and to review in detail the Design Drawings that have been generated to date. 1.3 Meet with the appropriate personnel of D/B to clearly understand their expectations and perspective of the project. 1.4 Review the existing structures to be renovated as part of this project in order to assess their ability to accommodate the intended proposed use. !.5 Evaluate the condition of the old police station and the existing library in order to determine the ability to accommodate City relocated functions on a temporary basis. 1.6 Evaluate the D/B fee and general conditions proposal in order to Page 14 determine its competitiveness within the marketplace. Provide recommendations to the City in this regard. 1.7 Evaluate D/B consultant's fee proposals in order to determine their competitiveness within the marketplace and provide the City recommendations in this regard. 1.8 Working with the D/B and City, assist with the negotiations of a final D/B Agreements between the City and the D/B. 1.9 Review and provide recommendations and suggestions to the Project Construction Schedule and proposed project phasing to be prepared by the D/B. 1.10 Working with the D/B and City, assist with the finalization of a complete Project budget. 1.11 Review and provide recommendations and suggestions to the Project Construction Schedule to be prepared by the D/B. 1.12 Working with the D/B and City, assist with the finalization of a complete Project budget. 1.13 Prepare the Project status and other reports for City as requested. 1.14 Review and recommend for payment all invoices, billings, payment applications and change orders issued throughout the course of this Phase of the Project. 1.15 Attend weekly design review, budget, schedule and general coordination meetings. 1.16 Review all plans, specifications and construction documents generated by the Architect and various consultants to ensure clarity and completeness and to ensure conformance with the established schedule and budget. 1.17 If scheduling conflicts arise as a result of review of D/B's and others' schedules and plans, Consultant shall advise City of various methods to eliminate time delays associated with the Project. 1.18 Consultant shall provide to the City recommendations on various subcontractors to be utilized by the D/B in obtaining competitive bidding on the various major trade components of the project. Page 15 1.19 Oversee the activities of the entire D/B team to ensure conformance to the objectives of City and to ensure adherence to the established budget and schedule. 1.20 Function as watchdog for City over all activities performed by the D/B to ensure that the City's overall objectives and goals are provided for during the course of design and bidding of the Project. 1.21 Other services as requested by City reasonably necessary to ensure Project proceeds in a manner satisfactory to the City. PHASE II. CONSTRUCTION MANAGEMENT SERVICES Consultant services shall include, but are not limited to: 2.1 Oversee the D/B's proposed efforts associated with any potential required remediation of the site as well as the demolition of any existing structures that may be required. 2.2 Meet with Amhitect to review current construction drawings and to fully understand the Architect's functional and aesthetic approach to the Project and the Architect's understanding of City's goals and objectives and to review all documentation completed to date. 2.3 Meet with D/B to fully understand D/B's understanding of City's construction related goals and objectives and to review all other documentation associated with the Project. 2.4 Meet with City's D/B Project Manager/Superintendent to fully understand the procedure that he/they intends to follow to ensure a smooth working relationship with the City. 2.5 Coordinate with appropriate representatives of the City of Chula Vista as they pertain to such matters as permitting and current code compliance. 2.6 Coordinate and interlace directly with the City's technical staff members. 2.7 Coordinate and interface with any and all City representatives and with the City's Bond Council if required. 2.8 Examine in detail the D/B's current cost estimate as to its ability to satisfy the level of quality and specific requirements of City. 2.9 Review the current Project schedule for all work to be performed under the Page 16 scope of the D/B's agreement with City. 2.10 Continually review all plans and specifications generated by Architect and all other consultants to ensure clarity and completeness and to confirm conformance with the City's goals and objectives and established budget and schedule. 2.11 Review and make recommendations on the guaranteed maximum price (GMP) for the Project. 2.12 Prepare Project status and other reports for City as requested. 2.13 If scheduling conflicts arise as a result of review of D/B's schedule and plans, Consultant shall advise City of various methods to eliminate time delays associated with the Project. 2.14 Attend weekly design review, budget, schedule and general coordination meetings. 2.15 Represent City in reviewing all draw requests, change orders and other construction documentation prior to City's payment of same. 2.16 Attend weekly site and coordination meetings as required by the City or D/B. 2.17 Working with the D/B and Architect, refine a detail critical path method schedule (CPM) provided by D/B. 2.18 Monitor adherence of the D/B's activity to the Project budget and schedule. 2.19 If requested by City, provide reports on the general job progress and schedule and draw request. 2.20 Provide recommendations for any additional proposed vendors and subcontractors to be utilized during the course of construction. 2.21 Oversee and provide recommendations on the expenditure of City controlled funds for various FF&E items for the Project. 2.22 Review all invoices and provide recommendation for payment on all City controlled expenditures associated with the FF&E items for the Project. 2.23 If required, provide monthly updates to the City Manager on the status of Page 17 on-going construction activity 2.24 Provide definitive solutions to problems arising during the course of construction prior to them impacting the Project schedule or budget. 2.25 Oversee the preparation of a punch list by the Architect at the completion of construction. 2.26 Oversee the securing of final approvals including the obtainment of a final Certificate of Occupancy, release of bonds and deposits, and appropriate lien releases. 2.27 Provide representation of the Project as City's Representative to ensure that City receives maximum value for their Project expenditure and that the Project adheres to the stipulated time frame and budget, thereby minimizing penalties and unnecessary costs. 2.28 Other services as requested by City reasonably necessary to ensure the Project proceeds in a satisfactory manner. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: N/A Deliverable No. 1: Deliverable No. 2: Deliverable No. 3: D. Date for completion of all Consultant services: April 20, 2007 or City's acceptance of the renovated current Police facility, whichever occurs earlier. Page 18 9. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (×) 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:,.~....,vv..¢'~n nnn $1,000,000 (not included in Commercial General Liability coverage). 10. Materials Required to be Supplied by City to Consultant: (X) Master Plan (X) Design-Build Agreement (X) Project Plans and Specifications (X) Soils Report Any and all other documents pertaining to the project site. 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. 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 Page 19 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 1. $ 2. $ 3. $ ( ) 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 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 Page 20 Contractor shall have represented in writing that said pementage 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) Monthly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant at the rates or amounts set forth hereinbelow according to the following terms and conditions: (1) (X) Not-to-Exceed Limitatior~ 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 for $14,368.75 per month until the City's acceptance of the new Police Facility, then $15,125 per month thereafter. At each one year anniversary of this agreement, the fee will be adjusted by applying the consumer price index, specifically the CPI-W, US City Average, All Items. The period of review will be from December to December. On February 18, 2004, the rate will be adjusted by the rate of change from December 2002 to December 2003. The above monthly rate includes all Materials, and other "reimbursables" ("Maximum Compensation"). (2) (X) Out of Scope Services In the event that Consultant is instructed in writing by the City to perform any services which it believes fall outside the tasks described in this Agreement, Consultant shall immediately consult with the City prior to undertaking to perform same and no work shall be performed under this provision without prior written consent of City acknowledging that said services are Out of Scope. In the event of this determination by City, Consultant shall be entitled to additional compensation on an hourly basis as follows: Principal $ 285.00 Project Manager $120~00 Page 21 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: Jack Griffin Consultant: Kipland Howard 14. Liquidated Damages Rate: N/A ( ) $ 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 ( ) Category No. 1. Investments and sources of income. ( ) Category No. 2. Interests in real property. Page 22 Category No. 3. Investments, interest in real property and soumes 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 is Real Estate Broker and/or Salesman 17. Permitted Subconsultants: Subject to approval by City Administrator 16. 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 Page 23 ( ) 15th Day of each Month ( ) End of the Month ( ) Other: C. City's Account Number: 09200-7999/2159149100-400000 17. Security for Performance 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: 10% ) Retention Amount: $ Retention Release Event: ( ) Completion of All Consultant Services ( ) Other: J:\BPC\BPC Administration~Agenda\Civic Center,Allegis Agreement Civic Center,doc Page 24 1¥-to7 .FEB-O?-03 FRI 10:52 AM DRIVER ALLIfiNT INS SVCS FAX NO, 81@ 8~@1372 P, 02/03 ATTACHMENT 3 driver, alliant NSU ^NCE SErviCES February 7, 2003 lan Gill 1 lighland Partnership, Inc. 285 Bay Blvd. Chula Vista, CA 91910 RE: City of Chnla Vista Civic Center Project [)ear lan: Please find the altached Contractor Controlled Insurance Program (CCIP) cost indication for the Civic Canter project. The pricing is based on the following assumptions. 1. Primary General Liabilit3, / Workers' Cnm~ensafiom The program was priced based on the existing Chula Vista Police Department project. Th~ underwriter has agreed ~o extend the existing policy and rate structure to the new project. Thc advantage to the program is the continuation of the ! O-year tail, which is currently unavailable in the open market. The second advantage is utilizing a rate structure that is 12 to 18 months old in a marketplace where insurance costs have escalated dramatically in the l.ast year. 2. Excess l,iahilW: The cost of the excess was based on similar programs that 1 am working on ceucurrently. I am ve~3, concerned about the availability cfa 10-year tail at tho time of placemcat. 3. Builders Risk: The program indicated was based on discussions with thc Zurich Property Underwriter. Given the spread o£risk, I recommend utilizing a phased program as illustrated under option 2. 4. profes, sion_al Liability: The pricing included in this section are hard numbers from the AIG Underwriter. The professional program would be a Project Specific policy covering all orthe design team members. In addition, tho pricing ref~lcts the addition cfa 10-year Extended Reporting Period. ,FEB-07-03 FRI 10:52 AM DRIVER hLLIhNT INS SVOS FfiX NO. 619 6991372 P. 03/03 Inn Gill HigMand Partnership. hxc. February 7, 2003 Page 2 5. Pollution Liahililv: The pricing is based on discussions with the Underwriter, Tho progrmn would be a Project Specific policy including the 10-year Extended Rcpo~ing Period. Tho biggest hurdle in the placement of'the pollution will be tho deductible level. EfFective February 1, 2003; AIG has increased thc minimum deductible on pollution placomcms ~o $50,000. I am working with the underwriter on an exception for our project. In this proce.~s we are attempting to predict tim cost of insurance for a project that will not star until spring 2004. This is very difficult in the insurance marketplace of today. It is impo~.ant for everyone in thc pro~cs~ to understand that thc pri~ing and terms for the proposed CCIP cotfld change dramatically in tho next 12 months. At this time, I can not honestly project if the change would be for the better or worse- only that it will change. PIc~c contact me with any questions at (619) 699-0541. Sincerely, ~im Castle . FEB-07-03 FRI 10:52 t~M DRIVER ~LLI~NT INS SVOS Ft~X NO, 819 8991372 P, 01/03 driver,ailiant INSURANCE SERVICES ,lira Castle Phone: (619)699-0541 Driver Alliant Insurance So.ices, lnc~ Fax: (619) 1620 5ta Avenne E-Mail: jcastle~driveralliant.com San Diego, California 92101-2797 Liccnse No. 0C36861 Date: Fcbruary 7~ 2003 .TO ~' lm~ Gill (]b~panj/.'. ' ' 1 lighland Parmcrship, lno. · l,~g~.. '. · : ..619~98-2970 Ph. Oh&'"... " 619~98-290o Pages~ ..... I Subj,?: Chula Vista Civia Ceni.er Proj~t lan: Pleas~ find th~ attached coffespondence. Iris asked me yesterday to provide a mmno on lhe pricing. I,et :ne know if there is an~hing you want changM before I send it to Eity. Please cont~t me directly with aay questions at 619-699-0541. J~n Castle /q-/la Highland 285 Bay Blvd., Chula Vista, CA 91910 Phone: 619-498-2900 FAX: 619-498-2970 FACSIMILE TRANSMITTAL SHEET TO: FROM: Iris J. Gladney Dave Welshans (xtn 311) COMPANY: DATE: Independent Risk & Insurance Svc FEBRUARY 7, 2003 FAX NUMBER: TOTAL NO. OF PAGES INCLUDING COVER: 619-691-5199 4 PHONE NUMBER: PROJECT: CV CIVIC CENTER SUBJECT: COPIES: INSURANCE Elizabeth Wagner-Hull - 409-5823 HARD COPY WILL NOT FOLLOW NOTES/COMMENTS: Insurance Information from Jim Castle attached. The documents accompanying this telecopy transmission contain confidential information belonging to the sender which is legally privileged. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this telecopied information is strictly prohibited. If you have received this telecopy in error, please immediately noti~ us by telephone to arrange for retum of the edginal documents to us. RESOLUTION NO.2003- RESOLUTION OF THE CITY COUNCIl, OF THE CITY OF CHULA VISTA DECLARING THE CITY'S INTENTION TO ISSUE TAX EXEMPT OBLIGATIONS TO FINANCE THE RENOVATIONS TO THE CITY'S CIVIC CENTER COMPLEX AND DIRECTING STAFF TO RETURN WITH A FINANCING PLAN WHEREAS, the City Council of the City of Chula (the "Issuer") desires to finance the costs of acquiring certain public facilities and improvements, as provided in Exhibit A attached hereto and incorporated herein (the "Project"); and WHEREAS, the Issuer intends to finance the acquisition of the Project or portions of the Project with the proceeds of the sale of obligations the interest upon which is excluded from gross income for federal income tax purposes (the "Obligations"); and WHEREAS, prior to the issuance of the Obligations the Issuer desires to incur certain expenditures with respect to the Project from available monies of the Issuer which expenditures are desired to be reimbursed by the Issuer from a portion of the proceeds of the sale of the Obligations. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY RESOLVE, ORDER AND DETERMINE AS FOLLOWS: SECTION 1. The Issuer hereby states its intention and reasonably expects to reimburse Project costs incurred prior to the issuance of the Obligations with proceeds of the Obligations. Exhibit A describes either the general character, type, purpose, and function of the Project, or the fund or account from which Project costs are to be paid and the general functional purpose of the fund or account. SECTION2 The reasonably expected maximum principal amount of the Obligations is $40 million. The total Project cost is estimated to be approximately $80 million of which approximately $40 million will be financed with proceeds of the Obligation. SECTION 3. This resolution is being adopted on or prior to the date (the "Expenditures Date or Dates") that the Issuer will expend monies for the portion of the Project costs to be reimbursed from proceeds of the Obligations. SECTION4 Except as described below, the expected date of issue of the Obligations will be within eighteen months of the later of the Expenditure Date or Dates and the date the Project is placed in service; provided, the reimbursement may not be made mom than three years after the original expenditure is paid. For Obligations subject to the small issuer exception of Section 148(f)(4)(D) of the lntemal Revenue Code, the "eighteen-month limit" of the previous sentence is changed to "three years" and the limitation of the previous sentence beginning with ";provided,...." is not applicable. 1 SECTION 5 Proceeds of the Obligations to be used to reimburse for Project costs are not expected to be used, within one year of reimbursement, directly or indirectly to pay debt service with respect to any obligation (other than to pay current debt service coming due within the next succeeding one year period on any tax-exempt obligation of the Issuer (other than the Obligations)) or to be held as a reasonably required reserve or replacement fund with respect to an obligation of the Issuer or any entity related in any manner to the Issuer, or to reimburse any expenditure that was originally paid with the proceeds of any obligation, or to replace funds that are or will be used in such manner. .RECT1ON 6 This resolution is consistent with the budgetary and financial circumstances of the Issuer, as of the date hereof. No monies from sources other than the Obligation issue are, or are reasonably expected to be reserved, allocated on a long-term basis, or otherwise set aside by the Issuer (or any related party) pursuant to their budget or financial policies with respect to the Project costs. To the best of its knowledge, this City Council is not aware of the previous adoption of official intents by the Issuer that have been made as a matter of course for the purpose of reimbursing expenditures and for which tax-exempt obligations have not been issued. RECTION 7 The limitations described in Section 3 and Section 4 do not apply to (a) costs of issuance of the Obligations, (b) an amount not in excess of the lesser of $100,000 or five percent (5%) of the proceeds of the Obligations, or (c) any preliminary expenditures, such as architectural, engineering, surveying, soil testing, and similar costs other than land acquisition, site preparation, and similar costs incident to commencement of construction, not in excess of twenty percent (20%) of the aggregate issue price of the Obligations that finances the Project for which the preliminary expenditures were incurred. SECTION R This resolution is adopted as official action of the Issuer in order to comply with Treasury Regulations ?§ 1.150-2 and any other regulations of the Internal Revenue Service relating to the qualification for reimbursement of Issuer expenditures incurred prior to the date of issue of the Obligations, is part of the Issuer's official proceedings, and will be available for inspection by the general public at the main administrative office of the Issuer. SECTION 9 Staff is further directed to return with a detailed financing plan with respect to the Obligations and the Project. RECTION 10 All the recitals in this Resolution are true and correct and this City Council so finds, determines and represents. Presented by Approved as to form by Andy Campbell John ~vl. Kaheny d Director of Building and Park Construction City Attorney J:~attomey\reso~civic center intent to issuc bonds 2 EXHIBIT A DESCRIPTION OF PROJECT The proposed Civic Center Remodel and Expansion project is necessary to provide current and future administrative office space and related facilities maintenance facilities to serve the Chula Vista community. The current facility located at 276 Fourth Avenue has been determined undersized and therefore inadequate to service the current or future population of the City. The Civic Center Complex consists of 7 buildings: City Hall, Public Services, Exi8sting Police, Legislative, Community Development, Ken Lee and Fire Station 1. The Complex is bordered by Fourth Avenue to the east, Davidson Street to the north and F Street to the south. Significant renovations and improvements will be required to complete the project. The Project includes the addition of 15,000 square feet of office space, substantial remodel of the Public Services and Police Buildings, demolition of the Community Development and Legislative Buildings, additional parking and related on-site improvements. The maximum estimated total cost of such facility is expected not to exceed $80 million. Approximately $40 million of that is expected to be financing costs. 