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September 10, 2019File ID: 19-0341
19-0383
19-0392
TITLE
ORDINANCE OF THE CITY OF CHULA VISTA REPEALING ORDINANCE NO. 2384, RELATING TO THE
ESTABLISHMENT OF THE TELEGRAPH CANYON DRAINAGE DEVELOPMENT IMPACT FEE (SECOND
READINGAND ADOPTION)
RECOMMENDED ACTION
Council adopt the ordinance.
SUMMARY
On August 7, 1990, the City Council adopted Ordinance No. 2384 (Attachment 1) approving the Telegraph
CanyonDrainage Plan (the “Drainage Plan”or “Plan”) and establishing the Telegraph Canyon Drainage
Basin Development Impact Fee (the “Telegraph Canyon Drainage Basin DIF”) to fund planned drainage
facilities described in thePlan. Asubsequent Nexus Studywas adopted on January 26, 2016, byOrdinance
No. 3361 (Attachment 2), approving the Telegraph Canyon Drainage Channel Nexus Study DR203, and
amending Ordinance No. 2384 accordingly.
At this time, there areno remaining propertiesto be developed within theboundaries established by the
Drainage Planthat would be subject to the Telegraph Canyon Drainage Basin DIF. Therefore, staff is
recommending the repeal of Ordinance No. 2384, relating to the establishment of the Telegraph Canyon
Drainage Development Impact Fee.
ENVIRONMENTAL REVIEW
The activity is not a “Project” as defined under Section 15378 of the California Environmental Quality Act
StateGuidelines; therefore, pursuant to State Guidelines Section 15060(c)(3) no environmental review is
required.In addition, notwithstanding the foregoing, the “Project” also qualifies for an Exemption pursuant
to Section 15061(b)(3) of the California Environmental Quality Act State Guidelines.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable.
DISCUSSION
Background
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Chula Vista’s General Planand “Growth Management” ordinance require that adequate public facilities be
availableto accommodate new development. In the early 1990’s, development of properties was proposed
within the boundaries served by the Telegraph Canyon Drainage Basin (the “Drainage Basin”) (see
Attachment 3), which handled a limited amount of surface and storm water runoff.
Recognizing that additional drainage facilities would be needed to accommodate the surface and storm
water runoff resulting from development of property within the boundaries of the Drainage Plan, the City
Council held a public hearing on August 7, 1990 and adopted Ordinance No. 2384, which established the
Telegraph Canyon Drainage Basin DIFto fund planned drainagefacilities described in the Drainage Plan.
The Drainage Plan established the following: 1) the boundaries of the Telegraph Canyon Drainage Basin,
the Telegraph Canyon Drainage Improvement District and the area of benefit of the Telegraph Canyon
DrainageImprovements; 2)the extent of the additional drainage facilities needed to accommodate new
development in the Drainage District; and3)a proposed allocation of fees to pay for the drainage facilities.
A subsequent Nexus Study was preparedto reanalyze and reevaluate the adequacy of the existing
Telegraph Canyon Channel facilities to accommodate the surface and storm water runoff resulting from
development of properties within the DrainageBasin and to identify remaining facilities to be built to serve
the same purpose, and benefit the same land, for which the Telegraph Canyon Drainage DIF was
established(the “2016 Nexus Study”).In January 2016, Council adopted Ordinance No. 3361 amending
Ordinance No. 2384 in accordance with the 2016 Nexus Study.
Ordinance No. 2384 originally establishedthe Telegraph Canyon Drainage Basin DIFin the amount of
$3,922 per gross benefit acre of undeveloped land for each development project within the Telegraph
Canyon Drainage Benefit area, including tentative maps, tentative parcel maps, or building permits, to be
paid before the approval of the project by the City. The Telegraph Canyon DrainageBasin DIF was
subsequently increased to $4,579per acre byResolution 18965on April 21, 1998. The 1998 update
implementedinflationary adjustments contemplated in the original ordinance, and the fee has remained
unchanged at $4,579since the 1998 action.
Telegraph Canyon Drainage Basin Improvements& DIF
The planned improvements, as identified bythe Drainage Plan and 2016Nexus Study, mitigate the impacts
resulting from the development of properties within the Drainage Basin. At this time, all necessary
improvements identified bythe Drainage Plan and 2016 Nexus Study have not yet been completed.