3 II o o oo ooo o~o~o ~ ooooo o o ooo 8~oo o ...... §~oo ~ ~ Highland BASIS OF DESIGN - EXHIBIT 4 CITY OF CHULA VISTA CIVIC CENTER EXPANSION & RENOVATION Submitted: February 18, 2003 Prepared By HIGHLAND PARTNERSHIP, Inc. Design Build General Contractor And CARRIER JOHNSON Architecture & Interior Design CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page I of 26 CITY OF CHULA VISTA CiViC CENTER EXPANSION & RENOVATION BASIS OF DESIGN Design Build Team HIGHLAND PARTNERSHIP Design/Build Prime Chula Vista, California General Contractor CARRIER JOHNSON Architecture San Diego, California Interior Design PROJECT DESIGN CONSULTANTS Civil Engineering San Diego, California SWA GROUP Landscape Architecture Laguna Beach, California HOPE ENGINEERING Structural Engineering San Diego, California JAMES MANN & ASSOCIATES Mechanical Engineering Lakeside, California ILA + ZAMMIT ENGINEERING GROUP Electrical Engineering San Diego, California CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February :[8th, 2003 Page 2 of 26 Highland CITY OF CHULA VISTA CIVIC CENTER EXPANSION & RENOVATION BASIS OF DESIGN SUBMITTAL TABLE OF CONTENTS I. GENERAL PROJECT DESCRIPTION A. Project Description B. Project Data C. Design Concept & Considerations II. OUTLINE SPECIFICATIONS A. Site Work Earthwork Access and Surface Improvements Sidewalk and Plaza Site Development Irrigation System Landscape Maintenance Site Water Supply and Distribution Systems Site Sanitary Sewer Systems Site Storm Sewer Systems Site Utilities B, Architectural - Exterior Stucco Walls Aluminum Windows and Storefront Trellises Garden Walls Trash Enclosure & Central Plant Enclosure Exterior Doors Flat Roof Sloped Roofs Roof Insulation Flashing and Sheet Metal Roof Accessories C, Architectural - Interior Partitions Doom Hardware Specialties Counters/Millwork Wall Finishes Floor Finishes Ceiling Finishes Window coverings CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 3 of 26 Highland CITY OF CHULA VISTA ciVIc CENTER EXPANSION & RENOVATION BASIS OF DESIGN SUBMITTAL TABLE OF CONTENTS (Continued) D. Structural See Systems Description E, Mechanical See Systems Description F. Electrical See Systems Description G. Equipment and Furnishings See FF&E Matrix for Scope CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 4 of 26 Highland I. GENERAL PROJECT DESCRIPTION A. Prolect DescriPtion The Chula Vista Civic Center is located northwest of the intersection of 4~h Avenue and 'F' Street. The new Chula Vista Police Headquarters Facility is located to the southeast. The Chula Vista Public Library is located to the east of the site across Fourth Avenue; and high density residential units to the west. The new Master Plan design will incorporate high public accessibility for the Land Development, Public Works and Planning Departments and also consol[date Administrative functions into a common building, City Hall. Chambers retains its familiar presence at its existing location and all buildings and spaces will undergo major improvements and enhancements. City Hall Building City Hall will include the City Manager, Finance / Finance - Purchasing, Special Operations, Human Resources, City Clerk, Council Offices, City Attorney, and Budget & Analysis. Public Services Building (PSB) PSB will act as the opposite flank for the Land Development departments. Both Public Works / Engineering and a majority of Building & Planning will be accessible from the Northern entrance of PSB. Council Chambers wilt remain in its location with a remodeling of the space scheduled during the PSB renovation phase. An additional entry element will be placed at the Chamber's entrance, as called for in the master plan. Former Pollce Building: The former Police Building will act as a multifaceted structure. It will accommodate a portion of the Planning & Building Department as well as a number of miscerlaneous departments and functions due to its large square footage. The Land Development programs consisting of Buirding & Planning, Public Works / Engineering, Parks & Recreation, and Community Development flank the central drive in both the PSB and Former PD Building, providing maximum visitor accessibility due to their high public cimulatJon. All Land Development departments will be accessible to the public at "one stop" counters, as marked by their entrance elements conceptually integrated into the plan as indicated by the master plan. Parks & Recreation, Community Development, and a portion of Budding & Planning will take occupancy in the Building. Miscellaneous functions such as Legislative Offices, the Credit Union, MIS, and City Clerk Storage will also exist within the Former PD Building. The Legislative Offices will rest adjacent to the central courtyard at the Northwest comer of the building. The Credit Union will be accessible from the public counter, and MIS will remain in the basement adjacent to the City Clerk Storage. Site Improvements: Parking will be dispersed throughout the site as well as on the current Mercy Building site for the short term needs. Visitor / short-term parking will be provided adjacent to the East and South faces of the building directly accessed from the entry from 4th Avenue The central courtyard will extend to Davidson Street and all open spaces on-site will undergo improvement consistent with the Master Plan. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 5 of 26 Highland I. GENERAL PROJECT DESCRIPTION (continued) B. Prolect Data 1. Applicable Codes: 2001 California Building Code Other codes as referenced under the Structural, Mechanical, and Electrical sections of this document. Americans with Disabilities Act Chula Vista Municipal Code 2. Construction Type: Type III-N & V-N (varies), Fully Sprinklered 3. Number of Stories: One (1) (Former PD Building has one Basement Level) 4. Use/Occupancy Type: Office (B) Office areas Assembly (A-3) Public meeting areas / Council Chambers 5. Square Footage: Varies; refer to Master Plan document 6. Parking Data: All on-grade; precise number to be determined, refer to Master Plan C. Desiqn Concept & Considerations The design objectives, include maintaining the civic identity and character of the historic core of City government, consolidating City functions to improve operational efficiency, maximizing the use of existing buildings through remodeling, retrofitting and expansion to minimize expense to the City, and creating a more pedestrian friendly, inviting complex for the community and staff. The ultimate goal is to create a fully integrated and connected relationship between all buildings in the expanded Civic Center complex. A high pdodty is placed on accommodating all staff and visitor parking on- site to alleviate the current impacts on the surrounding neighborhood. Existing Facility Assessment The existing Civic Center Complex consists of 7 buildings. The City Hall, Public Services Building (PSB), Existing Police Building, Legislative and Community Development building on-site; and the El Dorado and Mercy buildings off-site across F Street. During the Master Planning process each of these buildings was assessed to determine their ability to satisfy the space and functional needs of the City. Determinations were made as to the extent individual buildings could be remodeled and expanded, and made compliant with current Building and ADA code requirements. It was determined that the current and future needs of the Civic Center operations could be accommodated by expanding and remodeling the City Hall, PSB and the existing Police facility. The Community Development and Legislative buildings will be razed to accommodate parking. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 6 of 26 I. GENERAL PROJECT DESCRIPTION (continued) C. Desiqn Concept & Considerations (Continued) The Mercy building will be removed to allow for the relocation of Fire Station #1 and the fueling facility, and the El Dorado Building will be removed to make way for the new Police Headquarters. The demolition of the Mercy building and relocation of the Fire Station and Fueling facility will be included in the scope of a future phase of work, Civic Center Master Site Plan The Civic Center Master Site Plan addressed a number of factors, including design, budget, schedule, phasing and the availability and timing of funding. The goal was to create an inviting, livable space for both staff and the community by preserving and enhancing the open space and pedestrian features of the Civic Center Complex resulting in a plan that: · Maintains the historic and architectural integrity of the Civic Center, · Enhances the connection to the surrounding community, Library and future Police Headquarters, · Creates a "sense" of place for the community and city staff alike, · Encourages pedestrian activity by improving and separating vehicular and pedestrian circulation, · Improves the accessibility and way-finding for visitors within the Civic Center, · Minimizes the impact to adjoining residents, · Moves all visitor and employee parking on-site, and · Maximizes efficiency and minimizes cost, by reusing, expanding and adapting existing space to meet future need. Site Considerations A number of constraints required altemative site plan concepts. Being a good neighbor was deemed very important, so care was taken to limit impacts to adjoining residents. The goal to create a pedestrian friendly environment required speciat attention to the high traffic flow on both Fourth Avenue and F Street. The historic character needed to be preserved, which limited the site planning options, as several existing buildings must, for the most part; remain intact. In addition, the open space within the Civic Center needed to be, not only preserved, but also enhanced. Currently there is limited availability of parking on site, so solutions are needed which will limit the current extensive use of off-site parking in the neighborhood with the goal of accommodating all visitor and employee parking on-site. Several alternative site plans, including one that would require the construction of a 275 space parking structure, were reviewed. The proposed Master plan recommends that with the construction of a new Fire station, to be constructed on the site of the Mercy Building, additional surface parking can be created on the current site of Fire Station #1 upon it's demolition, and similarly on the sites of the former Legislative Building and Community Development Building. Spaces created on these sites will become a part of the new total surface parking spaces at the Civic Center. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 7 of 26 Io GENERAL PROJECT DESCRIPTION (continued) C. Desion Concept & Considerations (Continued) Building Design Objectives/Conceptual Design The Master Plan is a 4 building design, which involves the expansion, and/or renovation of the City Hall, Public Services Building, existing Police facility and the Fire Department (in a future Phase). In addition to landscaping, open space and parking enhancements. The two buildings located at the northwest corner of the Civic Center, the Community Development and Legislative buildings will be removed to accommodate additional parking and open space. Floor plans will be developed to: · Maximize th~ use of existing space, · Enhance the functional efficiency of the staff and interaction of departments, · Respond to the operational needs of each department, · Improve public service, access, signage and circulation, · Adhere to City space standards, and · Allow for future flexibility and growth. Design standards will be implemented to improve energy conservation in the Civic Center Operations. The design and construction of the Civic Center will exceed Title 24 standards to qualify the Civic Center for San Diego Gas & Electric's "Savings by Design" Incentives. Energy saving design features that will reduce the need for air conditioning and artificial lighting include: · Providing natural ventilation with operable windows that offer cross flow throughout floor spaces, · Exterior walkways that protect against solar heat gain · Designing the floor plate size to maximize natural light access, · Installing clerestory lighting, and · Adding insulation in wall, and ceiling spaces. In addition, staff will be investigating energy conservation measures, systems and approaches to reduce utility cost, including the utilization of Photovoltaic Panels to reduce peak energy roads. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 8 of 26 Highland II. OUTLINE SPECIFICATIONS Value Enqineer n,q / Analysis Value engineering alternates will be brought to the attention of the City for review and consideration. Division 1 - General Requirements All work shall be in conformance with all applicable codes and regulations. The Design Builder shall be responsible for coordination of all work to be pedormed and for conformance to the contract documents. IIA. - Site Work Earthwork Provide all grading and reshaping of existing site as required to achieve conformance with new finish grade elevations. Assume a balanced cut and fill within the limits of the existing properly lines, if applicable. Access and Surface Improvements Surface improvements are proposed to be conventional asphalt paving and concrete curb and gutter in the parking area. Sidewalks will be 4 inches of concrete. All hardscape improvements will be designed in compliance with ADA, with 2% maximum crossfall and 5% maximum longitudinal slope to avoid the use of handrails. Sidewalk and Plaza Sidewalk Pedestrian Pavement: In public right-of-way, concrete shall be scored and patterned gray to meet City standards. Provide exposed aggregate concrete with integral color concrete paving in pedestrian promenades and at drop-off areas. Special Paving: Provide for 24x~. 4 stone or concrete pavers in the pedestrian promenades immediately adjacent to all main building entries. Allow for thickset installation. Asphalt Concrete Paving Asphalt concrete paving over Class II crushed aggregate base. Minimum thickness shall be 3" A.C. over 6" base at parking areas; 3-1/2" A.C. over 7" base at drives; 4" A.C over 8" base at fire and truck lanes; 6' concrete with #3 bars at 24" O.C. at truck aprons. Prev[de sand seal finish and painted striping and graphics. Site Development Fences and gates shall be galvanized steel, primed and painted w/(2) coats paint Provide a bank of upright tubular steel bike racks (with permanent durable finish) to hold 10 bikes. Provide pre-cast concrete benches and trash receptacles. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 9 of 26 Highland II. OUTLINE SPECIFICATIONS Irrigation System All plant materials shall be watered by an automatic irrigation system consisting of an irrigation controller, rain sensing device, backflow preventer, ball valves, quick coupling valves, remote control valves, and pop- up sprinkler heads. The irrigation controller will be a solid state model with water saving features such as water budgeting and multiple program modes. A rain-sensing device will be provided to interrupt the irrigation cycle in the event of rain. The potable water supply will be protected by a reduced pressure principle backflow preventer. Ball valves will be used at valve manifolds and at tees in main lines for sectional isolation. Quick coupling valves will be used for emergency hand watering and for area wash down. The remote control valves will be electrically controlled by the automatic irrigation controller, and will be grouped in valve manifolds. The irrigation system will be designed for 100 percent coverage. Systems will be designed to allow for separation of plant materials with different water requirements, areas with different solar exposures and sprinkler heads with different precipitation rates. Trees will be watered with a separate bubbler system to provide deep watering and to allow trees to be maintained during times of drought. Slope areas will be separated from level areas. All sprinkler heads will be pop-up types to minimize vandalism and to reduce tripping hazards. All sprinkler heads will have intemal check valves to eliminate Iow head drainage and excess water run-off. Low angle trajectory sprinkler heads will be used to avoid overspray onto buildings, walks and drives. Landscape Maintenance Contractor shall be responsible for a 3-month maintenance period for all landscape material and irrigation systems and a 1-year guarantee period for all plant material. Site Water Supply and Distribution Systems Site Domestic Water Distribution: Domestic water service shall be provided from the water main. It will be metered and provided with backflow prevention. Site Fire Protection Water Distribution Systems: Water for the fire protection will enter the building via a double detector check valve supplied from the water main. Site Sanitary Sewer Systems Site Sanitary Sewerage: Building will drain by gravity to the street on-site sewer. Site Storm Sewer Systems The storm drainage system and overflow drainage system within the building will flow by gravity to the on- site storm sewer. The storm drain system will exit the building at several locations and be connected to the on slte storm sewer. Site Utilities Provide gas, electrical, telephone and cable television services from the property line. CHULA VISTA CiViC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 10 of 26 Highland 11. OUTLINE SPECIFICATIONS liB. - Architectural. Exterior Stucco Walls Typical: 1" nominal cement integrally colored stucco over plywood sheathing on 2 x 6 wood studs at 16" o.c. Walls to be insulated with R21 batt insulation and finished on interior with 5/8" GWB. Finish to match existing buildings. Aluminum Windows and Storefront Type: Commercial quality 4.5 inch deep 4-sided aluminum mullion system with 6" deep accent mullions. Glass to be recessed to the interior side of mullion to maximize shadow line. System to be designed to 25psf wind load. Steel reinforcement where required: ASTM A 36 (ASTM A 36) for structural shapes, plates, and bars; ASTM A 611 for cold-rolled sheet and strip; or ASTM A 570 (ASTM A 570M) for hot-rolled sheet and strip. Glazing: Insulating-Glass Units: Pre-assembled units consisting of dual-sealed lights of glass separated by a dehydrated innerspace, and complying with ASTM E 774 for Class CBA units. Units facing east and north (type 1 - Viracon VE 1-85) to have lightly tinted Iow E coating on the #2 surface.. Units facing west and south (type 2 - Viracon VE 1-55) to have medium tinted Iow E coating on the #2 surface. Heat-Treated Float Glass: ASTM C 1048; Type I; Quality q3. Light Transmittance and Shading coefficients will be determined, prescribed and scheduled during the final project design phases. Finish: AA-C12C42Rlx (Chemical Finish: cleaned with inhibited chemicals; Chemical Finish: acid chromate- fluoride-phosphate conversion coating; Organic Coating: as specified below). Fluoropolymer 2-Coat Coating System: Manufacturer's standard 2-coat, thermocured system. Color and Gloss: Match Architect's sample Grade and Class: Comply with requirements of AAMA Grade and Performance Class F-AW40. Provide units that are re-glazable without dismantling sash or framing. Trellises A combination of 4x6 redwood trellis members over 8x8 redwood beams supported by 8" diameter tube steel cross beams connected to angled 8x8 tube steel columns supported on Iow concrete piers. All redwood members to be #1 grade and stained clear. All tube steel to receive a primed and painted (2-coat) finish. Garden Walls 8" CMU with 1" nominal integral stucco on both sides. Trash Enclosure & Central Plant Enclosure 8" CMU with1" nominal integral stucco veneer and metal louvers with a primed and painted (2-coat) finish. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 11 of 26 Highland II. OUTLINE SPECIFICATIONS Exterior Doors Entry areas and patio access areas to have medium stile aluminum doors with clear glazing and high quality panic hardware. Service and exit doors to be galvanized hollow metal, primed and painted (2-coat). Flat Roof Membrane Roofing to be a built-up 4 ply asphalt roof system over plywood roof sheathing. Provide colored granule cap sheet. Provide rooftop mechanical access traffic pads as required. FM Listing - 1A-90. Exterior Fire Test Exposure: Class A. Standard Roofing Manufacturers Warranty: 10 years. Roofing Installers Warranty: 2 years. Color to be white. Cool roof design on flat roof area with a solar reflectivity of at least 65% and an emissivity of at least 80% Sloped Roofs Red clay Spanish tile; new shall be mixed with salvaged old, then reinstalled for uniformity Roof Insulation Roof insulation shall be R 38 batt insulation in the roof joist space below sheathing. Roof Drainage Provide internally-situated roof and ovedlow drains. Roof drains shall connect to below grade storm drain where accessible or daylight at face of curb or building wall in loading areas. Minimum roof slope shall be 1/4" per foot, Sealants Utilize silicone-based sealants at all glazing conditions. Curtain wall panel joints shall receive polyurethane sealant with polyurethane backer rods. Sealants used in walking surfaces shall be pourable, non-hardening polyurethane type with sanded finish. The Architect and Landscape Architect shall select colors. Flashing, Sheet Metal and Roof Accessories Flashing and Trim: Includes exposed trim, gravel stops, fascia, parapets, copings and gutters, base flashing, counter flashing, equipment support flashing, and roof penetration flashing. Roof intake and exhaust air enclosures to be Iow profile type. Standards: SMACNA Metals: Not exposed to View: Galvanized steel. Exposed to View: Coil coated galvanized steel with high performance organic coating. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 12 of 26 Highland Il. OUTLINE SPECIFICATIONS IIC. - Architectural - Interior Partitions Gypsum board assemblies to be attached to wood framing or light-gage metal studs. Provide cementious backer board at wet areas and tile walls and extend to underside of structure. Council Chamber and conference room walls shatl have acoustical insulation and double layer of gypsum board each side with an STC rating of 50 or better. A 1-hour fire resistance rating of shall be provided at rated corridors. All interior stud walls shall receive sound batts. Doors Provide wood solid core doom W.I.C. premium grade. Wood spec[es to be "Maple" with W.I.C. stain and vamish finish. Provide 16" high stainless steel kick plates at all service and administrative area doom. Typically, doom will be 8' tall throughout. Door frames shall be hollow metal frames, field painted. Conference room and other selected doom will have full glass lights. Interior Fire Rated Doom will be wood with UL rating as required. Hardware All builder's hardware shall be 626 finish (satin stainless steel). Lock and latch sets shall be equal to Schlage Heavy-Duty Mortise series, Best Access Systems 'H' Series (er Architect approved equal) with accessible lever handle design. All fire rated doors and storefront entry doors shall be equipped with closers. All hardware shall meet State of California Title 24 and Federal ADA requirements for handicapped accessibility. Provide 10" high satin stainless kick plates at toilet room and utility ama doors. Site Accessibility / Fire Department Slgnage Provide all site and building signage necessary for proper identification of handicapped parking areas, fire lanes and building address and identification. Projection Screens Electrically operated recessed projection screens (8'-0" x 8'-0") in all major conference rooms. Toilet Partitions Toilet partitions shall be ceiling hung, overhead-braced solid phenolic, vandal-resistant resin. CHULA VISTA CiViC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 13 of 26 Highland II. OUTLINE SPECIFICATIONS Toilet Accessories Provide recessed stainless steel accessories of the following types: toilet paper dispensers; toilet seat cover dispensers; paper towel dispensers and disposals; soap dispensers; steel-framed mirrors, etc. by Bobrick Washroom Equipment, Inc. or Architect-approved equal. Bathroom countertops shall be decorative synthetic marble with integral sink bowl, apron, back, and side splashes. Alternate solid surface or stone tops will be considered. Wall and Corner Guards shall be recessed stainless steel in ail staff areas and storage areas. Counters/Millwork All counter tops and miscellaneous cabinetry (lobby desks, etc.) shall conform to the applicable requirements (for "Custom Grade") of the Manual of Millwork of the Woodwork Institute of California, The National Hardwood Lumber Association, and The American Plywood Association. All kitchenette/breakroom countertops and cabinets shall be laminated plastic Wall Finishes Gypsum Board Wall Finishes shall be primed and painted with a minimum of 2 (two) coats "eggshell" finish (u.n.o.). Service areas and restrooms to have "semi-gloss" enamel paint. All rastrooms will receive ceramic tile. Thin set and grout materials and installation standards of the American Standards Institute (ANSI) and Standard Specification for Ceramic Tile ANSI A137.1 shall apply to work. Provide full height wall coverage on wet and plumbing wails, provide tile wainscot and base on other walls. Provide a Type II - Vinyl wa;lcovering in 'high-traffic" corridors and office areas. Interior wall paneling shall be provided at the Council Chambers & Main Conference Rooms. Back mounted and/or spline mounted acoustical wall panels. Provide minimum noise reduction coefficients per ASTM C- 423. A Flame spread of 25 or less and smoke developed of 450 or less shall apply. Wood paneling: Allow for wood wainscot and feature walls in the public areas and main lobby. Wood species to be ~Maple' with stained finish. Floor Finishes Provide 24"x24" stone tile and base and related setting materials for main lobby entry and service counter areas. Allow for thick-set installation. Provide 4' x 4" tile in restrooms. Abrasion resistance: minimum abrasive hardness of 12, per ATSM C-241. Static coefficient of friction = minimum 0.6, per ASTM C-1028. Provide thin set installation. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 14 of 26 II. OUTLINE SPECIFICATIONS Floor Finishes (Continued) Use vinyl composition floor tile and resilient wall base in storage and service rooms. Products complying with ASTM F-1344. Vinyl sheet flooring and resilient wall base - Kitchenette and break rooms. Products complying with ASTM F-1344. Carpet Flooring & Rubber Base - Allow for 28-oz. level loop carpet tile for public and staff areas. Glue-down installation to comply with CR7-704, Section 8. Upgrade carpet in Council Chambers and Conference Rooms and include installation over ~" pad; allow for 40 oz. multi level loop carpet (roll goods). Ceiling Finishes Acoustical Ceiling Treatment (typical ceiling for enclosed rooms): Acoustical Tile Ceiling Assembly, Class A materials. Suspension System Attachment, per ASTM, C-635, heavy duty. Tile shall be USG "Millenia" 24" X 24" lay-in panel, fineline grid with NRC minimum of 0.65. Provide painted gypsumboard ceilings at restrooms. Sprinklers are to be semi recessed, white throughout the building interior. Provide flush heads at exterior soffits where required. Gypsum board dropped soffits and ceilings at the Main Entry Lobbies, Main Conference Rooms and a combination of soffited and acoustical ceiling tiled configurations at the Service Counter Areas. Window Coverings All office and conference window coverings shall be chain- and wand-operated vertical-vane perforated vinyl blinds, fully adjustable, selection from standard products. liD. - Structural Refer to Structural Basis of Design sections following. liE. - Mechanical / Plumbing Refer to Mechanical Basis of Design sections following. IIF. - Electrical Refer to Electrical Basis of Design sections following. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 15 of 26 Highland II. OUTLINE SPECIFICATIONS Fire Protection System (Suppression) Water for fire protection will enter the building via a double detector check valve supplied from the main. Provisions for a fully sprinklered building will be made. A wet standpipe system will be provided for Fire Department use per NFPA 13. Appropriate drainage for systems will be provided to allow for flushing of piping. Sprinkler design criteria for the various areas will be in accordance with the latest NFPA #13 Requirements as follows: · (Light hazard): .1 gpm per square foot density for remote 1,500 square foot of area. · (Ordinary hazard): .16 gpm per square foot density for remote 1,500 square foot of area. Fire Protection Specialties Fire Extinguishers, Cabinets and Accessories will be provided to meet code. Typical fire extinguishers will be multi-purpose dry chemical. Cabinets shall be semi-recessed and fire rated with a stainless steel finish. IIG. - Equipment and Furnishings Equipment Refer to the FF&E Matdx for more information. Fixed Furnishings Refer to the FF&E Matrix for more information. Movable Furnishings Refer to the FF&E Matrix for more information. Ail desks, tables, chairs, system furniture, whiteboards, etc. shall be provided by the City under separate contracts. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 16 of 26 Highland liD. STRUCTURAL OUTLINE SPECIFICATIONS A. Applicable Codes The following is a partial list of the applicable codes relating to this project: 1. 2001 California Building Code (CBC) 2. 1997 Uniform Building Code (UBC) 3. ACl 318-95 4. AISC ASD/9~ Edition B. Foundations and Soils No data available. City is currently completing the Soils Report. Design is based on standard spread footings. Special foundations; piles; caissons; mats; etc. are not included at this time. C. Site Seismic Factors Seismic Zone: 4 Seismic Source: Type B Distance to Seismic Source: +/- 10km Near Soume AcceleJ'ation Factor, Na: 1.0 Near Source Velocity Factor, Nv: 1.0 Soil Profile: Not Available Seismic Acceleration Coefficient, Ca: Not Available Seismic Velocity Coefficient, Cv: Not Available CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 17 of 26 Highland lID. STRUCTURAL OUTLINE SPECIFICATIONS D. Structural System Gravity System Structural Steel; Concrete or Wood Frame (per existing Buildings) Lateral System Moment and Braced Frames; Plywood Shear Walls Foundations Conventional Spread Footings E. Material Specifications Concrete f'c = 3,000psi Structural Steel Shapes ASTM A572, Grade 50 F. Outline Specification Section Listing DIVISION 3 - CON(~RETE 03300 Cast-in-Place Concrete DIVISION 4 - MASONRY 04810 Unit Masonry Assemblies DIVISION 5 - METALS 05120 Structural Steel CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 18 of 26 Highland liE. MECHANICAL OUTLINE SPECIFICATIONS A. Applicable Codes The following is a partial list of the applicable codes relating to this project: 1. Uniform Mechanical Codes (latest version). 2. California Supplement to the Uniform Mechanical Code (latest version). 3. Uniform Plumbing Code (latest version) 4. California Supplement to the Uniform Plumbing Code (latest version) 5. Applicable NFPA Handbooks 6. ASHRAE Handbooks 7. ASHRAE TechnicalStandards 8. ASPE Technical Standards 9. Title 24 California Energy Requirements B. Design Data: Outdoor Desiqn Conditions Summer 84°F dry bulb and 70°F wet bulb Winter 38°F dry bulb Indoor Desiqn Conditions Summer 75°F dry bulb and 50°F wet bulb Winter 70°F dry bulb Ventilation Rates / Indoor Air Quality ASHRAE standards,62-89 Life Cycle Analysis 20-year life cycle cost analysis Comparative analysis of alternate energy sources Comparative analysis of equipment and system configurations CHULA VISTA CiViC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 19 of 26 Highland liE. MECHANICAL OUTLINE SPECIFICATIONS (continued) C. HVAC System Installed HVAC systems shall consist of Packaged VAV units with compressors, condensers, supply and return air fans, filters and economizers located on the mol of each building. Main medium pressure ductwork loops from these units will be installed in the attic spaces. Boilers and associated pumps located on the roof of each building with heating hot water piping loops installed in the attic spaces. VAV boxes, installed in the attic spaces, sized according to zone/space requirements that tap off of the medium pressure duct loops and distribute the required amount of airflow into each space. These boxes will also have hot water reheat coils that will allow heating to each individual zone/space as required. Each space thermostat will control a VAV box that varies the supply airflow according to the Icad requirements in that space. HVAC system witl be equipped with the state-of-the-art open protocol DDC system to maintain and optimize the energy efficiency and operation of the entire HVAC system. D. San Diego Gas & Electric Incentives The entire facility and the HVAC System will be modeled in Trace-700 energy calculation software. San Diego Gas & Electric Company will be consulted to qualify this project for possible SDG&E energy incentives. E. California Title 24 Energy Compliance The entire facility and the HVAC System will be modeled in Energy Pro V3.0 energy calculation software to establish compliance with the latest CA Title 24 Energy compliance standards. New Title-24 requirements went into effect June 1,2001. F. Energy Conservation When considering monthly utility costs, it is essential to examine all aspects of the mechanical system and its operation. All mechanical systems will be analyzed to assure that they are cost effective, energy efficient and able to meet the environmental requirements for the facility. G. Plumbing System The plumbing system will include a complete hot/cold water distribution, as well as waste/vent piping located throughout the facility. The entire system will be in compliance with applicable codes such as: Uniform Plumbing Codes, ASPE Standards, etc. H. Fire Protection System The entire facility will be fire sprinklered in compliance with NFP^ 13. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 20 of 26 Highland MECHANICAL OUTLINE SPECIFICATIONS (continued) Outline Specification Section Listing DIVISION 15 - MECHANICAL 15050 Basic Mechanical Materials and Methods 15055 Motors 15060 Hangers and Supports 15071 Mechanical Vibration and Seismic Control 15075 Mechanical Identification 15081 Duct Insulation 15082 Equipment Insulation 15083 Pipe Insulation 15110 Valves 15121 Pipe Expansion Fittings Loops 15122 Meters and Gages 15140 Domestic Water Piping 15150 Sanitary Waste and Vent Piping 15160 Storm Drainage Piping 15300 Fire Protection Systems 15430 Plumbing Specialties 15410 Plumbing Fixtures 15415 Drinking Fountains and Water Coolers 15430 Plumbing Specialties 15441 Water Distribution Pumps 15480 Domestic Water Heaters 15510 Heating Boilers and Accessories 15635 Refrigerant Monitoring and Safety Equipment 15734 Computer-room Air-conditioning Units 15815 Metal Ducts 15816 HVAC Casings 15820 Duct Accessories 15830 Fans 15837 Centrifugal Fans 15838 Power Ventilators 15845 Air Terminals 15855 Diffusers, Registers and Grilles 15861 Air Filters 15900 HVAC Instrumentation and Controls 15940 Sequence of Operation 15980 Commissioning 15990 Testing, Adjusting and Balancing VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February ~L8t', 2003 Page 21 of 26 Highland IIF. ELECTRICAL OUTLINE SPECIFICATIONS A. Basic Electrical Requirements Provide basic equipment and materials applicable to Division 16 sections complying with the current editions of the Uniform Building Code and National Electrical Code and requirements of all authorities having jurisdiction. Additionally, trenching, painting, and miscellaneous concrete work associated with the electrical work is included in the general scope of electrical work. B. Basic Electrical Materials and Methods Underground conduits shall be schedule 40 PVC and not smaller than 2"; exterior exposed conduits will be galvanized rigid steel; interior conduits will be electrical metallic tubing (EMT). Metal clad (MC) cable is permitted where allowed by code. Flexible conduit will be used only for connections to recessed lighting fixtures and to motor driven equipment and vibrating equipment. Electrical wiring will be copper 600 volt insulation type THHN/THWN for power distribution. Underground pull-boxes will be pro-cast concrete with bolt-down steel lids. Disconnect switches are heavy-duty style, fused as required. Wiring devices such as receptacles and switches will be commercial specification grade with stainless steel cover-plates or color and material as selected by the architect, identification nameplates shall be provided on all junction boxes, pull-boxes, cabinets, switchboards, panelboards, disconnect switches and other electrical equipment. C. Utility Company Services 1. San Diego Gas & Electric will provide the power service. A pad mount transformer will be provided per SDG&E requirements including grounding, concrete pad, conduits, etc. 2. Pacific Bell will provide the telephone service. The Main Telephone Terminal Backboard will be provided for Pacific Bell requirements including pullbox, distribution conduits, cable, connections and terminations. 3; Cox Communication will provide the cable television service. The Main Cable Television terminal backboard will be provided for Cox Communication requirements including pullbox, distribution conduits, cable connections and terminations. 4. Full product submittals, operation manuals, and a training session is required for the complete system. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18t", 2003 Page 22 of 26 Highland IIF. ELECTRICAL OUTLINE SPECIFICATIONS (continued) E. Uninterruptible Power System (UPS) 1. A 25kVA uninterrupted power system (UPS), equal to Liebert, with maintenance by-pass switch and alarm options shall be provided. The UPS will provide uninterrupted output at 208Y/120V, 3 phase, 4-wire to critical communication & data loads, & security systems. The UPS will have a output power rating for a minimum of 10 minutes. 2~ Full product submittals, operation manuals, and a training session is required for the complete system. F. Service and Distribution 1. Electrical service to the building will be 480/277 volts, 3-phase, 4-wire. A SDG&E padmount transformer will provide power to the main service switchboard. A Square D switchboard, or equal will include provisions for SDG&E metering, main circuit breaker, feeder circuit breakers and customer metering. The main service switchboard wiJl be provided with adequate interrupting rating, current limiting breaker with an adequate interrupting capacity and current limiting suitable for use with the downstream breakers and a main breaker with integrated time delay ground fault protection for the overcurrent. The main switchboard will distribute power via conduit and wire to panelboards. Square D panelboards, or equal will be provided with 20% spaces for future circuit breakers. Branch circuit panelboards will be 42 circuit molded case bolt-on Square D circuit breaker type, or equal. Interior and exterior lighting will be served at 277 volts. The lighting control panels will be composed with Square D lighting contactor, or equal, and a timeclock. HVAC equipment will be served at 480 volts. General convenience receptacles will be served at 120 volts. Exterior receptacles will be weatherproof with a ground fault interrupter device in a Cole box TL 310 Iockable recessed box type or equal. Equipment will generally be commercial specification grade except that switchboards, distribution boards and branch panelboards will be specified with copper busbars. Seismic anchorage will be required at all electrical equipment. 2. Full product submittals, operations manuals, and a training session is required for the complete system. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 23 of 26 Highland IIF. ELECTRICAL OUTLINE SPECIFICATIONS (continued) G. Lighting 1. The lighting system design will comply with State of California Title-24 energy regulations as modified by AB-970 effective June 1,2001. We further plan to exceed the minimum Title-24 requirements and comply with SDG&E incentive program. 2. Lighting fixtures will be of "specification grade", and in most cases will be energy efficient T8 or T5 fluorescent lamps with electronic ballasts. Compact fluorescent lamps will be used in those interior areas where recessed down lights are desired. Exterior lighting wil~ make use of high-pressure sodium or metal halide lamps. 3. The lighting in office areas will be designed to accommodate moderate CRT computer use without visual discomfort. The ~ighting in the conference rooms will be dimmable. Mechanical and electrical equipment rooms shall utilize surface mounted strip fixtures with wireguards. Emergency lighting and exit lights shall be provided throughout the facility. 4. Control of the lighting systems wilt be by local switches with automatic shutoff in most areas. Automatic shut-off is performed by the use of a programmable relay based time control system. In addition, split level switching will be incorporated in offices. Exterior, parking and site lighting will be automatically turned on via photocell, turned off by the programmable time control system set to turn the lights off at a designated time. The programmable time control system will feature an override switch to be used for maintenance proposed. 5. Full product submittals, operations manuals, and a training session is required for the complete system. H. Fire Detection and Alarm System 1~ An automatic fire alarm detection and alarm system will consist of the following: Manual pull- stations for alarm initiation, located in non-public areas only; duct smoke detectors at HVAC equipment moving in excess of 2000 CFM of air; individual room smoke and heat detectors only in those areas directly mandated by code; electrical rooms, etc; audible alarm horns throughout the facility; visual alarm strobes in all restrooms, offices, noisy areas, and other "common" areas as defined by the California State Fire Marshall. Fire protection sprinkler riser flow and tamper switches will be provided. The system will be completely addressable and will have the Main Control Panel located in the electrical room. A remote graphic annunciator will be located at a location directed by the local Fire Marshall. The system will have integral battery backup. The system will be capable of being remotely monitored and supervised. 2. Full product submittals, operation manual and a training session is required for the complete systems. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 24 of 26 Highland IIF. ELECTRICAL OUTLINE SPECIFICATIONS (continued) I. Security System 1. A Closed Circuit TV (CCTV) system will be provided. The CCTV system will consist of fixed cameras (no pan/zoom required). These cameras will be located at the main entrances. The installation will also include controller/sequencer, video cassette recorder, monitor, etc. 3. A personnel (MAG card) access system will be provided and be enabled to program at least 500 cards for different access points, the option of printing to record; who, when, where and retain memory/function on power outage at each reader. Points of access will be located at entrances to main departments. 4. An Intrusion Detection System will be provided and composed of door contact, infrared detectors, key pad, activate/de-activate and a remote audible and visual alarm. J. Telephone System 1. Infrastructure (wiring, conduit and pull-boxes), to serve the City's telephone/paging system will be provided throughout the facility. Paging will be provided via the telephone system and composed of an amplifier and ceiling mount speakers at locations where telephones are not available. A dedicated telephone output will be connected to the paging amplifier. Cabling to individual telephones will be Category 6 UTP. Cable punch-down and cross connects will be provided at intermediate distribution facilities in each building. The entire installation will be in conformance with EIA/TIA standards and shall be performance tested. The City will provide the telephone switch and instruments via separate contract(s). 2.Full product submittals, cable management and identification plan, test results, and operations manuals are required under this section. K. Television System. 1. The building system will consist of TV jacks located at all conference rooms, training room, and executive offices. Other components may include amplification, signal processing facilities, and program origination capabilities. The system bandwidth will be designed for 830 MHz. This will allow capacity for approximately 80 channels depending upon the final channel assignments and system configuration. The system will allow future T-1 connections to distribute video signals. 