However, all of the properties within the Drainage Basinhave been developed, with the exception of one
2.45-acre parcel.
Theremaining undeveloped parcel has a General Plan designation of OS (Open Space) and is zoned PC
(Planned Community) in Rancho del Rey, where it is designated OS-1. Permitted uses in that zone include
parks, recreational facilities and utilities. Conditional uses permitted in the OS-1 zone are limited to fruit
and vegetable stands and public and quasi-public uses. All uses that would be allowed on this parcel are
exempt from development impact fees and therefore, subsequent permitted development of the parcel
would result in the collection of no Telegraph Canyon Drainage Basin DIF.
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As of the end of fiscal year 2018-19, the Telegraph Canyon Drainage Basin DIF fund balance totals
approximately $3.9 million. To complete all of the improvements identified in the Drainage Plan and 2016
Nexus Study, staff estimates more than $12 milliondollars will be required. Staff is working with a
consultant to obtain grant funding to augmentthe current balance in the Telegraph Canyon Drainage Basin
DIFin order to complete the improvements.
Withno other apparent properties left subject to the Telegraph Canyon Drainage Basin DIF, staff
recommends that it be repealedand that Chapter 16 (Development and In-Lieu Fees) of the City’s Master
Fee Schedule be amended to reflect thischange. If approved, the resolution would be effective upon the
second reading of the ordinance. Following expenditure of all DIF monies, the fund will be closed.
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the City Councilmembers and has found thatMayor Casillas
Salasand Councilmember McCannhaveproperty holdings within500 feet of the boundaries of the
property thatis the subject of this action. However, to the extent that any decision would have a reasonably
foreseeable financial effect on the member’s real property, the effect would be nominal, inconsequential, or
insignificant. Consequently, pursuant to California Code of Regulations Title 2, sections 18700 and
18702(b), this item does not present a real property-related conflict of interest under the Political Reform
Act (Cal. Gov't Code § 87100, et seq.).
Staffis not independently aware, and has not been informed by any City Council member, of any other fact
that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
All staff costs associated with the preparation of this report are included in the adopted budget. Approval
ofthe repeal Ordinance will stop all future collection of the Telegraph Canyon Drainage Basin DIF. The
Telegraph Canyon Drainage Basin DIF fundwill be closed followingthe expenditure of the fund balanceon
a future capital improvement project.
ONGOING FISCAL IMPACT
There is no ongoing fiscal impact as a result of this action.
ATTACHMENTS
Attachment 1 –Ordinance No. 2384
Attachment 2 –Ordinance No. 3361
Attachment 3–Map of Telegraph Canyon Drainage Basin
Staff Contact: Kimberly Vander Bie –Associate Planner
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SECOND READING AND ADOPTION
ORDINANCE NO. ________
ORDINANCE OF THE CITY OF CHULA VISTA REPEALING
ORDINANCENO. 2384RELATING TO THE
ESTABLISHMENT OF THE TELEGRAPH CANYON
DRAINAGEBASIN DEVELOPMENT IMPACT FEE
WHEREAS, the City’s General Plan and “Growth Management” ordinance require
adequatepublic facilities be available to accommodate new development; and
WHEREAS, in the early 1990’s, development of properties was proposed within the
boundaries served by the Telegraph Canyon Drainage Basin, which handled a limited amount of
surface and storm water runoff; and
WHEREAS, recognizing that additional drainage facilities would be needed to
accommodate the surface and storm water runoff resulting from new development, the City
Council held a public hearing on August 7, 1990 and adopted Ordinance No. 2384; and
WHEREAS, Ordinance No. 2384 approved a report entitled, “City of Chula Vista,
California, Telegraph Canyon Drainage Plan,” dated June 6, 1990, and on file with the City
Clerk, which establishes the boundaries of the Telegraph Canyon Drainage Basin, the boundaries
of the Telegraph Canyon Drainage Improvement District and the boundaries of the area of
benefit of the Telegraph Canyon Drainage Improvements, the extent of the additional drainage
facilities neededto accommodate new development in the Drainage District,and a proposed
allocation of fees to pay for the drainage facilities; and
WHEREAS, Ordinance No. 2384 also established the Telegraph Canyon Drainage Basin
Development Impact Feein the amount of $3,922.00 per grossbenefit acre of undeveloped land
identified within the Telegraph Canyon Drainage Plan; and
WHEREAS, on April 21, 1998 the City Council held a public hearing and approved
Resolution 18965, which increased the per acre fee to $4,579.00based upon inflationary
adjustments contemplated in the original ordinance, and to date,remains unchanged; and
WHEREAS, there areno remaining propertieswithin the boundaries established by the
Telegraph Canyon Drainage Plan that aresubject to the Telegraph Canyon Drainage Basin
Development Impact Fee; and
WHEREAS, the Telegraph Canyon DrainageBasin improvements are incomplete; and
WHEREAS, the existing balance in the Telegraph Canyon Drainage Development
Impact Fee and future grant funding will be used to complete the improvements in the Telegraph
Canyon Drainage Basinthat are needed to protect the public’s health, safety and welfare,and to
assume effective implementation of the City’s General Plan and“Growth Management”
ordinance; and
ΑΏΐΘȃΏΘȃΐΏ !¦¤£ Packet0 ¦¤ 32
Ordinance No. _____
Page 2
WHEREAS, the activity is not a “Project” as defined under Section 15378 of the
California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines
Section 15060(c)(3) no environmental review is required. In addition, notwithstanding the
foregoing, this subject actionalso qualifies for an Exemption pursuant to Section 15061(b)(3) of
the California Environmental Quality Act State Guidelines.
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as
follows:
Section I.Ordinance 2384 is repealed in its entirety.
Section II.Severability
If any portion of this Ordinance, or its application to any person or circumstance, is for
any reason held to be invalid, unenforceable or unconstitutional, by a court of competent
jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or
unconstitutionality shall not affect the validity or enforceability of the remaining portions of the
Ordinance, or its application to any other person or circumstance. The City Council of the City of
Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase
of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses
or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional.
Section III. Construction
The City Council of the City of Chula Vista intends this Ordinance to supplement, not to
duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in
light of that intent.
Section IV. Effective Date
This Ordinance shall take effect and be in force on the thirtieth day after its final passage.
Section V. Publication
The City Clerk shall certify to the passage andadoption of this Ordinance and shall cause
the same to be published or posted according to law.
Presented by:Approved as to form by:
_______________________________________________________________
Kelly Broughton,FASLAGlen R. Googins
Director of Development ServicesCity Attorney
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September 10, 2019File ID: 18-0528
TITLE
A.RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING A MAP SHOWING THE
BOUNDARIES OF T
HE TERRITORY PROPOSED TO BE INCLUDED IN THE BAYFRONTPROJECTSPECIAL
TAX FINANCING DISTRICT
B.RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING ITS INTENTION TO
ESTABLISH THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT AND TO AUTHORIZE THE
LEVY OF A SPECIAL TAX THEREIN TO FINANCE PUBLIC AND PRIVATEIMPROVEMENTS,AND
MAINTENANCE AND SERVICES
C.RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DECLARING THE NECESSITY TO
INCUR A BONDED INDEBTEDNESS OF THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICTTO
BE SECURED BY SPECIAL TAXES LEVIED WITHIN SUCH DISTRICT TO FINANCE PUBLIC AND PRIVATE
IMPROVEMENTS
RECOMMENDED ACTION
Council adopt the resolutions.
SUMMARY
Pursuant to the Amended and Restated Chula Vista Bayfront Master Plan Financing Agreement, dated June
20,2017 (the “A&R Financing Agreement”), between the City of Chua Vista (the “City”) and the San Diego
Unified Port District (the “Port District”) and the Disposition and Development Agreement entered into as of
May 7, 2018 (the “DDA”), by and among the Port District, the City, and RIDA Chula Vista, LLC, the City is
initiating proceedings to consider the formation of the Bayfront Special Tax Financing District (the “Bayfront
District”) for the purpose of financing the acquisition or construction of certain public and private
improvementsand the funding of certain public services within the Chula Vista Bayfront Master Plan area.