2. Backbone cabling will be Iow attenuation 0.500 inch coaxial feeder cable. Individual TV outlet drops will be RG-6 coaxial cable. Termination, tap-off, and signal amplification will be accomplished at the telecommunications backboard in the building. Equipment quality will be MATV grade, "Scientific Atlanta", "Blonder-Tongue" or equal. The completed installation will be performance tested. CHULA VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18th, 2003 Page 25 of 26 Highland ELECTRICAL OUTLINE SPECIFICATIONS (continued) Outline Specification Section Listing DIVISION 16 - ELECTRICAL 16010 Basic Electrical Requirements 16050 Basic Electrical Materials and Methods 16111 Conduit 16123 Building Wire and Cable 16130 Boxes 16141 Wiring Devices 16160 Cabinets and Enclosures 16170 Grounding and Bonding 16190 Supporting Devices 16195 Electrical Identification 16403 Building Service and Distribution 16425 Switchboards 16440 Disconnect Switches 16461 Dry Type Transformers 16470 Panelboards 16485 Contactors 16500 Lighting System 16510 Interior Luminaires 16530 Site Lighting 16550 Lighting Controls 16610 Uninterruptible Power System 16725 Fire Alarm System 16770 Control and Communication System 17200 Telephone System (Infrastructure Only) 17200 Intercom System (infrastructure Only) 17900 Security Access Control System 17920 CATV System (Infrastructure Only) 17990 Other · VISTA CIVIC CENTER BASIS OF DESIGN SUBMITTAL February 18m, 2003 Page 26 of 26 Highland Partnership, Inc. Design Build Team Civic Center Complex Design Build Agreement February 2003 Highland ,1 1 HighlandCity of Chula Vista Civic Center ~ Design Build Agreement ~,~ o, CHULA VISTA Highland Partnership, tnc. has carefully assembled a highly qualified team with the staff and experience necessary to develop, design, and build this important civic project for the City of Chula Vista. Corporate information and experience for Highland and its key Design Team members follow. Highland Partnership, Inc.'s Principals and senior management have experienced working together on major public / private turnkey projects since the dawn of the Design Build delivery system in the early 1980's. Highland's experience includes assembling and managing multi-disciplinary teams to design and construct complex, special purpose projects in masterplan environments where ownership, financing and phasing considerations are of paramount importance in achieving feasible and successful project delivery. Carrier Johnson, (Design Architect / Architect of Record) San Diego's largest architectural firm, brings to the Highland Team an enviable reputation in masterplanning, designing and producing large scale and intricate projects. Highland Principals previously worked with Carrier Johnson the Chula Vista Police Headquarters Facility, the Murrieta Police Headquarters Facility, Murrieta Senior Center, Murrieta City Hall and the Rohr (Goodrich) Masterplan and buildings. Highland ~ g~ City of Chula Vista Civic Center ~ l-{_i Iai-la Design Build Agreement ..., C HULa. VISTA Highland Partnership, Inc. specializes in providing turnkey development, project management and construction services for new and retrofit building projects for the public sector, corporate, medical and technology based industries. Our Principals and management team continually strive to improve on the best Highland has developed a project implementation techniques. Highland is recognized as a leading Design ! Builder and an innovator in other emerging forms reputation ofsuccessfull~ of contract which add value for our Clients. From our corporate delivering complex and office in Chula Vista Highland has directed and implemented technically challenging projects across the nation, concentrating the majority of our efforts projects in Southern California. Anchored by an experienced management team and client- focused processes, Highland has developed a reputation of successfully delivering complex and technically challenging projects for our clients. This distinction has been accomplished through: Our client-focused processes are developed around the clients' needs and goals, rather than timeworn, inflexible procedures often foundin large general · Proactive participation of senior management in al aspects contracting firms, of the design phase process, particularly during the critical conceptual and schematic design phases · Developing accurate and comprehensive project budgets early in the design process and maintaining that budget to completion through detailed and effective cost management · Executing a project-specific competitive bidding process that consistently results in the lowest prices and the selection of most capable specialty trade contractors. Highland city of Chula Vista Civic Center Design Build Agreement ~ CHULA VISTA · Day-to-day, hands-on site based supervision and inspection during construction phase, ensuring top quality installation of all trade work. * No Leaks or Squeaks !! Highland has provided turnkey development, general contracting and construction management services on a wide variety of public and private sector buildings. Through this diversity of experience Highland's senior management has the ability to "think like an owner." We have developed an excellent reputation for being a proactive and creative partner with our clients during the early, formative phases of the project, rather than being just a general contractor who waits for the design concepts to be complete before reacting. Highland's senior : management have the ability to "think like an owner." When Highland provides development and construction services for clients we work hard to create the right chemistry from day one by carefully matching our internal team's experience with specific project and client requirements. Management and reporting systems are also developed to best meet the special needs of each client. By performing in-house many of the tasks associated with program analysis, design management and development coordination Highland aims to save the significant costs associated with including additional consultants or redundant layers of management. First and foremost Highland is a general contractor, and our First and foremost extensive experience in this discipline provides the solid Highland is a builder foundation for all the corporation's related activities. Our past success in satisfying our clients has resulted in the award of multiple projects for the same client and we have identified, on the following pages, a few of these special client relationships. ~ ~h] CityofChulaVistaCivicCenter ~ ~-J.i al'Id Design Build Agreement ,,~ ~,~ CHELA VISTA City of Chula Vista ,,~..~{ ~ Highland, as Construction Manager Constructor, has successfully completed the Chula Vista Corporation Yard. This ~ 26-acre development is utilized by the City of Chula Vista as its .~-,..¢.~.~. primary Public Works Operation Facility and Corporation Yard. CI1Y OF The facility houses the Public Works Department's CHULAVISTA Administration, Sewer, Streets, Traffic, Vehicle Maintenance, Building Maintenance Construction Inspection, Survey, Parks Maintenance, Communication and Central Stores functions. Currently under construction is the $48 million, 147,000 s.f. Design/Build Police Headquarters Facility which is scheduled for completion in February 2004. County of Riverside / Economic Development Agency Highland has successfully completed 8 projects for this client. We continue to enjoy a wonderful relationship built on trust and "on time" delivery of quality projects with Brad Hudson, EDA and Lt. Dana Fredendal, Riverside County Sheriff Depadment. Several projects have been as Design Builder and several have been as Construction Manager Constructor. The Riverside County Sheriffs have presented Highland with several awards for excellence. 1. Jurupa Valley Sheriff Station - Design Build 2. Depadment of Justice Site Improvements for the State Crime Lab - CMC 3. Hemet Valley Sheriff Station - Design Build 4. Lake Elsinore Sheriff Station - Design Build 5. Lake Elsinore Station - Off-site Improvements - CMC 6. Department of Public Social Services - Remodel Existing Interiors - OMC 7. Medical Office Facility, Blythe - Design Build 8. Indio Coroner Facility - Design Build Otay Water District Highland has successfully completed 5 projects for this client. Highland and Otay Water District enjoy a very positive working relationship built on day-to-day design and construction issues with the complexities of an on going 24-hour a day non-stop business. All projects have been as Construction Manager Constructor. Highland would work with Tom Harron and Fernando Poveda at Otay Water District again anytime. 1. Warehouse and Maintenance Facility 2. Emergency Operations Center and Heavy Vehicle Maintenance Facility 3. Administration Facility 4. Water Conservation Garden 5. Interconnect Pipeline Highland cityof Chula Vista Civic Center ~ Design Build Agreement ~,~ o, 0 CHUlA VISTA Host Marriott Services Corporation Highland successfully completed 9 major projects for this large private (publicly traded) firm. Highland enjoys a wonderful business and personal relationship with Ron Inness, Design Director for Host, and looks forward to the next opportunity to work together. From 1993 through 1999 Highland provided CM, CMC and General Contractor services on the following projects: 1. San Diego International Airport - San Diego Unified Port District - East and West Terminal Remodel and Addition Projects - CM 2. Los Angeles Int'l Airpod - Interior Improvements - CM 3. San Diego International Airport - San Diego Unified Pod District - Commuter Terminal Remodel Project - CMC and General Contractor 4. Ontario International Airport - General Contractor and CMC 5. San Diego International Airport - San Diego Unified Port District - Terminal 2 Interior Improvements - General Contractor and CMC 6. Las Vegas International Airport Terminal D Interior improvements - CM 7. Miami Int'l Airport Phase I Interior improvements - CM 8. Sacramento International Airport - CM (assist with competitive Proposal Response) - Project was won based on Highland Budget and Phasing Plan 9. San Diego International Airpod - San Diego Unified Port District - USO Interior Improvements (Host not involved with this project but Port wanted Highland to do the project) Centre City Development Corporation - CCDC - San Diego Prior to the formation of Highland, lan Gill and Dave Gardner (principals of Highland) worked directly with San Diego's CCDC on several Iandmark projects. (One America Plaza - 3 3-story h igh- rise and Trolley station, San Diego Police Headquarters, Heavy Vehicle Maintenance Facility, First Interstate O ~ce Tower, MTS Office Tower and Trolley Station). Through the positive relationships built over the years Highland was a partner with CCDC in the Development of the first downtown childcare facility "Kids on Broadway" in a public / private partnership. It is a pleasure to work with Pete Hall and the great people of CCDC. 1. Downtown Child Care Facility - Design Build 2. San Diego Ballpark District - Project Management City of Chula Vista Civic Center ~ Design Build Agreement ~,~ of CHULA vISTA Hubbs Sea World Research Institute Highland was initially awarded the Hubbs Sea World Research Institute's Headquarters Facility located on the property of Sea World. Again, due to a very positive relationship with the client, Highland was subsequently awarded the Hubbs Sea World Institute's Carlsbad Fish Hatchery and Research Facility. Our professional and personal relationship continues today as Dave Gardner (Highland Principal) is on the governing board of directors of Hubbs Sea World Research Institute. 1~ Hubbs Sea World Corporate Headquarters Facility- Design Build / CMC 2. Hubbs Sea World - Carlsbad Fish Hatchery and Research Facility - Design Build A representative listing of some of Highland's other successful projects is summarized below: Hi hlandCity of Chula Vista Civic Center ~ Design Build Agreement c~ o~ CHUIA VISTA Chula Vista Corporation Yard A $23 million, 26-acre development is utilized by the City of Chula Vista as its primary Public Works Operations Facility and Corporation Yard. The facility houses the Public Works Department's Administration, Sewer, Streets, Traffic, Vehicle Maintenance, Building Maintenance, Construction Inspection, Survey, Parks Maintenance, C ommunication, and Central Stores functions. Other City functions that utilize the facility include Engineering, Transit and Plannin9 (Building Inspection). The project involved phased demolition, remodel, new construction and Awarded: 5~2000 sitework associated with: · Administration Building - modification of existing 31,100 square Completed: 5/1/1998 foot single-story building to accommodate administrative and office Contract Cost: $23,000,000 needs of the Corporation Yard, and the addition of 11,200 square foot of new space Project Executive: · Shops Building -16,800 square foot addition Dave Gardner, Sr. · Renovation of existing 14,200 square foot single-story warehouse by adding a mezzanine level and subdividing the building to serve CMC Sr. Project Manager: various divisions Dave Cecil · Conversion of 11,400 square foot single story Garage building into Warehouse for the Central Stores Division of Purchasing Client Project Manager: · Construction of new 42,100 square foot Maintenance Building, Dave Byers / Andy Campbell single-story Iarge vehicle repair facility with m ezzanine space for storage · Construction of Fueling Island to include 5,670 square foot single- story building and service canopy for refueling vehicles · Construction of Bus Wash to include 3,400 square foot single-story building and service canopy for washing transit buses · Public Fleet Access Fueling Area · Household Hazardous Waste HHW Dro Off Area Murrieta Police Headquarters Murrieta, California Completed in June 2002, the Murrieta Police Headquarters is a full- service, Design-Build Police Headquarters facility. The one-story building and site program includes 38,000 square feet of building functions in two separate buildings supported by 163 parking spaces for staff and patrol vehicles in a secured yard on the 5.40-acre site. The building floor plan situates related activities in close proximity to Awarded: 6/20/2000 enhance workgroup efficiency and interaction. The facility includes adult and juvenile short-term holding, Livescan, detective and Completed: 6/7/2002 investigations areas, armory, evidence and property storage and briefing/training rooms. The Headquarters is also equipped with an Project Cost: $10,000,000 upgraded state-of-the-ad Emergency Operations Center and Communications Center, which receives and dispatches calls for the Cost Overruns/ Uumeta Police and Fire Departments. The secure yard also contains Change Orders: 0 a combined horse stable and K-9 area. Project Executive: lan Gill This facility serves as the catalyst and cornerstone for the City's vision for its New Town Square. The Police Headquarters will be ioined by Project Manager: other public service facilities on this 35-acre Civic Center site including: Dave Gardner, Jr. Senior Center, Library and City Hall, and an outdoor amphitheater in a 4-acre "Village Green" park. Client Project Manager: Lori Moss, Assr City Manager (909) 461-6002 ~1~ ~]~[ City of Chula Vista Civic Center ~ Hi landDesign Build Agreement ,,,~o; CHUtA VISTA Otay Water District Headquarters Spring Valley, California A $10,700,000, 79,000 square foot remodeling and expansion of the District's Administrative Offices and Operations Center on two contiguous sites totaling 10 acres. The project involved the phased demolition, remodel, new construction and sitework associated with uare feet of administrative offices and 40,000 square feet of operations facilities, including an Emergency Operations Center and Awarded: 7/15/1995 Vehicle Maintenance Facility. Highland's management of the two Completed: 5/1/1998 separate governmental entitlement processes and construction sequencing strategy successfully minimized disruption to District Contract Cost: $10,700,000 customers and employees during construction and enabled an accelerated commencement of construction on the first phase. Cost OverTuns/ Change Orders: 0 Features: · Construction Manager/Constructor Project Executive: · Governmental approvals through County of San Diego involving Dave Gardner, Sr. two separate processes: "B" designator; Major Use Permit CMC Sr. Project Manager: · Management of public bid process/separate trades contracts Dave Cecil for four construction phases · Creative mechanisms for emerging business involvement Client Project Manager: · Preparation of detailed development / construction budgets Ron Ripperger, OWD · Full-time on-site project management (619) 670-2279 · Low voltage systems management · FF&E procurement and installation · Tenant relocationmana~ement San Diego International Airport - Terminal Two Improvements, San Diego, CA A $15 million renovation of all food and beverage and merchandise areas within both the East and West Terminals, including new Terminal 2, at the San Diego international Airport. This renovation has transformed the airport's concession areas into themes mirroring San Diego's personality. Since the airport is a 24-hour facility, construction Awarded: 10/1/1995 coordination was critical. Working closely with Port officials and airport management, Dave Gardner of Highland was responsible for all design Completed: 9/1/1996 coordination, construction management and DBE compliance. The Project Cost: $15,000,000 project included a combination of new facility spaces built on the tarmac, and renovated spaces within the terminals. Significant Cost Overruns/ structural retrofit and relocation of existing power, utility and Change Orders: 0 communications wiring systems was necessary. Project Executive: Features: Dave Gardner, Sr. · ProjectJConstruction/DBE management · Full-time on-site project management Sr. Project Manager: · Sequencing strategy to maintain service on all sections Dave Gardner, Sr. · Preparation/monitoring of Master Schedules (PertJGantt) and Client Project Manager: cost estimates Ron Inness · Interface with Port and Airport Operations Host Marriott Services · Management of bidding process / General Contractor selection (301) 380-3748 · Partnering Plan Management for subcontractors · EEO plan development and management; attainment in excess of 30% emerging business involvement FFE management ~1~ Eh city of Chula Vista Civic Center ~ Hi land Design Build Agreement ~:,~ o, CHUI,& VISTA ! Headquarters Operations Complex and , i~ Indic, California ) ~ ¢~_ ~ ' A $3.8 million, 21,000 square foot Headquarters and Operations Center ! ~ L ,. Complex. The new complex consists of three main facility centers; an "' ~' Administration Center, Operations Center, and Fleet/Maintenance Facilities. Design coordination with the client's Architectural Oversight Committee has ensured that a quality facility is built for the District. The Awarded: 12/14/1999 Administrative Building houses administrative and finance activities along with District boardroom and conference rooms. The Operations Completed: 5/9/2001 Center includes specialists' offices, mudroom, and biological laboratory with rearing rooms, and a dry ice room. Fleet and Facilities Contract Cost: $3,800,000 Maintenance Center support an auto shop, welding shop, woodworking Cost Overruns/ / utility shop and facilities maintenance shop. Change Orders: 0 Features: · Design / Build Contract Project Executive: · Fast-track design and construction lan Gill · Three-building Headquarters and Operations Complex · Secure fleet / employee parking; 20 public parking spaces D/B Sr. Project Manager: · District Board Room Dave Cecil · Storage Buildings constructed for flammable chemicals, regular Client Project Manager: chemicals, cold chemical storage and dry storage. Nick Nigosian (760) 398-1182 Coroner Forensic Center-East, Riverside County Sheriff Indic, California facility. The Coroner Forensic Center-East is the first of its kind built in eastern Riverside County, servicing a population of approximately 250,000 residents covering roughly 5,000 square miles. The facility provides a full service forensic center, office space for Coroner and Public Administrator operations and a Public Administrator warehouse. 00 Groundbreaking was conducted in July 2000, with construction commencing in November 2000. The facility was dedicated on Completed: _11/1/2001 November 1, 2001. Project Cost: $3,100,000 Features: · Design / Build Contract Cost Overruns/ · Fourth project for Riverside County Sheriff Change Orders: 0 · Turnkey development and construction · Fast-track design and entitlement Project Executive: · Project financing and County-owned land provided by EDA lan Gill · State-of-the-art HVAC systems to ensure a safe environment D/B Sr. Project Manager: for employees and surrounding neighbors Dave Cecil · On-site parking, lighting, landscaping and off-site improvements · Exterior design of masonry and stucco in harmony with Client Project Manager: adjacent contemporary buildings Lt Dana Fredendall · Drought-tolerant landscape (909) 955-2520 · Emergency power supply city of Chula Vista Civic Center ]al'Id Design Build Agreement CHU[A V IS~[A Pechanga Government Center and Tribal Hall Temecula, California A 37,820 square foot Government Center and Tribal Hall located at a remote 3.5-acre site on the Pachanga Indian Reservation in Temecula, California. The $4.85 million facility has been constructed for the Temecula Band of Luiseno Mission Indians. The design of the project, by Architects Delawie Wilkes Rodrigues Barker, provides for a multi-use Awarded: 6/2000 facility, with designated spaces that include classrooms, a library, conference rooms and banquet facilities, full service kitchen, and Completed: 11/2001 children's facility with exterior play areas. The facility also provides the Contract Cost: $4,850,000 United States Postal Service space for the Pachanga. The Government Center and Tribal Hall serves as the Tribe's seat of government, with Cost Overruns/ office spaces for Tribal Membership and Council Boardroom facilities Change Ordain: 0 complete with state-of-the-aH communications and audio-visual equipment, Tribal legal services, the Water and Accounting Departments. Project Executive: Dave Gardner, Sr. Features: · General Contractor Contract Delivery GC Project Manager: · Full4ime on-site project management Dave Gardner, Jr. · Direct Purchase Project under Tribe's Tax Exempt Status Client Project Manager: · Remote location required septic tank disposal system Mark Macarro · On-site parking, lighting, landscaping and off-site improvements Tribal Council Chair · Propane system · Emergency Generator Backup South Bay Family YMCA Chula Vista, CA A multi-purpose1 30,000 square foot facility constructed on a 5.5-acre a site created to offer a full-family facility for the South Bay Family YMCA. The Design/Build approach taken with Highland represents San Diego Metro YMCA's first use of this method of building delivery. The design, approved by the local community, the South Bay Family YMCA Board Awarded: 6/30/1997 of Directors and the San Diego Metro YMCA creates a new standard that supports the evolving program of the YMCA well into the 21s~ Completed: 6/30/1998 Century. In 1999 the City of Chula Vista presented the Design Build Team o f F ehlman L a Barre Architects a nd Highland Partnership, I nc. Project Cost: $2,400,00 with a Beautification Award recognizing the positive impact of this project on the City. Cost Overruns/ Change Orders: $58,659 Features: · Design Build contract Project Executive: Dave Gardner1 Sr. · Creation of master phasing plan and implementation strategy · State of art fitness facility with four pools D/B Project Manager/Supt: o Community Room and Childoare Facility Steve De Frates ,, Fast-track construction schedule · In-kind donation coordination and reporting Client Project Manager: Tina Williams · Davis-Bacon/HUD rules applied (619) 421-8805 · Construction delivery risk City of Chula Vista Civic Center Design Build Agreement ~ CHUI~ VISTA Hubbs SeaWorld Research Institute - Fish Hatchery Carlsbad, CA New 20,300 square foot aquaculture research facility (saltwater hatchery) built on the shoreline of the Aqua Hedionda Lagoon in Carlsbad, California. This hatchery is raising 400,000 white sea bass fingerlings for release along the coast between San Diego and Santa Barbara. The facility includes a complete seawater filtration system, a modern laboratory, attached glass greenhouse, and administration offices. Located on a 10-acre "dredged" site owned by SDG&E, the Awarded: 12/1/1994 grading and support for the building slab is unique. Financing for the Completed: 6/1/1995 project was facilitated through a partnership of Southern California Edison, the California Coastal Commission, and California Department Project Cost: $4,000,000 of Fish and Game. Extensive governmental approval process successfully implemented. Cost Qverruns/ Change Orders: 0 Features: · Construction Manager Constructor Project Executive: · No general contractor; non-profit institute as Owner/Builder Dave Gardner, Sr. · Full-time, on-site construction/project management CMC Sr. Project Manager: · Design Assist mechanical, electrical, plumbing and salt water Dave Cecil systems · Budget-driven Design/Build targets achieved through Value Client Project Manager: Management Don Kent · Cash flow/payment management for Coastal Commission (619) 226-3870 "Kids on Broadway" - Urban Childcare Facility San Diego, CA This Design-Build/Leaseback facility was created to meet the need for Childcare in the bustling heart of downtown San Diego, and as a means of serving the employees of the Federal Government as well as the general public. This building's safety features are state of the art, and its design fits beautifully into the downtown San Diego atmosphere. Highland arranged and negotiated a groundlease with CCDC and a Awarded: 3/1/1996 conventional construction and permanent loan for the project. The Federal GSA for up to twelve years is currently leasing the building. As Completed: 12/1/1996 the successful respondent to a Request for Proposal, Highland was selected as the Developer/Owner and Design/Builder of this $2 million Project Cost: $2,000,000 project. Cost Overruns/ Features: Change Orders: 0 · 11,000 s.f. Childcare facility Project Executive: · Highland involved as Developer/Owner and Design/Builder Dave Gardner, Sr. - Davis Bacon prevailing wage and fast track construction schedule · Multiple Agency interface D/B Project ManagedSupt: · Turnkey Development Steve De Frates · Federal GSA has leased facility for eight to twelve year term · Lease and Project Finance- Conventional Const./Perm Loan Client Project Manager: Peter Hall, CCDC · DevelopmentJConstruction/Ownership risk (619) 533-7119 ~ ~ CityofChulaVistaCivicCenter ~ Hi land Design Build Agreement ~,~o, ' CHUL~ VISTA Jurupa Valley Sheriff S~tion, Riverside Coun~ Sheriff Riverside, CA ~ ~ A $5 million, 37,000 square foot building constructed working closely ~ with Riverside Coun~ Economic Development Agency and Sheri~s ~. Depa~ment representatives. Highland coordinated the design and :';~ construction of this Sheriff Station and its associated site improvements, including 225 parking spaces. Coordination of 9-acre on- and off-site Awarded: 8/1/1~7 improvement package on a CMC basis for both the Sheriff Station and the adjacent State of California, Crime Laborato~ Project. Highland's Completed: 11/1/1998 masterplanning and coordination afro,s with the County of Riverside and State Depa~ment of Justice optimized the potential for synergism Proje~ Cost: $5,000,0~ through shared infrastructure be~een the adjacent facilities. Cost Overruns/ Features: Change Orders: $308,206 · Design/Build and Construction Manager/Constructor Contracts Proje~ Executive: · Fast-track design, entitlement and construction Dave Gardner, Sr. · Implementation of site improvements on 9 acres for ~o separate facilities D/B-CMC Proje~ Manager: · Facili~ constructed in under 10 months during the Ei Nino winter Dave Gardner, Jr. 1997-98 with 45 rain days · Foundation and building permit packages processed separately to Client Proj~ Manager: accelerate work on foundation, slab and site including the relocation Lt Dana Fredendatl of a 60" storm culve~, ahead of the rains while building construction (909) 955-2520 documents were completed. Depa~ent of Public Social Se~ices Adaptive Remodel Riverside, CA A $2 million design coordination and build-out of 82,600 square feet of Office Building Tenant Improvements for DPSS (2), ~o-sto~ administration buildings, Tempora~ O~ce Facilities, parking and site improvements for the Coun~ of Riverside, Depa~ment of Public Social Se~ices. Highland Pa~nership, Inc. provided Construction Awarded: 8/4/1998 Management, and construction se~ice for these facilities in compliance with an e~remely tight schedule, which included 10 phases of work. Completed: 2/15/1999 Unique challenges included project scheduling to coincide with scheduled moves of staff, which required after hours work. Highland in Projem Cost: $2,0~,000 many cases, to help facilitate the work, moved furniture and helped with relocation of employee furniture and systems to minimize impacts and Cost Overruns/ disturbances to DPSS ongoing operations. The building remained Change Orders: $169,917 occupied during construction using a "Rubik's-Cube" like phasing Proje~ Executive: approach to minimize disruption and costs while maintaining a tight lan Gill project schedule. CMC Proje~ Manager: Features: To~ Stephen · 21,800 s.f. renovations at 3950 Reynolds Road Admin Building (619) 4~-59~ · 55,000 s.f. renovations at 4060 Coun~ Circle Drive Client Proj~t Manager: * 5,800 s.f. Tempora~ Office space renovation Rick King · 10-Phase project; July through November 1998 (858) 4~-5996 · Accomplished with minimal disruption to ongoing DPSS operations ,1 l Hi hland City of Chula Vista Civic Center Design Build Agreement CHUI~ VISTA Otay Water District Interconnect Pipeline A $ 25 million, five and one-half mile pipeline project designed to help meet the current and future demand for water in the Chula Vista and Otay Mesa areas. The pipeline has increased the District's operational efficiency by allowing water to flow between two large, currently independent systems. Three separate pipes, up to 30 inches in diameter and totaling nearly 62,000 feet, are laid in trenches and tunnels along the route. The pipeline ranges in depth from 8 feet to 65 feet, and connects more than 43 million gallons of water storage. Awarded: 8/1/1998 Features: · Construction Manager/Constructor (Highland's third project with Completed: On schedule Otay Water District in partnership with Montgomery Watson) Project Cost: $25,000,000 · Three separate pipelines installed in common trenches and tunnels. Cost Overruns/ · Two potable, one reclaimed pipelines Change Orders: 0 · NO interruption to current water services · Environmental Conformance Management Project Executive: Dave Gardner, Sr. CMC Sr. Project Manager: Dave Cecil Client Project Manager: Ron Ripperger (619) 670-2279 Xeriscape Water Conservation Garden Helix Water District/Otay Water District/Grossmont- Cuyamaca Community College District El Cajon, CA A $3.7 million Water Conservation Garden Project constructed under the auspices of a Joint Powers Authority comprised of Helix Water District, Otay Water District and Grossmont-Cuyamaca Community College District. The 4-acre Water Conservation Garden, designed to Awarded: 10/1/1998 demonstrate landscaping techniques that could result in water savings in the range of 35-70%, will serve as an educational facility, resource Completed: 8/1/1999 outlet and learning center focusing on cost-effective gardening through reduced labor and water efficiency in landscape. The facility also Project Cost: $3,700,000 supports a Community Amphitheater and various support buildings. The project features a wide variety of drought tolerant plantings and has Cost Overruns/ continuous decomposed granite paths throughout. Highland was Change Orders: $207,643 instrumental in coordination of Garden design and construction CMC Project Manager/Supt: proposals, irrigation equipment exhibits, retrofitting landscape for water Steve De Frates efficiency, turf selection, groundcover & hardscape, slope plantings, Xeriscape exhibits and management of in-kind donations. Client Project Manager: Fernando Poveda (619) 482-6518 ~1~ g]~ City of Chula Vista Civic Center Hi land Design BuJld Agreomont CHUlA VISTA Rancho Penasquitos Family YMCA San Diego, CA A 30,000 square foot phased facility, featuring an aquatic facility with multiple pools, including an active use family pool. Rancho Family YMCA includes a covered, heated pool with lap lanes and a spa; an outdoor activity pool with water-slide and interactive water activities; multipurpose room for adult fitness classes, dance and karate; and wellness center featuring cardiovascular and strengthening equipment. Awarded: 3/14/1999 Also included are locker rooms with family changing areas, an outdoor patio and child watch center, and administrative offices. This project Completed: 8/2000 represents Highland's second Design/Build assignment for Metropolitan YMCA. Rancho YMCA serves the northeast San Diego communities of Project Cost: $3,100,000 Rancho Penasquitos, Rancho Bernardo, Scripps Ranch, Sabre Springs, and Mira Mesa. Cost Overruns/ Change Orders: $50,182 Features: Project Executive: · Design/Build contract Dave Gardner, Sr. · Pools feasibility analysis · Project phasing and implementation strategy D/B Project Manager/Supt: · Budgeting and cost allocation related to City's CIP Budget Steve De Frates · Coordination with City of San Diego, including Parks and Client Project Manager: Recreation Department Cindy Phallan 292-4034 Hemet Sheriff Station, Riverside County Sheriff Hemet, CA A $3.2 million, 21,000 square foot Sheriff's Station and District Supervisor's Office with associated site improvements including 100 parking spaces on a 2.7-acre site. Building occupation occurred Thanksgiving weekend 1999. Hemet Station is a full-service operational Sheriff Station, Emergency Operations Command Post, District Supervisor Field Office and Community gathering place in the Valle Vista community. The Design / Build approach for the Hemet Station ensured that the County Sheriff, County Supervisor and the Awarded: 3/1/1999 community were actively involved in facility design. Bordered by remote residential housing, park and recreation facilities and a public school, Completed: 11/26/1999 the facility blends in with its surrounding environment. Project Cost: $3,200,000 Features: · Design/Build Contract Cost Overruns/ Change Orders: $44,514 ° Fast-track design, entitlement & construction, within 11 months of award Project Executive: · Agency control maintained by Shedff Department throughout design lan Gill phase · Construction schedule unaffected by 14-day rain/flash flood conditions D/B Sr. Project Manager: · Design submitted for consideration of AIA Architecture Award Dave Cecil ° Maintained budget while expedencin9 material increases Realized cost of $146 per square foot, including site improvements Client Project Manager: · Facility constructed in logistically challenging location; work was Lt Dana Fredendall accomplished with minimal disruption to local residents or businesses (909) 955-2520 · Storm drain and sewer off-site improvements ,1 1 H hl:md city of Chute viste Civic Center Design Build Agreement c,r~ o, CHUI~ VISTA Lake Elsinore Sheriff Station, Riverside County Sheriff Lake Elsinore, CA A $3.7 million, 28,000 square foot Sheriff's Station, District Supervisor Office and community room on a 2.7 acre site overlooking picturesque Lake Elsinore. Associated with the construction are on-and off-site improvements including 140 on-site parking spaces, and off-site undergrounding of existing power, CATV, and telephone services, Design coordination with the client has ensured that the community received a premier facility that commands a dramatic panoramic vista of Awarded: 7/13/1999 the lake, shoreline, and mountains while improving traffic flow in and around the new facility, The newly completed station is known as Lake Completed: 5/1/2000 Elsinore Station and is a focal landmark structure for this community, Project Cost: $3,700,000 Groundbreaking was conducted July 16, 1999, followed by an aggressive construction schedule culminating in the dedication and Cost Overruns/ move-in during Spring 2000. Change Orders: $155,761 Features: Project Executive: · Highland Partnership, Inc. acting as Design/Builder lan Gill · Fast-track design and construction · Third Sheriff Station for this client D/B Project Manager: Gary Rhoads ,, Site required extensive mitigation with minimal schedule impact (619) 498-2900 · Off-site improvements including undergrounding of power, CATV and telephones Client Project Manager: · Office spaces available for District Supervisor Field Office and Lt Dana Fredendall Community gathering space (909) 955-2520 · Dramatic integration of wood-type materials Highland lan M. Gill Principal Qualification Mr. Gill has 30 years experience in real estate development and Summary construction, comprising comraercial, industrial, residential and institutional projects in the United States and Great Britain. This diverse background enables Mr. Gill to be a valuable asset to his clients in assisting with strategic planning issues, pro forma budgeting, and overall project and program management, from initiation through completion. A founding principal of Highland, he has guided the strategic direction of the firm, focusing on emerging project procurement mechanisms which add value for its' clients. He is currently contracted with the City of San Diego's Centre City Development Corporation to coordinate planning, entitlement and build-out of the new Downtown Ballpark District. Education and M.S., Real Estate and Construction Management, Affiliations Loughborough University, Leicestershire Professional Associate, Royal Institution of Chartered Smweyors Past State Director of the Building Industry Association Past President San Diego Chapter of BIA Past Chairman, Commercial Industrial Council of BIA Chairman, Technical Advisory Committee to the San Diego City Council Land Use and Housing Committee Board Member, San Diego Chapter, Urban Land Institute Active License/ Class 13 General Contractor, State of California Registrations Relevant Design/Build Experience ChulaVista Police Headquarters $ 52M Murrieta Town Square $ 65M Riverside County Sheriff Facilities $ 17M Otay Water District Headquarters $ 10M Pfleger Inst of Environmental Research $ 25M Office Buildings Rohr Engineering Complex $ 70M Palo Verde Professional Building $ 1.5M Plaza at La Jolla Village $ 14M Civic/Law Enforcement Chula Vista Corporation Yard $ 23M National City Police Department $ 9M South Chula Vista Library $ llM Coachella Valley Mosquito & Vector Control District Residential Nestor Apartments, 128 units $ 8M Arlington, TX Apartments, 208 units $ 10M Woodspring Condominiums, 60 units $ 6M Program/Development Management San Diego Ballpark District Redevelopment $ 1.2B Highland David H. Cecil Senior Project Manager Qualitication Mr. Cecil has 31 years of construction management experience in Summary supervisory roles as Operations Manager, Project Manager, Superintendent and Project Engineer. His "hands on" experience enables Mr. Cecil to identify constructability problems on documents prior to the work being put in place. Mr. Cecil's experience in successfully completing a diverse range of construction projects in a timely and cost effective manner has also given him the necessary tools to ensure that all owner goals are met on his projects. Relevant Design/Build Experience Chula Vista Police Headquarters $ 52M (Partial Listing) Federal GSA Child Care Center $ 2M Riverside County Sheriff Stations $ 7M Coachella Valley Mosquito & Vector Control District $ 4M Headquarters and Operations Complex Coroner Forensic Center-East, Indio $ 3M Healthcare / Research & Development Pomerado Hospital $ 40M Scripps Immunology Laboratory $ 10M Hubbs-Sea World Research Institute $2.5M Office Buildines Chula Vista Corporation Yard $ 23M Otay Water District Headquarters $ 10M Eastgate Office Park $ 3M Frost Street Medical Building $ 8M Eastgate Mall Business $ 3M Home Federal Service Center $ 20M Trammell Crow Industrial Parks $12M Mesa Distributing $ 5M Dafoe & Dafoe Distributing $ 3M Hospitality Del Mar Hilton Hotel $ 14M The Rancho Bemardo Inn $ 5M Highland Michael Wood Senior Superintendent Qualification Summ~w Mr. Wood has more than 30 years experience in the commercial construction industry in the San Diego and Southern California Market, serving as Field Supervisor and Project Superintendent on some of Southern California's largest construction projects. Major strengths include supervision of complex commercial, institutional and military projects, concrete placement and finish, and seismic enhancements. Mr. Wood has developed many strong client and industry relationships with a proven record performance and results. Relevant Institutional Experience (Partial Listing) Chula Vista Police Headquarters $ 52M Murrieta Police Headquarters $ 10M San Diego County Inmate Reception Center $ 70M Militar~ / Healthcare U.S. Navy Replacement Hospital, San Diego $ 263M Veterans Home of California, Chula Vista $ 28M Scripps Memorial Hospital, San Diego $ 13M Colleges / Universities Inpatient Tower Renovation, Phase I and II $ 33M University of California, San Diego Clinical Sciences Building $ 22M University of California, San Diego Biological Sciences, Unit II $ 37M University of California, Irvine San Diego State University Science Lab Building $ 26M Military Facility Landing Craft Air Cushion Naval Air Facility $ 19M Oceanside Highland David A. Welshans Vice President, Design Phase Services Qualification Mr. Welshans h as 30 y oars experience i n t he Commercial Summary Construction Industry in the San Diego and Southern California Market, as Manager Preconstruction Services and ' Business Development, Project Manager, Vice President, Manager of Design Phase Services, and Estimator. Dave's proven ability in successfully leading the preconstruction effort on numerous complex design/build projects will be a valuable asset as he leads the Design Phase Process. Education & BS, Industrial Engineering, Cai Poly, Pomona, California Past Associated General Contractors; Point Loma Foundation; Affiliations Mission Valley YMCA Board Member Relevant Municipal Desi,qn/Build Experience Murrieta Police Headquarters $ 10M (Partial Chula Vista Police Headquarters $ 52M Listing) Murrieta Town Square $ 65M Polinsky Children's Center $ 10.3M San Diego Police Headquarters $ 29M San Diego Convention Center $ 160M Healthcare Children's Hospital $ 33M Mercy Hospital Tower Addition $ 25M Sharp Hospital Murrieta $ 40M Retail Viejas Springs Village $17.5M Office ~rstate Bank $ 40M America Plaza $ 100M Imperial Bank Tower $ 35M Plaza at La Jolla Village $ 14M Hospitality/Residential Little Italy ResidentiaITowers $ 55M DVC - Newport Coast $ 122M Research 8, Development E. ~.,. , ~ Intel San Diego Project $ 3.5M Whittier Institute $ 3.5M Highland Michael W. Sirkis Chief Estimator / Contracting Director Qualification Mr. Sirkis has 20 years of design, development and construction Summary experience in management and supervisory roles as Chief Estimator, Manager of Preconstruction, and Senior Estimator. His extensive and varied practical work experiences were instrumental in securing over construction projects totaling more than $500 million. He successfully seized many projects by creatively promoting the owner's best interest through personal service and involvement. His experience has enabled him to thoroughly analyze situations, make insightful decisions and implement wise actions in support of complex construction projects. Education B.S. Construction, Calitbmia Polytechnic State University, San l.uis Obispo Acti,,e License/ Licensed General Engineering Contractor Registration Healthcare Relevant UC Davis Tower II $ 70 M Experience Merrithew Memorial Hospital $ 39.5M (Partial Listing) Mary Birch Women's Center $ 29.5M Children's Hospital of Orange County $ 38.6M St. Francis - Health Service Pavilion $ 28.5M Children's Hospital San Diego $ 32.6M Hoag Cancer Treatment Center $ 15M Educational San Diego State Gateway Addition $ 10.4M Eastlake High School Phase I $ 21.5M Residential SDSU Foundation Phase 1 (Student Living) $ 6M La Vida Real (Senior Living) $ 36.5M Classic Residence by Hyatt (Skilled Nursing) $ 15.2M Public Assembly CSUSM International Building $ 11.2M CSU San Luis Obispo Performing Arts Center $ 23.5M Office Buildings Sorrento South Corporate Center $ 23M Monarch at Scripps Ranch $ 4.5M Del Mar Gateway Office Building $ 18M Pacific Ridge Corporate Center $ 7.2M Sunroad Corporate Center 1-4 $ 40M Carlsbad Pacific Center Ill $ 3M Renovations Hotel Del Coronado $ 50M On Broadway $ 6M Hospitality Del Mar Gateway Hotel (Marriott Full Service) 5; 24M Westin Ballpark Hotel (Phase 1) $ 90M Firm Profile Headquartered in downtown San Diego, with offices in Irvine and San Francisco, Carrier Johnson is committed to providing our clientele with the highest quality of services in the disciplines of architecture, urban planning and interior design. With a practice focused on design excel- lence, technical expertise, and exceptional client service, we provide unique solutions for clients in the corporate, mixed-use and public market realms. With a staff of over 1 10 professionals, Carrier Johnson seeks to create original, thoughtful and distinctive solutions tailored to each client's unique requirements, circumstances, and personality. Our methodol- ogy is distinguished by clear conceptual thinking, keen attention to detail and thoroughness of execution. Active client participation is encouraged in a collaborative design process that addresses the func- tional requirements as well as the creative potential of each project. Long-standing client relationships suggest that our design ambitions are sensitively attuned to user needs, market demands and the goals of each client. in the twenty-one years since its founding, Carrier Johnson has designed and overseen the construction of over twenty million square feet of space. Operating from a strong regional base in the western United States, Carrier Johnson also is engaged internationally from Latin America to Asia. 1301 Third Avenue 2600 Michelson, Suite #400 855 Sansome, Suite 302 San Diego, CA 