Tonight’s actionswill:
(a)adopt a boundary map of the Bayfront District;
(b)declare the intention of the City Council to:
(i)establish the BayfrontDistrict;
(ii)finance certainauthorized facilities and servicesthrough the Bayfront District;
(iii)authorize the levy of special taxes within the BayfrontDistrict;
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(iv)request the applicable officer of the City prepare the Bayfront Project Special Tax Financing
DistrictReport; and
(v)set apublic hearing related to the formation of the Bayfront District and the levy of special
taxes for the Bayfront District for October 15, 2019 at 5:00 p.m.; and
(c)declare the necessity of the Bayfront District to incur a bonded indebtednessto finance certain
authorized facilitiesand set a public hearing related to the necessity of the Bayfront District to incur
a bonded indebtedness to be held concurrently with the formation public hearing.
ENVIRONMENTAL REVIEW
The Director of Development Services has reviewed the proposed activity for compliance with the California
EnvironmentalQuality Act (CEQA)and has determined that the activity is not a “Project” as defined under
Section 15378 of the State CEQA Guidelines because the proposed activity consists of the creation of a
governmental fiscal/funding mechanism which does not result in a physical change in the environment;
therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA.
Thus, no environmental review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable.
DISCUSSION
In 2002, the City and the Port District began a collaborative planning process to create a master plan for the
approximately535-acre Chula Vista Bayfront area. The Chula Vista Bayfront Master Plan (CVBMP) was
designed to transform Chula Vista’s underutilized industrial Bayfront landscape into a thriving residential
and world-class waterfront resort destination. The CVBMP represents the last significant waterfront
development opportunity in Southern California and is the result of a decade-long joint planning effort by a
broad coalition of stakeholders, the Port District, the City, and Pacifica Companies.
On May 8, 2012, the City and the Port District entered into a Bayfront Master Plan Financing Agreement (the
“Original Financing Agreement”) for the CVBMP. The Original Financing Agreement identified the rights and
obligations of each agency, with respect to the financing, development, and construction of public
improvements, infrastructure, and a planned convention center in the CVBMP. To this end, the Original
Financing Agreement identified revenue sources necessary to construct and maintain public improvements,
infrastructure, and other facilities necessary to implement the CVBMP in accordance with the Final
Environmental Impact Report (FEIR) approved by the City and the Port District on May 16, 2010. One of the
revenue sources identified in the Original Financing Agreement was the City’s Tourism Marketing District
(TMD). The TMD functionedin a similar manner to a transient occupancy tax (TOT) and included an
assessment rate of 5% of hotel room rental revenues. Subsequent to the adoption of the Original Financing
Agreement, the TMD was disestablished in 2012.
The Original Financing Agreement was subsequently amended and restated by the A&R Financing
Agreement to recognize additional rights and obligations of the respective agencies. One such additional
obligation acknowledged by the City in the A&R Financing Agreement was that the City would pursue
creation of a mechanism to generate additional occupancy-based revenues, replacing the previous TMD
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assessments. The A&R Financing Agreement contemplated creation of the desired public financing
mechanism under the Mello-Roos Community Facilities Actof 1972 (the “Mello-Roos Act”), assessment laws
pursuant to the City’s Charter authority, other applicable state assessment laws, Port District charges or
surcharges, or other Developer-sponsored or imposed charges or surcharges.
The establishment of a special tax financing district that functions in a manner similar tothe previous TMD
has been determined to be the preferred revenue generation mechanism. Special tax districtsmay be
established to provide funding for the acquisition and construction of public and private improvements
and/or the provision of public services by levying an annual “special tax”on parcels within aspecial tax
financing district andby issuing bonds secured by the levy of special taxes. The ongoing administrative costs
of special tax financing districtsare also payable from thespecial taxes levied at no cost to the City.
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 Community Facilities Districts (CFDs)as a public financing mechanism for (1) the
construction and/or acquisition of public infrastructure, and (2) the financing of authorized public services.
On April 28, 1998, Council, acting under its Charter authority, enacted the “Chula Vista Community Facilities
District Ordinance” (the “CFD Ordinance”). The Ordinance adopted the Mello-Roos Act with modifications to
accomplish the following: (1) incorporate all maintenance activities authorized by the “Landscaping &
Lighting Act of 1972” (the “1972 Act”); (2) include certain maintenance activities not listed in the Mello-Roos
Act or the 1972 Act; and (3) establish an operating reserve fund for open space districts.
On April 9, 2019, Council approved Resolution 2019-051 adopting the Goals and Policies as City Council
Policy 505-04, with the following modifications:
Minor textual edits;
Updates to reflect standard practices;
For districts issuing bonds, increasesthe maximum period of capitalized interest from 18 months to
24 months;
For maintenance and/or service districts, requiresthe inclusion of life-cycle replacement costs for
maintained facilities in theRate and Method of Apportionment; and
For maintenance and/or service districts, requiresthe authorization of annual inflationary
adjustments to the maximum special tax rates, to be based on the most specific applicable index.
On July 9, 2019, the Council placedan ordinancecodifying the CFD Ordinance as Chula Vista Municipal Code
(CVMC) Chapter 3.60 (Community Facilities Districts –General) and creating the Bayfront Project Special
Tax Financing District Procedural Ordinance (CVMC Chapter 3.61)on first reading. Second reading and
adoption of the ordinance occurred on July 23, 2019(the “July 2019 Ordinance”). The July2019 Ordinance
expanded the list of explicitly authorized services and facilities eligible tobe financed pursuant to Chapters
3.60 and 3.61 to include the following:
Transportation services;
Promotion of public events and tourism;
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Security, sanitation, graffiti removal, street and sidewalk cleaning and other municipal services
supplemental to those normally provided by theCityor other service provider;
Parking improvements;
Energy efficiency, water conservation, and renewable energy improvements;
Ecological and sustainability educational improvements; and
Conventioncenter facilities.
As adopted, Chapter 3.61 providesa procedure for financing certain public improvements and maintenance
and services to serve the CVBMP area, through the establishment of theBayfront Project Special Tax
Financing District. Chapter 3.61 incorporates certainprovisions of the Mello-Roos Act and the California
Streets and Highways Code, while identifying certain other provisions that will not apply or that will be
modified. Modifications and exclusions of the Mello-Roos Act provisions largely relate to the formation
process for the future Bayfront District, which will require an election of landowners, not registered voters.
The Bayfront District special tax will be levied by hotel and campsite operators on transient occupants (hotel
and campsite visitors). The special tax will not be leviedon traditional residential uses. As such, it is more
appropriate for the Bayfront District electors to be the landowners, rather than the registered voters of the
Bayfront District.
Staff recommends that Council adopt the Bayfront District boundary map,initiate formal proceedings to
consider the formation of the Bayfront District,and declare the necessity of the Bayfront Districtto incur
bonded indebtedness. The City has retained the services of Willdan Financial Services as special tax
consultant(the “Special Tax Consultant”), Stradling Yocca Carlson & Rauth as bond counsel,and Best Best &
Krieger LLP as legalcounsel to provide assistance during the proceedings.
All expenses incurred by the City in undertaking the proceedings to consider the formation of the Bayfront
Districtwill be reimbursed from future Bayfront District special tax revenues. All ongoing expenses related
to the administration of the Bayfront District(including levying and collecting the special taxes and
administering bonds of the Bayfront District) are to be funded from the special taxes of the Bayfront District.
The ultimate security for any future bonds issued by the Bayfront Districtare the properties located within
the Bayfront Districtthat are subject to the levy of special taxes by the Bayfront District, not the City’s General
Fund or its ability to tax property within its jurisdiction outside of the Bayfront District. The Bayfront District
will be formed in conformance with CVMC Chapter 3.61 (Bayfront Project Special Tax Financing District
Procedural Ordinance).
District Boundaries
Staff has reviewed the boundary map of the Bayfront Districtprepared by the Special Tax Consultant and has
found it acceptable and ready for approval by City Council. A reduced copy of the map is presented in
Attachment 1.
The proposed boundaries of the Bayfront District include approximately 270 acres of taxable property. The
Port District owns approximately212acres (79%) of taxable property, the City owns approximately 6acres
(2%) of taxable property, theSan Diego Metropolitan Transit System (MTS) owns approximately 4acres
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(1.5%)of taxable property, and the remaining approximately 48acres (17.5%) of taxable property are
privately owned.
Eligible Improvements
Pursuant to the A&R Financing Agreementand CVMC Chapter 3.61, the Bayfront Districtwill be authorized
to finance transportation and pedestrian facilities, public parks, storm drain facilities, sewer facilities, and
other public and private improvements. Attachment 2 liststhe types of improvementsto be financed by the
Bayfront District. A final list and cost estimate of the improvements eligiblefor Bayfront District financing
will be brought to Council in conjunction with afuture Acquisition/Financing Agreement.