92101 Irvine, CA 92612 San Francisco, CA 94111 619.239.2353 t 949.955.2353 t 415.772.8200 t 619.239.6227 f 949.955.8201 f 415.772.8201 f County of San Diego Hall of Justice San Diego, California Building: 379,000 square feet Total: 539,000 square feet The $4S million Hall of Justice houses 16 Superior Civil courtrooms and administration, the Marshall, the San Diego County Grand jury and consolidates all of the divisions of the District Attorney. Some 1,200 county employees currently work in the judicial complex. The design/build proiect occupies one full city block with three levels of underground parking for 492 cars, and an additional 39 parking spaces above grade. A strategically located bridge spans Union Street connecting the new courts to the existing courthouse. The 13-story building has two separate elevator cores with their own intense security issues; one for the courts, the other for the District Attorney. Special programmatic areas include: computer rooms, children's waiting, file rooms, shower/locker rooms, food court, court rooms, iudges' chambers, iury lounge and grand jury room. Carrier Johnson provided full service programming, arc'hitecture and interior design within a ' fast track multiple submittal schedule. County of San Diego Central Jail Facility San Diego, California 413,000 square feet total This new $62 million jail, occupying two- rates state-of-the-art security and telecom- thirds of a city block, is connected to the munications features. existing San Diego County Superior Court by a bridge over Front Street. The project was on an accelerated schedule Programmatic areas include 450 cells with that required programming, design, con- two beds each, medical facilities and struction documents and bidding within 12 inmate/staff support services. The complex months of the start date. accommodates underground staff parking for 49 cars and an at grade sally port for an Carrier Johnson, the Associate Architect additional t4 cars as well as large buses. (with HOK as Architect of Record), is responsible for the exterior skin, the vertical The 23,1' high-rise building is constructed circulation, cores, interior design and entirely of concrete to zone 4 seismic speci- graphics of the facility. fications. The overall design fully incorpo- CALTRANS District 11 Replacement Project San Diego, California 301,000 square feet The Caltrans District 11 Replacement Project is a of Caltrans, with two ancillary structures for new 301,000 square foot facility consolidating mechanical central plant and fleet services. existing functions, currently found in several Organization of the campus buildings integrates locations, and providing accommodation for the orthogonal pattern of Old Town and the current and future growth. The site is 10.2 acres dynamic plan configurations of the adjacent located at the northern perimeter of Old Town San railway and interstate. Internally, the buildings are Diego and the San Diego State Historic Park. Taylor planned with modular structural grids and long Street binds the site to the south, Amtrak railway spans, which combined provide ample column easement to the west and interstate transition free, flexible floor space. Building cores are right-of-way to the north and east. located to promote access to natural light for all office areas, foster flexible planning, and work in Schematic Design for the Caltrans District 1] conjunction with external pedestrian bridges that Building Replacement Proiect responds to three connect the three buildings. distinctive obiectives. These obiectives form the the community% context and the site surrounds, accommodation for CaKrans programmatic and '?:' ::I provide an elegant and efficient solution for the City of San Diego and the State of California. A successful balance of the criteria generated from ' these objectives provides an environment supportive of user interaction and contextual primary buildings housing the eleven departments - CALTRANS District 1 1 Replacement Project San Diego, California Yuma Municipal Government Center Yuma, Arizona 150,000 square feet Carrier Johnson was retained to provide master plan, the center provides Mayor Office program verification and architectural and Council Chambers, a public amphitheater and interior design services for the City of Yuma's pedestrian landscaped links to the riverfront new Civic Center. hotel, retail and convention facility along with the City's first public parking structure. Planned for a site ~ocated in the heart of Historic downtown Yuma, the facility will consolidate During the programming phase, space the City's core departments into one central projections through 2020 were prepared and Civic Center. The design objective was to create added to the design. This additional space a user-friendly facility that answered the long- (approximatley 20,000 square feet) will be used term needs of the City while serving as a public as rental space over the next I $ years providing gathering place. The Center will act as the increased city revenue, while allowing for project kick-off to the City's Historic District incremental growth. Redevelopment. As part of the City's historic Yuma Municipal Government Center Yuma, Arizona Bureau of Land Management Boise, Idaho 90,000 s.f. Bureau of Land Management Building 60,000 s.f. Fish ~z Wildlife Forest Service Building Carrier johnson provided architectural and applications. The inclusion of an aestheti- interior design services for GSA's new three- cally pleasing front entrance way, and a story office building housing the Bureau of landscaped courtyard conjure a pedestrian Land Management, and Fish & Wildlife. In friendly environment. addition, a new two-story office is designed to complement the first. The Forest Service To enhance the visitor experience with the occupies portions of this building, agricultural beauty of Idaho, a botanical garden with plants indigenous to the area The complex offers a modern campus-like present a welcome exposure to these new settin9 that is designed to emphasize a facilities. prestigious and professional appearance. These elements are achieved through the relationship of structure and the space they create between them. The palette consists ~ of cast in place concrete, structural brick, and energy efficient glass with spandrel Gordon1 R. Carrier, AIA, NCARI3 General Instrument Regional Headquarters, Principal-In-Charge San Diego, CA Full service architecture and interior design for the 326,000 s.f. office and manufacturing facility, ~.._ Over the last twenty years Mc Carrier has with engineering and R&D labs · ~ established an impressive track record of BFGoodrlch Corporate Headquarters, (formerly ! award-winning projects· As monag/ng ROHR, Inc.), San Diego, CA · ~ ' principal of Carrier ]ohnson, he sets the Master planning, architecture and interior design ?~"~ : tone for the firm's design philosophy and for the 360,000 s.f. award-winning engineering oversees its implementation. The office complex , breadth of his experience encompasses Ford Aerospace & Communications Regional municipal facilities, corporate office Headquarters (turn key) ~ .~ complexes, university campus projects, mixed-use developments, retail centers, residential Architectural design for a 150,000 s.f. office developments, R&D facilities, and manufacturing Industrial Computer Source, San Diego, CA warehouses. For three years Mc Carrier served as the Programming and initial space planning for a architectural representative on the Centre City 132,000 s.f. two-story office and manufacturing Development Corporation (CCDC) board of directors. In facility this capacity he became familiar with the operations and SDG&E Electric Building Renovation, San Diego, CA objectives of San Diego's Downtown Redevelopment Interior design for the 180,000 s.f. corporate Project. Through his professional associations as well as headquarters renovation professional practice, he is an outspoken proponent for SDG&E Mission Control Center Renovation, improving the urban environment by the integration of San Diego, CA quality architecture and urban design. 31,500 s.f. major renovation of a 24-hour occupied Registration/Affiliations: operation facility Registered Architect, California, Arizona, Colorado, Hawaii, Gateway Corporate Plaza, Colorado Springs, CO Maryland, Utah and Nevada Architectural design of a 500,000 g.s.f., multi-level, National Council of Architectural Registration Boards multi-building corporate facilities American Institute of Architects Park West Plaza, San Diego, CA Education: Architectural design for a 144,000 s.f. office, 10,000 s.f. retail, 137,000 s.f. condominium and Bachelors, Architecture, Honors,.University of Michigan 180,000 s.f. 3-1evei underground parking structure iVlasters, Architecture, Design, UNiversity of Michigan Webb Inter West Office Building, Relevant Experience: Colorado Springs, CO County of San Diego, Hall of Justice, San Diego, CA Architectural design for a 125,000 s.f. office Full services architecture and interior design for building Junior Achievement National Headquarters 358,000 s.f. building with 16 courts, District Award-winning architectural design for a 34,000 Attorney's office and underground parking San Diego Government District Master Plan s.f. national headquarters Desman Professional Center, Colorado Springs, CO 16-block study area to unify government offices downtown San Diego Architectural design for a 81,000 s.f. office building Murrieta Towne Square, Murrieta, CA Torrey Pines Business Science Center, San Diego, CA Site analysis and conceptual design for a 36-acre Town Hall facility Architectural design for a 58-acre, 550,000 City of Chula Vista Police Headquarters, phases research and off~ce comptex Chu~a Vista, CA Sorrento Towers, San Diego, CA Eight buitding civic center campus including a 1 Master planning and architectural design for three story office and operations center for the 300,000 g.s.f, twin office buildings Chula Vista Police Department University of San Diego Kroc Institute for Peace and Justice, San Diego, CA Sony Technology Center, Rancho 8ernardo, CA Full service architectural design for the 90,000 s.f. Architecture and interior design for a 120,000 s.f. office/manufacturing facitity premier international conference center SteYen T. Schrader, Architect LPL Financial Services / Plaza III Proiect Manager Eastgate Technology Center, San Diego, CA 100,568 s.f., three-story corporate off~ce building expansion, completing the master-planned campus M£ Schrader, performing in Project Manager and Project Architect roles, has Industrial Computer Source, San Diego, CA over seventeen years of architectural Programming and initial space planning for a · ~:, ~ ~ design, contract documentation and 132,000 s.f. two-story office and manufacturing ::~:~ facility .? : ~-=..:_ :ii!pr°ject management experience' His '~ '~' experience ranges from corporate '~'"-' ~ headquarters and speculative office Carmel Valley Corporate Center, San Diego, CA t'; i .~,? ~ facilities, interior design and corporate 118,000 s.f., two-story, two-building, speculative ~ ~ ~ ~ tenant improvements, high-rise tenant office complex, including substantial upgrades to improvements and code-compliant upgrades, 24-hour building and elevator lobbies, elevator cabs and operation power and gas distribution (mission-critical) restrooms and natura~ stone~dad exterior radius facilities, biotechnology research laboratory and drug wall and courtyard water features manufacturing facilities, aerospace/defense manufacturing facilities, and hotel/restaurant/hospitality Premier, Inc., San Diego, CA projects, among others. 60,000 s.f. two-story corporate off~ce tenant improvements within the Carmel Valley Corporate Registration: Center proiect Registered Architect, California Civic Center Plaza Renovation Education: (Formerly Security Pacific Plaza), San Diego, CA Bachelor of Architecture, University of Oregon Main lobby renovation and building core area upgrades to 215,000 s.f. 18-story high rise Relevant Experience: San Diego Gas ~ Electric Mission Control Center Murrieta Towne Square, Murrieta, CA Renovation, San Diego, CA Site analysis and conceptual design for a 36-acre 31,500 s.f. major renovation of 24-hour-occupied Town Hall facility critical power distribution operations facility. Project construction was coordinated in six phases City of Chula Vista Police Headquarters, over fifteen months. Chula Vista, CA Eight building civic center campus including a I San Diego Gas & Electric Gas Control Center three story office and operations center for the Remodel, San Diego, CA Chula Vista Police Department 7,370 s.f. renovation of 24-hour-occupied critical natural gas network and distribution mainframe Peregrine Systems World Headquarters, facility San Diego, CA Architecture, Programming and interior design of DURA Pharmaceuticals, San Diego, CA Kilroy Carmel Center's multi-phase,S32,425 g.s.f. 43,000 s.f. aerosolized dry power cGMP, FDA- corporate campus (5 office buildings and one park- validated manufacturing and fill facility, including: ing structure) R&D, Quality Assurance and Microbiology laboratories, office and raw materials/quarantine LPL Financial Services / Plazas I & II and finished/released goods warehouse Eastgate Technology Center, San Diego, CA 128,000 s.f., two-story, two-building corporate McGhan Medical Corporation, Santa Barbara, CA office/West Coast headquarters complex for 31,000 s.f. manufacturing/office facility and design worldwide financial analyst and stockbrokerage of new/additional 48,000 s.f. laboratory, Class trading company ~0,000 cieanroom and Class 3 mammary prostheses manufacturing suites RESO # PROJECT# dEN PdECORDED MAIL TO: City of Chula Vista City Clerk 276 Fourth Avenue Chula Vista, CA 91910 SPACE ABOVE THIS LINE FOR RECORDER S USE NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN THAT: 1 The undersigned is OV~'ER or agent of the OV~ER of'the interest or estate stated below in the proper2~.' hereinafter described. 2 The FULL NAME of the OX3.~ER is The City of Chula Vista 3 The FULL ADDRESSS of the O¥\q'4ER is 276 Fourth Avenue. Chula Vista. CA 91910 4. The NATURE OF THE INTEREST or ESTATE of the undersigned is: In fee. 'IN FEE' (Ii'other than l~e, stake 'Sn fee" and insert, for example. '~purchaser under contract of purchase," or "lessee") 5. The FULL NAMES and FULL ADDRESSES of ALL PERSONS, if any, WHO HOLD SUCH INTEREST or ESTATE with the undersigned as JOINT TENANTS or as TENANTS iN COMMON are: NAMES ADDKESSES NONE 6. The full names and full addresses of the predecessors in interest of the undersigned if the property was transferred subsequent to the comsnencement of the work of improvement herein relbn'ed to: NAMES ADDRESSES NONE , A work of improvement on the property hereinafier described '~tas COMPLETED ___(enter date) 8 The work ofimprovemem completed is described as fuilows: (enter Name of Project) 9 The NAME OF THE ORIGiNAL CONT~.CTOR, it' any. for such work of improvement is (enter Name of Contractor)_ 10. The street address of said property ~s (List specific addresses, street names, etc.) 11. The properW on which said work of improvement was completed is in the Ci~ of CHULA VISTA. County. of SAN DIEGO, Stare of California. and is described as follows: (continued on reverse side) Form 1054 (I/94) Page I of 2 Date: Signature of Owner or agent of owner CLIFFORD L. SWANSON Verification for INDIVIDUAL owner : I, fl~e undersigned, declare under penalty of perJury under the laws of the State of Califomia that 1 am the owner of the aforesaid interest or estate in the property described in the above notice: that I have read said notice, that I know and understand the contents thereof, and ttmt the facts stated therein are true and correct. (Signature of oxtmer named in paragraph 2) Verification for NON-INDIVIDUAL owner: I, the undersigned, declare under penal~ of perjury under the laws of the State of California that I am the Deputy Public Works Director/City Engineer of the aforesaid interest or estate in the properr?' described in the "PP,~_SIDENT, PARTNER, MANAGER, AGENT, ETC" above notice; that I have read the said notice, that I knox,,, and understand the contents thereof, and that the facts stated therein are true and correct. Ci~ of Chula Vista Dale and Placr (Signature of person s~gnmg on behalf o1' o~m~er) CLIFFORD L. SWANSON DepuD' Public Works Director/CiD, Engineer Chula Vista, CA Form 1054 (1/94} Page 2 of 2 CITY OF CHULA VISTA Civic Center Expansion and Renovation Guaranteed Maximum Price Summary - EXHIBIT 9 2010 Program Breakdown Updated for February 18, 2003 Council Approval (No Fire Station) DESCRIPTIONS COMPONENT A COMPONENT B COMPONENT C EXTENDED COST Administration - City Hall Building PSB & Council Chambers Old Police Building Renovation ~rea S.F. $/S.F. Subtotals ~,rea S.F. $/S.F. Subtotals Area S.F. $/S.F. Subtotals Area S.F. $/S.F. Subtotals Sprln~l 2004 to Sprln~l 2005 Sprln~ 2005 to Sprln~l 2006 Sprln~12006 to Summer 2007 Sprln~12004 to Summer 2007 BuSdlng Improvements A dminist r ai~on - City Hall 34,711 SF 160.68 5,577,000 0 SF 000 0 SF 000 34,711 SF 16067 5 577,001 Public Services Buildfng 0 SF 0 00 0 30,323 SF 10789 3,272,000 0 SF 000 30,323 SF 10790 3,272,001 Council Chamber Remodel 0 SF 0.00 0 6,000 SF 161.91 971000 0 SF 000 6,000 SF 16183 971,001 Former Police Bldg - First Floor 0 SF 0.00 0 0 SF 000 25,626 SF 14549 3,728,00( 25,626 SF 14548 3,728.001 Fo[met Police Bldg - Lower Level F~oor 0 SF 00O 0 0 SF 0 00 26,535 SF 4039 1,072,00( 26,538 SF 4040 1,072,000, Fire Department Station Number 1 0 SF 000 0 SF 0.00 0 SP 0.00 0 SF 0 00 0 Building Subtota6 34,711 SF 160.67 5,577,000 30,323 SF 139.93 4,243,00~ 52,161 SF 62.02 4,800,00£ 117,195 SF 124.75 14,620,000 Site Subtotals 2,495,00~ 658,00( 655,00< 3,808,000 Allowances Totals 703,00~ 661,00( 625,00< 1,914,000 Highland Parmcrship, Inc. sl~os,ro~,~r,, Co~,, ~.~ 0 M C> ..... 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CITYOrCI IUL\ \'IST.\ i\L\yOR/CUUNCIL Memo (j~¥ To: Lorraine Bennett, Assistant City Oerk From: Anne 1. Harrison, Staff Director Date: 2/10/20æ Re: Appointment to Child Care Commission Mayor Stephen Padilla has nominated Nancy Kerwin to be appointed to the Child Care Commission as an ex-officio member, Please place this on the next City Council agenda for ratification, Nancy will take the place of Emerald Randolph, If you have any questions, please contact me at x5044, Thank you for your assistance, ~L.#~ Anne 1. Harrison Staff Director /0A -I February 11th, 2003 MEMO TO: FROM; SUBJECT: Please calendar the above subject item under Mayor's Report for the next Council meeting. I have included background information for duplication to all members of Council. Thank You. Ends, Cc: Mayor Padilla Tom Oriola Colleen Kelly Susan Tellez (' Cth¡ fYI~e( !hB-/ 02/03/03 15:47 FAX ._~_. ~006 _.~---.--- The Violence Against Children Act To Be Introduced by Senators Barbara Boxer and Joe Biden Pumose The Violence Against Children Act would provide a comprehensive approach to combating violent crimes against children, including tougher penalties, assistance for loca] law enforcement, and help for the children who are victims, Need for this Legislation Last sununer, the nation witnessed a slew of tragedies involving children--their kidnaping, their rape, their torture, their murder. While these stories received a lot of attention in the news media, there are thousands of child victims whose stories do not make the nightly news, According to the Department of Justice, 71 percent of all sex crime victims are under the age of 18; 38 percent of all kidnaping victims are under age 18; and those between the ages of 12 and -17 are over two times more likely to be victims of a violent crime than adults, Even with these startling statistics, a study published in 1999 found that only 28 percent of all crimes against children are actually reported, Clearly, not enough is being done, Combating crimes against children needs to be a higher priority, What the Bill Does The Violence Against Children Act addresses the issue on several fronts: It toughens federal criminal penalties for crimes against children. The bill creates a new federal crime for willfully inj uring or attempting to injure a child, punishable by up to lO years in prison, If the crime is kidnaping, aggravated sexual abuse, or murder, the maximum penalty will be life in prison, The bill also requires the U.S. Sentencing Commission to increase the penalties for existing federal crimes when the victim is under the age of 18, It provides assistance to local police and prosecutors. The bill authorizes $25 million each year in grants for states and localities to combat crimes against children; help train law enfor<:ement officers, prosecutors, and judges in identifying and responding to crimes against children; and create more law enforcement units and courts that specifically deal with crimes against children. Also, whenever a local government asks for investigative, forensic, or prosecutorial assistance in any violent crime against a chil . to make its resources and expertise available, It provides help for the children. The bill authorizes $25 million each year in grants for local governments and nonprofit organizations to provide emergency medical treatment for child victims and , child victims and their families; increase the number of mental health rofessionals who specialize in children who are victims of crime; establish hotlines; an run prevention programs, e ill also authorizes $ 10 million each year for Child Advocacy Centers--facilities that allow law enforcement, child protective services, and the medical communities to work together to provide comprehensive services to victims of child abuse and their families, It requires states to act to protect children, States would be re uired to create a statewide Amber Alert system--a communications network to alert peop e a out child abductions--and a Safe Haven program, where parents are allowed to leave newborn babies in hospital emergency rooms anonymously and with no fear of penalty, Also, states would be required to gather better statistics on the victims of crime and to report to the federal government on how they keep track of children under the child protective services /bB-2 02/03/03 15:47 FAX IiìI 007 -- -~-------~- system. Ih8-.3 -----..:J?2/03.6-º-ª-_15: 45 FAX ~002 VIOLENCE AGAINST CHILDREN ACT Section-by-Section Summary Section 1. Short Title. Names the Act the "Violence Against Children Act of2003," Section 2. Findings Includes findings on the extent of crimes against children and the effect of those crimes against children, Also finds that failure to pay child support is a form of neglect. TITLE I-ENHANCED FEDERAL ROLE IN CRIMES AGAINST CHILDREN Section 101. Enhanced Penalties. (1) New Criminal Statute Creates a new federal criminal statute for willfully injuring or attempting to injure any person under the age of 18. Establishes a maximum penalty of 10 years in prison and a fine, If death of the child results from the crime or if the crime is kidnaping, an attempt to kidnap, aggravated sexual abuse, an attempt to commit aggravated sexual abuse, or an attempt to kill, the maximum penalty is a fme and life in prison, For constitutional purposes, the criminal statute applies only under certain circumstances: (I) if the defendant or the victim engages in interstate or foreign commerce, including crossing a state line, during the course of or as the result of committing the crime; or (2) the defendant uses a firearm or other weapon that has traveled in interstate or foreign commerce. (2) Enhanced Penalties of Existing Crimes Directs the United States Sentencing Commission to provide enhanced penalties for existing federal crimes when the victim is under the age of 18, (3) Review of State Laws Directs the General Accounting Office, within 6 months, to review state criminal penalties for crimes against children and state laws regarding enhanced penalties when the victim of a crime is under the age of 18, /68-'-1 ·02/03/.03 15:46 FAX ~003 Section 102, Enhanced Assistance for Criminal Investigations and Prosecutions by State and Local Law Enforcement Officials. Requires the Attorney General to provide federal assistance -- including technical, forensic, and prosecutorial assistance -- to any state, Indian tribe, or local govenunent that requests assistance with a violent felony against a child, If the Attorney General determines that there are insufficient resources to fulfill all such requests, priority is given to (a) requests that involve offenders who have committed crimes in more than one state; and (b) rural areas that do not have sufficient resources to investigate and prosecute the crime, TITLE II-GRANT PROGRAMS Section 201. State and Local Law Enforcement Assistance Grants. Creates a new grant program to assist states, Indian tribes, and local governments to strengthen law enforcement and prosecution of crimes against children. Grants could be used for a variety of purposes, including: (a) training law enforcement officers, prosecutors, and judges; (b) developing or expanding law enforcement units or courts that specifically target crimes against children; (c) developing policies to prevent, identify, and respond to crimes against children; (d) establishing data collection and communication systems to link police, prosecutors, and courts in helping to track arrests, prosecutions, and convictions of crimes against children; and (e) establishing and strengthening collaboration and communication between law enforcement and child services agencies. To be eligible for funds, a state must have in place an AMBER Alert system (see section 301) and must use, or be in the process of using, the National Incident-Based Reporting System (see section 302), Authorizes $25 million for each ofthe next five years, Federal funds must supplement, not supplant, non-federal funds. Section 202. Education, Prevention, and Victims' Assistance Grants, Creates a new grant program to assist states, Indian tribes, local governments, and nongovenunental organizations to provide education, prevention, intervention, and victims' assistance services regarding crimes against children. Grants could be used for a variety of purposes, including: (a) hotlines; (b) training of professionals; (c) informational and educational services and materials; (d) intervention services; (e) emergency medical treatment; (f) counseling to child victims and their families; and (g) increasing the number of mental health professionals that specialize in child victims, To be eligible for funds, a state must have a Safe Haven program (see section 303), Authorizes $25 million for each of the next five years, Federal funds must supplement, not supplant, non-federal funds. 1~8-5' '02/03f03 15:46 FAX 141004 Section 203, Reauthorization of Child Advocacy Centers, Reauthorizes federal funding for child advocacy centers, fust created in the Victims of Child Abuse Act of 1990, These centers are located in child-mendly facilities and allow law enforcement, prosecutors, child protective services, and the medical and mental health communities to work together to provide comprehensive, child-focused services to victims of child abuse and their families. Over 500 such programs are now open around the country and serve over 100,000 children each year. Authorizes $10 million for each of the next five years. TITLE III-NATIONWIDE PROGRAMS Section 301. Nationwide AMBER Alert. Requires each state receiving a law enforcement assistance grant (see sectioh 201) to have in place a state-wide AMBER Alert communications network for child abduction cases. This system must be in place within 3 years after the date of enactment of the Violence Against Children Act. Section 302, Improved Statistical Gathering, Requires each state receiving a law enforcement assistance grant (see section 201) to use, or to be in the process of testing or developing protocols to use, the National Incident-Based Reporting System, (This program provides the most detailed statistical profile of crimes in the United States, including by the age of the victims. However, it is a voluntary program, and less than half the states currently participate.) Section 303. National Safe Haven. Requires each state receiving a victims' assistance grant (see section 202) to have a Safe Haven program, which permits a parent to leave a newborn baby with a medically-trained employee of a hospital emergency room anonymously without penalty. The state program must have a mechanism to voluntarily collect information about the medical history ofthe family and must include a plan to publicize the state program, To ensure that an abused or intentionally harmed newborn is not left at a hospital so a parent can escape responsibility, a state may have a limited exception to the Safe Haven program in those circumstances, Section 304. Improved Child Protection Services Programs. Directs each state, within 6 months, to report to the Department of Health and Human Services on its child protective services program, including how the state maintains records, keeps track of the children under its care, and verifies the well-being of the children. /08-~ 02/03/03 15:47 FAX ~005 Directs the General Accounting Office, within 6 months. to review state child protective services practices, including how states keep track of the children under their care, and to report to Congress on any legislative changes needed to improve the program. TITLE IV-CHILD SUPPORT ENFORCEMENT Section 401. Child Support Bad Debt Deduction. Expresses the sense ofthe Senate that Congress should extend the existing federal tax law on bad debt to nonpayment of child support, That is. those who do not receive the child support they are owed should be able to deduct that from their federal income taxes; those who fail to pay ordered child support should be required to add the unpaid amount to their income and pay federal taxes on it, (Senator Boxer has introduced separate legislation, S, 127, on this subject.) Ib8-7 0: \JEN\JEN03,094 S.L.C. 108TH CONGRESS 1ST SESSION s. IN THE SENATE OF THE UNITED STATES Mrs. BOXER (for herself and Mr. BIDEN) introduced the following bill; which was read twice and referred to the Committee on A BILL To provide enhanced Federal enforcement and assistance in preventing and prosecuting crimes of violence against children, 1 Be it enacted by the Senate and House of Representa- 2 tives oj'the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE. 4 This Act may be cited as the "Violence Against Chil- 5 dren Act of 2003", 6 SEC. 2. FINDINGS. 7 Congress makes the following findings: 8 (1) People under the age of 18 make up ap- 9 proximately 12 percent of all crime victims known to January 30, 2003 /08..."$ O:\JEN\JEN03.094 S.L.C. 2 1 police, including 71 percent of all sex crime victims 2 and 38 percent of all kidnaping victims, 3 (2) People from the ages of 12 through 17 are 4 over 2 times more likely to be victims of violent 5 crime than adults, 6 (3) It has been estimated that only 28 percent 7 of crimes against children are actually reported, 8 (4) Some 1,200 children die as a result of 9 abuse each year, and approximately 879,000 chil- 10 dren are victims of abuse, 11 (5) Child abuse has long-lasting negative effects 12 upon children and families, including delayed devel- 13 opment, depression, substance abuse, and increased 14 likelihood of experiencing or perpetrating domestic 15 violence as an adult, 16 (6) Most local agencies lack adequate resources 17 to protect and serve the needs of children and fami- 18 lies that are brought to their attention, 19 (7) Failure to pay child support is III itself a 20 form of neglect, as children who do not receive fi- 21 nancial support are more likely to live in poverty, 22 and are therefore more likely to suffer from inad- 23 equate education, a lack of quality health care, and 24 a lack of affordable housing, January 30, 2003 /08-9 0: \JEN\JEN03.094 S.L.C. 3 I TITLE I-ENHANCED 2 ROLE IN CRIMES 3 CHILDREN FEDERAL AGAINST 4 SEC. 101. ENHANCED PENALTIES. 5 (a) IN GENERAL,-Chapter 110 of title 18, United 6 States Code, is amended by inserting at the end the fol- 7 lowing: 8 "§ 2260A. Violence against children 9 "(a) IN GENERAL,-Whoever, whether or not acting 10 under color of law, in any circumstance described in sub- 11 section (b), by force or threat of force willfully injures or 12 attempts to injure any person under 18 years of age-- 13 "(1) shall be imprisoned for not more than 10 14 years and fined in accordance with this title; and 15 "(2) shall be imprisoned for any term of years 16 or for life, and fined in accordance with this title 17 if- 18 "(A) death results from the offense; or 19 "(B) the offense includes kidnaping or an 20 attempt to kidnap, aggravated sexual abuse or 21 an attempt to commit aggravated sexual abuse, 22 or an attempt to kill, 23 "(b) CIRCUMSTANCES,-For purposes of subsection 24 (a), the circumstances described in this subsection are 25 that- January 30, 2003 /(0/3 ..JD 0: \JEN\JEN03.094 S.L.C. 4 1 2 3 4 5 or 6 "(B) usmg a channel, facility, or instru- 7 mentality of interstate or foreign commerce; or 8 "(2) in connection with the conduct described in 9 subsection (a), the defendant employs a firearm, ex- 10 plosive or incendiary device, or other weapon that 11 has traveled in interstate or foreign commerce,", 12 (b) AMENDMENT TO CHAPTER ANALYSIS,-The 13 chapter analysis for chapter 110 of title 18, United States 14 Code, is amended by inserting at the end the following: "(1) the conduct described in subsection (a) oc- curs during the course of, or as the result of, the travel of the defendant or the victim- "(A) across a State line or national border; "2260A. Violence against children.", 15 (c) ENHANCED PENALTIES FOR EXISTING CRIMES 16 WHE!\' COMMITTED AGAINST CmLDREN,-Pursuant to 17 its authority under section 994(p) of title 28, United 18 States Code, and in accordance with this Act and its pur- 19 poses, the United States Sentencing Commission shall re- 20 view and amend its gnidelines and its policy statements 21 to provide enhanced penalties when the victim of a Federal 22 crime is under the age of 18, 23 (d) GAG REVIEW OF STATE LAws,-Not later than 24 6 months after the date of enactment of this Act, the 25 Comptroller General of the United States shall- January 30, 2003 /08 -II O:\JEN\JEN03.094 S.L.C. 5 (1) reVlew the statutory penalties for CTImes against children under State laws and the sentencing practices of the States with respect to those crimes, including whether a State provides enhanced pen· alties when the victim of the crime is a child; and (2) report the findings of the review to Con· gress, 102, ENHANCED ASSISTANCE FOR CRIMINAL INVES- TIGATIONS AND PROSECUTIONS BY STATE 10 AND LOCAL LAW ENFORCEMENT OFFICIALS. 11 (a) IN GENERAL,-At the request of a State, Indian 12 tribal government, or unit of local government, the Attor· 13 ney General shall provide technical, forensic, prosecutorial, 14 or any other form of assistance in the criminal investiga· 15 tion or prosecution of any crime that- 16 (1) constitutes a crime of violence (as defined 17 in section 16 of title 18, United States Code); 18 (2) constitutes a felony under the laws of the 19 State or Indian tribe; and 20 (3) is committed against a person under 18 21 years of age, 22 (b) PRIORITY,-If the Attorney General determines 23 that there are insufficient resources to fulfill requests 24 made pursuant to subsection (a), the Attorney General 25 shall give priority to requests for assistance to- I 2 3 4 5 6 7 8 SEC. 9 January 30, 2003 /68 -12 0: \JEN\JEN03,094 S.L.C. 6 1 (1) crimes committed by, or believed to be com- 2 mitted by, offenders who have committed crimes in 3 more than 1 State; and 4 (2) rural jurisdictions that have difficulty cov- 5 ering the extraordinary expenses relating to the in- 6 vestigation or prosecution of the crime, 7 TITLE II-GRANT PROGRAMS 8 SEC. 201. FEDERAL ASSISTANCE TO STATE AND LOCAL LAW 9 ENFORCEMENT. 10 (a) IN GENERAL,-The Attorney General shall award 11 grants to assist States, Indian tribal governments, and 12 units of local government to develop and strengthen effec- 13 tive law enforcement and prosecution of crimes against 14 children, 15 (b) PURPoSES,-Grants provided under this section 16 shall provide personnel, training, technical assistance, 17 data collection, and other equipment for the more wide- 18 spread apprehension, prosecution, and adjudication of per- 19 sons committing crimes against children, and specifically, 20 for the purposes of- 21 (1) training law enforcement officers, prosecu- 22 tors, judges, and other court personnel to more ef- 23 fectively identify and respond to crimes against chil- 24 dren; January 30, 2003 168-13 O:\JEN\JEN03,094 S.L.C. 7 1 (2) developing, training, or expanding units of 2 law enforcement officers, prosecutors, or courts spe- 3 cifically targeting crimes against children; 4 (3) developing and implementing more effective 5 police and prosecution policies, protocols, orders, and 6 services specifically devoted to preventing, identi- 7 fying, and responding to crimes against children; 8 (4) developing, installing, or expanding data 9 collection and communication systems, including 10 computerized systems, linking police, prosecutors, 11 and courts for the purpose of identifying and track- 12 ing arrests, prosecutions, and convictions for crimes 13 against children; 14 (5) encouraging, developing, and strengthening 15 programs, procedures, and policies that enhance 16 cross-collaboration and cross-communication between 17 law enforcement and child services agencies regard- 18 ing the care, treatment, and services for child vic- 19 tims; and 20 (6) developing, enlarging, or strengthening pro- 21 grams addressing the needs and circumstances of 22 Indian tribes in dealing with crimes against children, 23 (c) APPLICATION,- 24 (1) IN GENERAL,-Each State, Indian tribal 25 government, or unit of local government that desires January 30, 2003 /68-/'1 0: \JEN\JEN03.094 S.L.C. 8 1 a grant under this section shall submit an applica- 2 tion to the Attorney General at such time, in such 3 manner, and accompanied by or containing such in- 4 formation as the Attorney General shall reasonably 5 reqUIre, 6 (2) REQUIREMENTs,-A State, Indian tribal 7 government, or unit of local government applying for 8 a grant under this section shall- 9 (A) describe- 10 (i) the purposes for which the grant is 11 needed; 12 (ii) the intended use of the grant 13 funds; and 14 (iii) the expected results from the use 15 of grant funds; 16 (B) demonstrate that, in developing a plan 17 to implement the grant, the State, Indian tribal 18 government, or unit of local government has 19 consulted and coordinated with nonprofit, non- 20 governmental victim services programs that 21 have experience in providing services to victims 22 of crimes against children; and 23 (C) certify that- 24 (i) any Federal funds received under 25 this section will be used to supplement, not January 30, 2003 It> 8-/£ 0: \JEN\JEN03,094 S.L.C. 9 1 supplant, non-Federal funds that would 2 otherwise be available for activities funded 3 under this section; and 4 (ii) the State, the Indian tribal gov- 5 ernment, or the State in which the unit of 6 local government is located is in compli- 7 ance with sections 301 and 302, 8 (d) AUTHORIZATION OF AI'PROPRIATIONS,-There is 9 authorized to be appropriated to carry out this section 10 $25,000,000 for each of the fiscal years 2004 through 11 2008, 12 SEC. 202. EDUCATION, PREVENTION, AND VICTIMS' ASSIST- 13 ANCE GRANTS. 14 (a) IN GENERAL,-The Attorney General shall award 15 grants to assist States, Indian tribal governments, units 16 of local government, and nongovernmental organizations 17 to provide education, prevention, intervention, and victims' 18 assistance services regarding crimes against children, 19 (b) PURPoSES,-Grants provided under this section 20 shall be used to provide education, prevention, and inter- 21 vention services to prevent crimes against children and to 22 provide assistance to children, and the families of children, 23 who are victims of crime, including- 24 (1) educational seminars; 25 (2) the operation of hotlines; January 30, 2003 Ib8 -lie O:\JEN\JEN03.094 S.L.C. 10 1 (3) training programs for professionals; 2 (4) the preparation of informational materials; 3 (5) intervention services to prevent crimes 4 against children; 5 (6) other efforts to increase awareness of the 6 facts about, or to help prevent, crimes against chil- 7 dren, including efforts to increase awareness in un- 8 derserved racial, ethnic, and language minority com- 9 munities; 10 (7) emergency medical treatment for victims; 11 (8) counseling to victims of crimes against chil- 12 dren and their families; and 13 (9) increasing the supply of mental health pro- 14 fessionals specializing in the mental health of victims 15 of crimes against children, 16 (c) APPLICA'rION,- 17 (1) IN GENERAL,-Each State, Indian tribal 18 government, unit of local government, or nongovern- 19 mental organization that desires a grant under this 20 section shall submit an application to the Attorney 21 General at such time, in such manner, and accom- 22 panied by or containing such information as the At- 23 torney General shall reasonably require, 24 (2) REQUIREMENTs,-A State, Indian tribal 25 government, unit of local government, or nongovern- January 30, 2003 /&8-/7 O:\JEN\JEN03,094 S.L.C. 11 1 mental organization applying for a grant under this 2 section shall- 3 (A) describe- 4 (i) the purposes for which the grant is 5 needed; 6 (ii) the intended use of the grant 7 funds; and 8 (iii) the expected results from the use 9 of grant funds; 10 (B) demonstrate that, in developing a plan 11 to implement the grant- 12 (i) in the case of a State, Indian tribal 13 government, or unit of local government, 14 that the State, Indian tribal government, 15 or unit of local government has consulted 16 and coordinated with nonprofit, nongovern- 17 mental victim services programs that have 18 experience in providing services to victims 19 of crimes against children; and 20 (ii) in the case of a nongovernmental 21 organization, that the nongovernmental 01'- 22 ganization has experience in providing edu- 23 cation, prevention, or intervention services 24 regarding crimes against children or has January 30, 2003 / b8 -IK 0: \JEN\JEN03,094 S.L.C. 12 1 experience in providing services to victims 2 of crimes against children; and 3 (0) certify that- 4 (i) any Federal funds received under 5 this section will be used to supplement, not 6 supplant, non-Federal funds that would 7 otherwise be available for activities funded 8 under this section, provided that the Attor- 9 ney General may waive such requirement 10 for nongovernmental organizations m ex- 11 traordinary circumstances; and 12 (ii) the State, the Indian tribal gov- 13 ernment, the State in which the unit of 14 local government is located, or the State in 15 which the nongovernmental organization 16 will operate the activities funded under this 17 section is located, is in compliance with 18 section 303, 19 (d) AUTHORIZATION OF APPROPRIATIONS,-There is 20 authorized to be appropriated to carry out this section 21 $25,000,000 for each of the fiscal years 2004 through 22 2008, January 30, 2003 /~18-11 0: \JEN\JEN03.094 S.L.C. 13 1 SEC. 203. REAUTHORIZATION OF CHILD ADVOCACY CEN- 2 TERS. 3 The Victims of Child Abuse Act of 1990 (42 U,S,C, 4 13001 et seq,) is amended- 5 (1) in section 211 (42 U,S,C, 13001) by- 6 (A) redesignating paragraphs (6) and (7) 7 as paragraphs (9) and (10), respectively; and 8 (B) inserting after paragraph (5) the fol- 9 lowing: 10 "(6)(A) the National Children's Alliance (NCA) 11 is a nationwide not-for-profit membership organiza- 12 tion whose members are local Children's Advocacy 13 Centers; 14 "(B) the NCNs IlllSSlOn is to assist commu- 15 nities seeking to improve their response to child 16 abuse by supporting the development, growth, and 17 continuation of Children's Advocacy Centers (CACs); 18 and 19 "(C) the NCA provides training, technical as- 20 sistance, and networking opportunities to CACs na- 21 tionally; 22 "(7)(A) CACs are community partnerships 23 committed to a multidisciplinary team approach by 24 professionals pursuing the truth in child abuse inves- 25 tigations; and January 30, 2003 /bB-2tJ O:\JEN\JEN03.094 January 30, 2003 8.L.C. 14 1 "(B) CACs are based in child-friendly facilities 2 that enable law enforcement, prosecutors, child pro- 3 tective services, and the medical and mental health 4 communities to work as a team to investigate, pros- 5 ecute, and treat child abuse; 6 "(S)(A) working in partnership with the Na- 7 tional Children's Alliance, Regional Children's Advo- 8 cacy Centers were established by the Office of Juve- 9 nile Justice and Delinquency Prevention to provide 10 outreach and assistance to communities seeking to II develop a Children's Advocacy Center; and 12 "(B) Regional Children's Advocacy Centers pro- 13 vide information, consultation, training, and tech- 14 nical assistance helping to establish child-focused 15 programs that facilitate and support coordination 16 among agencies responding to child abuse, Regional 17 Children's Advocacy Centers also provide regional 18 services to help Children's Advocacy Centers already 19 in existence;"; 20 (2) in section 212 (42 U,S,C, 1300la)- 21 (A) by striking paragraphs (3) and (6); 22 (B) redesignating paragraphs (4) and (5) 23 as paragraphs (3) and (4), respectively; and 1108-2/ O:\JEN\JEN03.094 January 30, 2003 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 S,L.C. 15 (C) redesignating paragraphs (7), (8), and (9) as paragraphs (5), (6), and (7), respec- tively; (3) in section 213 (42 U,S,C, 13001b)- (A) by striking the caption for the section and inserting "CHILDREN'S ADVOCACY CEN- TERS", and , (B) in subsection (a), by striking beginning with "the Administrator" through paragraph (1) and inserting the following: "The Adminis- trator of the Office of Juvenile Justice and De- linquency Prevention shall establish Regional Children's Advocacy Centers to- "(1) focus attention on child victims by assist- ing communities to develop and maintain local Chil- dren's Advocacy Centers which are child-focused community-oriented facility based programs designed to improve the resources available to children and families affected by child abuse and neglect;"; (C) in subsection (b)(l), by striking", in coordination with the Director,"; (D) in subsection (c)- (i) in paragraph (1), by striking the text and inserting "The Administrator, in consultation with the National Children's /1of3-22 O:\JEN\JEN03.094 S.L.C. 16 I Alliance, shall solicit proposals for assist- 2 ance under this section when existing con- 3 tracts with Regional Children's Advocacy 4 Centers are close to expiration,"; and 5 (ii) in paragraph (4)(B), by striking 6 the matter before clause (i) and inserting 7 the following: "The Administrator shall se- 8 lect proposals for funding that-"; 9 (E) in subsection (d)- 10 (i) in paragraph (1), by striking ", in 11 coordination with the Director,"; and 12 (ii) in paragraph (2), by striking "and 13 the Director"; and 14 (F) by striking subsection (e); 15 (4) in section 214 (42 U,S,C, 13002)- 16 (A) by amending subsection (a) to read as 17 follows: 18 "(a) IN GENERAL,-The Administrator, in consulta- 19 tion with the officials from the Office of Victims of Crime, 20 shall make grants to develop and implement local multi- 21 disciplinary child abuse investigations and prosecution 22 programs, The National Children's Alliance shall serve as 23 the subgrantor of these funds,"; and 24 (B) in subsection (b)(l), by striking ", m 25 coordination with the Director,"; and January 30, 2003 /~(a-Z3 O:\JEN\JEN03,094 S.L.C. 17 1 (5) in section 214B (42 U.S,C, 13004)- 2 (A) in subsection (a), by striking para- 3 graph (2) and inserting the following: 4 "(2) $10,000,000 for each of the fiscal years 5 2004 through 2008."; and 6 (B) in subsection (b)(2), by inserting be- 7 fore the period the following: "and each of the 8 fiscal years 2004 through 2008", 9 TITLE III-NATIONWIDE 10 PROGRAMS 11 SEC, 301. NATIONWIDE AMBER ALERT, 12 Not later than 3 years after the date of enactment 13 of this Act, each State receiving grants pursuant to section 14 201 shall have in place a statewide AMBER Alert commu- 15 nications network for child abduction cases, 16 SEC. 302. IMPROVED STATISTICAL GATHERING. 17 Each State receiving grants pursuant to section 201 18 shall use, or shall be in the process of testing or developing 19 protocols to use, the N ational Incident-Based Reporting 20 System, 21 SEC. 303. NATIONAL SAFE HAVEN. 22 (a) IN GENERAL,-Not later than 3 years after the 23 date of enactment of this Act, each State receiving grants 24 pursuant to section 202 shall have in effect a statute 25 that- January 30, 2003 / bB-2J-j O:\JEN\JEN03,094 S.L.C. 18 1 (1) permits a parent to leave a newborn baby 2 with a medically-trained employee of a hospital 3 emergency room anonymously without any criminal 4 or other penalty; 5 (2) includes a mechanism to encourage and per- 6 mit a hospital employee in the receiving hospital to 7 collect information about the medical history of the 8 family subject to the approval of the parent; and 9 (3) includes a plan for publicizing the State's 10 Safe Haven law, 11 (b) EXCEPTION,-Notwithstanding subsection (a)(I), 12 a State statute in effect pursuant to this section may deny 13 a parent the ability to leave a newborn baby anonymously 14 without any criminal or other penalty if the newborn baby 15 shows signs of abuse or appears to have been intentionally 16 harmed. 17 SEC, 304. IMPROVED CHILD PROTECTION SERVICES PRO- 18 GRAMS. 19 (a) REPORT BY STATE8.-Not later than 180 days 20 after the date of enactment of this Act, each State receiv- 21 ing an allotment for child welfare services under subpart 22 1 of part B of title IV of the Social Security Act (42 23 U,S,C, 620 et seq,) shall submit to the Secretary of Health 24 and Human Services a report detailing the State's pro- 25 gram funded under that subpart, including the process for January 30, 2003 IfpB-Z.5 O:\JEN\JEN03.094 S.L.C. 19 I maintaining records and verifying the well-being of the 2 children under the State's care, 3 (b) GAO STUDy,-Not later than 180 days after the 4 date of enactment of this Act, the General Accounting Of- 5 fice shall report to Congress on State practices and poli- 6 cies under the child welfare program funded under subpart 7 1 of part B of title N of the Social Security Act (42 8 U,S,C, 620 et seq,), The report shall include the following: 9 (1) How States are maintaining records and 10 verifying the well-being of the children under their 11 care, including how well States are keeping track of 12 where those children are, 13 (2) Whether and how the review system being 14 undertaken by the Secretary of Health and Human 15 Services is helping States to reform their child wel- 16 fare system, 17 (3) The best practices being implemented by 18 the States, 19 ( 4) Recommendations for legislative changes by 20 Congress, January 30, 2003 /b8-2~ 0: \JEN\JEN03,094 S.L.C. I 2 20 TITLE IV-CHILD SUPPORT ENFORCEMENT 3 SEC. 401. SENSE OF THE SENATE ON TAX TREATMENT OF 4 CHILD SUPPORT. S It is the sense of the Senate that Congress should 6 pass legislation to extend the current Federal tax treat- 7 ment on bad debt to nonpayment of child support by- 8 (1) allowing those that do not receive the child 9 support they are owed to deduct that amount from 10 their Federal income taxes; and 11 (2) requiring those who fail to pay child sup- 12 port to add the unpaid amount to their income for 13 Federal tax purposes, January 30, 2003 / /¡, 8'-27 ~I~ :-.....-= -::::-..:~~ ~--- 01Y OF CHUlA VISTA Department of Engineering Transit Division MEMORANDUM February 14, 2003 File No, DS 027 FROM: Honorable Mayor and City Council David D, Rowlands, Jr., City Man~ Cliff Swanson, Director of Enginee.;(;,g# Andy Trujillo, Transit Coordinator ~ TO: VIA: SUBJECT: REPORT ON CHULA VISTA TRANSIT (CVT) FOR SECOND QUARTER FY 2002-03 CVT ridership decreased, and continues its downward trend in this second quarter of FY 2002- 03. A total of 832,576 passengers were carried during this second quarter. Productivity decreased compared to last year. Ridership and productivity measures will be analyzed later in the report. Of note during the second quarter: · CVT had a 95,11 % On-Time Performance, exceeding the MTDB goal for the region of 90,00% · CVT completed 99,95% of all trips, exceeding the MTDB goal for the region of 99,80% · Repaired damaged concrete at Southwestern College Transit Center · Wheelchair passenger boardings increased by 82.68% year-to-date (see Exhibit 7) Total CVT ridership for the second quarter was 832,576, a decrease of 4.48% compared with second quarter last fiscal year. FY Table 1 compares CVT ridership for second quarter FY2002- 03 with last fiscal year. Exhibit 1 shows the ridership trend for each CVT route during this second quarter. Exhibit 2 compares total CVT ridership this fiscal year with monthly ridership for the last eight fiscal years, Nine routes experienced ridership decreases ranging from 0,19% to 19.11 %. A decrease of 19,11 % was experienced by Route 708 reflecting lower attendance at the Chula Vista Nature Center, Ridership increases were recorded on Routes 704, 706A, and 711 with increases of 2.57%, 25,67%, and 5,10% respectively for the second consecutive quarter. -Report on Chula Vista Transit (CVT) for Second Quarter FY 2002-03- Route 704 serves H Street Trolley Station, Chula Vista High School and Southwestern College (SWC) via 4th Ave, Naples Street and Otay Ranch Village I. Based on field observations, Transit staff has determined that a major portion of the ridership increase can be attributed to the Otay Ranch Village I, route segment. Route 706A serves the 3rd Avenue Downtown area and reflects increased activity along this segment of the route with increased senior/disabled and youth ridership, Route 711 starts at Plaza Bonita and serves SWC and the Eastlake Greens area. Although this route has experienced ridership increases during FY 2002-03, it is still the least productive of all the CVT routes due to the demographics of its service area, Route 709 had an increase in Revenue Passengers (passengers which pay a cash fare or show a pre-paid pass) with a slight decrease of 0.19% in Total Passengers (Revenue Passengers plus Free Rides and Transfers) As mentioned in my first quarter report a trend of declining ridership is affecting the entire region due to the slow economy, a congested border crossing, and the April 2001 fare increases, Transit staff believes that demographic changes here in Chula Vista have contributed to this trend as well. Westside neighborhoods, served by transit, transitioning from transit-depended residents, Le, youths, to self-driving young adults. CVT's productivity decreased in terms of a few specific ridership measures. Table 2 compares productivity indicators between second quarter FY 2002-03 and second quarter FY 2001-02, Total Passengers per Revenue Mile decreased from 2.46 to 2,34, a 4.87% decrease. System Passengers per Revenue Hour decreased from 32,33 to 29,74, a 8,01 % decrease, Exhibits 3 and 4 present a graphic view of Total Passengers per Revenue Hour and Mile. The two lower horizontal lines on the graphs represent the Metropolitan Transit System's (MTS) service standard for Suburban Feeder routes and the line above represents CVT's current average. As shown, CVT's average in both categories is above the MTS average, Total fare revenue for CVT was $640,064 a 1.10% increase compared to last year's second quarter, This revenue increase is due to a higher total of cash fare passengers and an increase in CVT's proportional share of pre-paid fare revenue. Prepaid monthly pass usage increased slightly from 46,2% to 46,5%. This is encouraging for it demonstrates that CVT has a core of frequent system users, Total Operating Cost increased by 18.30%. This increase can be attributed to our new contract mileage rate, $3,15 versus $2,55 in FY 2001-02, The majority of this increase is due to the Responsible Living Wage Policy in our contract. This policy sets the minimum starting wage for a driver at $9,00 per hour, ATCNancom is currently paying drivers a minimum starting wage of $9,25 per hour, compared to $6,50 per hour, which San Diego Transit was paying CVT drivers during previous years, Additionally, ATCNancom earned all of its performance bonuses during their second quarter, These higher costs increased the Subsidy per Passenger from $0,68 to $0.98 compared to the second quarter FY 2001-02, Exhibit 5 compares FY 2002-D3's Total Fare Revenue to Total Operating Costs. The area between the two lines is the graphic view of the subsidy -Report on Chula Vista Transit (CVT) for Second Quarter FY 2002-03- required to operate the system, The system's Fare Recovery Ratio (fare revenue/operating cost) was 44,06%, a decrease of 14,55% from second quarter last fiscal year, This decline is attributed to the higher operating costs, Exhibit 6 compares CVT's fare recovery ratio to the regional average, In summary, we anticipate that these lower regional ridership and revenue trends will continue until the economy begins to recover. With improved system performance, a few minor routing changes, and a focus on customer service, however, we feel it is possible for CVT to buck this negative trend. Since our budget is fixed, the challenge to our Transit staff over the next few months will be to make CVT more productive without increasing costs, AST:ast Attachments TABLE 1 CVT SECOND QUARTER TOTALS ONLY REPORT FY 2002-03 I I (A) (B) Percent FY 01-02 FY 02-03 Variation BASE STATISTICS Passengers Cash Fares 216,557 218,810 1,04% Pass, Tickets & 430,215 408,640 -5.01 % Token Users Transfers & Free 224,858 205.126 -8,78% TOTALS 871,630 832,576 -5.04% (a) (b) (c) (d) (a &c) (b &d) Revenue Total Revenue Total % % Passengers Passengers Passengers Passengers Change Change Route 701 116,480 153.314 99.839 134,019 -14.29% -12.59% Route 702 73,982 94,271 72,610 91,793 -1.85% -2.63% Route 703 79,869 106,461 74,339 99,586 -6.92% -6.46% Route 704 45.329 56,904 46,210 58.368 1,94% 2,57% Route 705 66,453 93.506 59.836 82.296 -9,96% -11.99% Route 706 45,836 63,834 47,038 58,778 2,62% -7,92% Route 706A 20,549 25,601 27,440 32,173 33,53% 25,67% Route 707 19,211 29,121 20,641 28,612 7,44% -1,75% Route 708 7.879 7,879 6,373 6.373 -19,11% -19,11% Route 709 122,345 177.201 126,403 176,868 3,32% -0,19% Route 711 13,223 15,891 11,753 16,702 -11,12% 5.10% Route 712 35,616 47,647 34,968 47,008 -1,82% -1,34% 646,772 871,630 627,450 832,576 -2.99% -4.48% 4 TABLE 2 CVT SECOND QUARTER TOTALS ONLY REPORT FY 2002-03 I I (A) (B) Percent FY 01-02 FY 02-03 Variation BASE STATISTICS Farebox Revenue $264,729 $267,943 1.21% Pass Sales Revenue (Includes tokens) $368,391 $372,121 1,01% Total Fare Revenue $633,120 $640,064 1,10% Operating Cost $1,227,894 $1,452,563 18,30% Net Cost $594,774 $812,499 36.61% Revenue Miles 354,372 355,164 1,23% Total Miles 365,784 384,153 6.60% Revenue Hours 26,960 28,002 5,31% Accidents Property Damage 9 6 -50.00% Personal Injury 5 3 -25,00% PRODUCTIVITY INDICATORS Total Passengers/Revenue Mile 2.46 2,34 -4.88% Rev. Passengers/Revenue Mile 1,83 1.77 -3,28% Total Passengers/Revenue Hour 32,33 29,74 -8,01 % Operating Cost/Revenue Mile $3.46 $4,09 18.21% Net Cost/Revenue Mile $1.68 $2,29 36.31% SubsidylTotal Passenger $0,68 $0,98 44,12% Revenue/Cash Fare Passenger $1,22 $1.22 0% Revenue/Pass User $0,86 $0.91 5,81% Revenue/Revenue Passenger $0,98 $1,02 4.08% Average RevenuelTotal Passenger $0,73 $0.77 5.48% Fare Revenue/Operating Cost 51.56% 44,06% -14.55% 5 M o )0- LL W I- :J o 0:: )0- m a.. - :I: ø 0:: w c i2 > o .... .- .0 .- .s::. ..... x w « ~ N M .. '" cø cø .... cø '" .. N C> Q C> C> C> C> Q C> Q C> .. ~ .... .... .... .... .... ~ .... .... .... .... ~ .... t t t t , f ~ t t T t I Z :::I .... ~ :;¡ 0:: 0.. « 0:: « :;¡ III W u... Z co.. « .... It> C> ON co '" 0 .... ....~ .... ~ 0 0 .... .... 0 ~ .... .... .... .... . U W Q I ¿ êi z I J I- U 0 I II. W m I C) :::I « ...I :::I .... 0 0 C> C> 0 0 C> 0 C> C> C> 0 0 C> 0 0 0 C> C> 0 0 C> C> 0 0 Ö Ö Ö Ö Ö Ö Ö Ö co .... CD I/) .. CO> N ... Z ::J .... 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Q) - -. :::r ;0 c.. en ;¡ -. ::J ::J 0 en :J CD CC CD 0 CD :J ::J ..., Q) < en 0 ::J CD :::r - -. < c.. 0 "C "'U "C Q) 3 1"'+ Q) -- ..., CD 0 ~ ::J ro+- ::J O\IöA cõ,.,.M~'I\.c.....~, ~ -<;> I\~( ""3 HER MAN 0 S LOP E Z, I N C I,A BODEGA February 18, 2003 DBA: · LA BODEGA· MAYOR EO 388 CALLE PRIMER" SANYSIDRO. CA 92173 (619)662-3032 City of Chula Vista Honorable Mayor City Council Members · HERMANOS LOPEZ MARKET '10 E. OLIVE ST. SANVSIDRQ. CA92173 (619)428-4481 BEER AND WINE APPLICATION My name is Carlos Lopez, of Hermanos Lopez, Inc. I am a member of the third generation of the Lopez family and representative of our company. · LA BODEGUITA 4174 BEYER BLVD. SAN YSIDRO, CA 92173 (619)428-0142 Recently Hermanos Lopez, Inc submitted an application to the City of Chula Vista for the consideration of a Beer and Wine Off Sale license. The application to approve was reviewed and rejected by the Chula Vista Police Department. Today I am here to request a re-evaiuation of the application, I would like to share with you some reasons as to why the application should be reconsidered and passed. Hermanos Lopez, Inc better known as La Bodega Market and Mercado Hermanos Lopez in San Ysidro was established in 1968. For the past 35 years we have been providing the South Bay and cross border residents with a family grocery environment. We have managed to provide our customers with groceries, fresh meats, produce and excellent service in each of our 3 locations. I would like to add that we are a responsible group with a spotless record with the ABC. On more than one occasion we have received recognition for the excellent effort our cashiers have made in controlling the sale to minors. Our goals in Chula Vista are consistent with our history in our San Ysidro markets: To provide products and services that will attract the housewife and the entire family. Our marketing research has indicated that families in this area need services like the ones we are planning to provide: Services like groceries, full service meats, fresh produce, a complete kitchen, bakery and tortilleria. In order for a full service supermarket to be successful, it requires the entire line of departments. Among those we have beer and wine, a department that represents for us less than 3.5% of total store sales but that is essential to achieve the level of sales required to support a market of this size. Our marketing and advertising will focus on attracting and retaining the typical supermarket consumer. We plan to do this through print, radio and television. Unlike some other small independent supermarket operators, Hermanos Lopez, Inc does not focus on attracting the beer-only consumer. Quite the contrary, in previous occasions we have made it a point to deter this type of consumer by limiting the hours of the sale and cutting back on the number of single serve items offered for sale. For the safety of our customers and employees, we will staff full time security, as we do in our San Ysidro locations. Our focus is always to maintain the family shopping atmosphere that our shopper's have become accustomed to. P.O BOX 434180 ' SAN YSIDRO, CA. 92143 . FAX (619) 428-2775 388 CALLE PRIMERA . SAN YSIDRO, CA 92173 . TEL, (619) 662-3030 HERMAHOS LOPEZ, IHC, bA. BODEGA DBA: Your goals are our goals. I believe we have that in common. · LA BODEGA - MAYQREO 388 CALLE PRIMERA SANVSIDRO. CA 92113 (619)662-3032 Today we have plans to expand into Chula Vista with two locations with each location requiring an investment of over one million dollars. This first sizeable investment will provide over 50 full time positions to the residents of Chula Vista. We have projected that by the end of the first year, we will generate an estimated 8 million dollars in annual sales, bringing to Chula Vista additional income in the form of taxes. · HERMANOS LOPEZ MAAKET 110 E.QUVE ST, SANVSIDRO. CA92173 (619)428_4481 The building and parking lot areas will be significantly remodeied bringing to the area a much-needed revitalization. I have brought with me today renderings of the new façade and proposed interior layout. · LA BODEGUITA 4174 BEYER BLVD. SANYSIDRO, CA 92173 (619) 428-0142 Today our group asks only that you reconsider our application and allow us to operate a full service supermarket in Chula Vista. The new business is located at 1193 Broadway across the street from the Costco shopping center in the old Play Co Building. If you have any questions please share them with me now. Sincerely, Carlos Lopez p,O BOX 434180 . SAN YSIDRO, CA. 92143 ' FAX (619) 428-2775 388 CALLE PRIMERA . SAN YSIDRO, CA 92173 ' TEL. (619) 662-3030 _'~,' ::. 3.'.? 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Cr··-_---=-- ,.~-------~' , - :1 ~ ~ ~. \ "-; " , , if ,.-- ~' ! You are right in wishing to leave a memorable legacy to the City and I hope that also includes the citizens of this City, Yes, we are at a crossroads in our development. The decisions made by you and the Council in the next few months will determine whether we develop into a unique city, with a character and quality of our own, or whether we develop into a bedroom community that depends on San Diego for life and character, Remember that San Diego is reknowned for its Balboa Park and New York City for its Central Park,7fidhußt.Arw¿ ¿Ãoe. Y ? I was saddened to read of your remarks at the San Diego Country Club on February 7th., The opinion piece in the Star News quotes you as saying that "those who organize best are heard loudest." At least this time, we were not called "outsiders'. The "outsiders" remark resulted in a flood of e-mail messages and telephone calls to your office which were said to be upsetting to you, I would not be surprised that the unfortunate use of the phrase "well organized zealots" by Mr, Burgess, may result again in an avalanche of messages and phone CallS,;t¡r' Again you have misunderstood the message of the community. You state our message is "all change and any change is bad", We have never said that. We say that we are opposed to the dense Hong-Kong-like plan that was offered and we offered three different plans for development! If you insist in hiding your head in the sand and not heeding the wishes of the citizens of this City, you do so at your own peril for you will fmd that the opposition intensifies and broadens, For too long, the administration of Chula Vista has proceeded for the benefit of developers without taking into account citizen input. The combination of greedy developers and misguided city officials who insist on pursuing projects that are inappropriate and not in the community interests has resulted in this wrong-headed move to rapid development, impacted schools and bumper to bumper boulevards, You have stated TO US that you are willing to work to resolve differences, but then you say that we oppose any and all change. Remarks like this pit the community against itself, These are not the actions of a visionary leader, We wan~that visionary, Yes, develop the 125 acres ofBayftont and the 275 acres of Port Commission acreage simultaneously and in such a way that the environment is protected and yet allow for public access and economic recompense, Then indeed you will have left us a legacy for which you will be honored and blessed by generations into the future, ~þMy