Eligible Services
In addition to authorizing the financing of certain public and private improvements, the Bayfront Districtwill
authorize the financing of certain public services within the CVBMP. Attachment 3 shows a preliminary list
of services, including, but not limited to, operations and maintenance of roadways (including sidewalks,
parkways, and medians), parks, and storm drain facilities. Tonight, Council will only be approving the types
of services to be financed by the Bayfront District. A final list of the services eligible for District financing
will be brought back to Council in conjunction with the Resolution of Formation.
Proposed Special Taxes
Tonight, Council will consider a Rate and Method of Apportionment (RMA) for the Bayfront District
(Attachment 4) that establishes the procedures for levying the special taxes within the Bayfront District.
Property located in the Bayfront Districtwould be subject to the levy of a special tax equivalent to 5% of
occupancy-based room rate revenues generated from visitor serving accommodations located on such
property that are subject to the City’s TOT. Property located in the Bayfront District anticipated to be subject
to the special tax include hotels and campsites, as well as private residences operating as hotels (i.e.
properties offered to the public for short-term rental purposes through Airbnb, Vrbo, etc.). For those
properties which do not offer visitor serving accommodations subject to the City’s TOT, the Bayfront District
would have no effect(i.e., private residences not offered to the public for short-term rental purposes,
undeveloped land, other commercial uses, or non-operating hotels or campsites).
Collection of Taxes
The proposed special tax would be initially self-assessed and remitted to the City in the same time and
manner as the City’s TOT (monthly remittance per Chula Vista Municipal Code). However,shoulda property
fail to self-assess and remit the Bayfront Districtspecial tax to the City for such owner’s property, the
Bayfront Districtwould have the ability to place such special tax on the ad valorem property tax bill of such
owner’s (or leaseholder’s) property. In this circumstance, the City’s Finance Director would determine the
amount of the special tax due, including penalties thereon.
Value-to-Lien Ratio Policy
The Goals and Policies requires a minimum 4:1 value-to-lien ratio as a precondition to the issuance of bonds
of a CFD. A ratio of less than 4:1 but equal to or greater than 3:1 may be approved, in the sole discretion of
Council, when it is determined thata ratio of less than 4:1 is financially prudent under the circumstances of
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a particular CFD. A final appraisal and lien-to-value ratio analysis will be available for Council consideration
prior to the sale of bonds for the Bayfront District. The first bond sale is projected to occur in calendar year
2020. If the final analysis shows parcels that fail to meet the 4:1 or 3:1 ratio, one or more of the following
actions would be required:
The principal amount of the bonds to be issued for the Bayfront Districtwill be reduced to comply
with the Goals and
Policies; or
Sufficient information must be provided to Council to substantiate the prudence of a lesser value-to-
lien ratio.
Resolutions
There are three resolutions on today’s agenda that, if adopted, will accomplish the following:
The RESOLUTION ADOPTING THE BOUNDARY MAP is the formal action adopting the map and setting forth
the boundaries of the proposed the Bayfront District.
The RESOLUTION OF INTENTION is the resolution declaring the intention of the City Council to establish the
Bayfront District, authorizing the levy of special taxes, and setting the time and place for the public hearing
on the formation of the Bayfront District for October 15, 2019.
The RESOLUTION DECLARING NECESSITY TO INCUR BONDED INDEBTEDNESS is the resolutionof the City
Council declaringthat the public convenience and necessity requires that a bonded indebtedness of the
Bayfront Districtbe incurred to finance certain public facilities proposed by the Bayfront Districtand setting
the time and place for a public hearing to be held concurrently with the formation public hearing on the
necessity for the Bayfront District to incur an indebtedness for October 15, 2019. The proposed maximum
indebtedness is $125,000,000. The actual amount of the bond sale(s) will depend upon a number of factors,
including interest rates on the bonds.
Future Actions
Adoption of tonight’s resolutions will set public hearings to be held concurrently on (a) the establishment of
the Bayfront Districtand the authorization to levy the special tax therein and (b) the necessity for and
authorization of the Bayfront Districtto incur a bonded indebtedness, to be held contemporaneously, for
October15, 2019. There will be an election following the public hearings for the landowners to vote on the
authorization to levy special taxes, the authorization to incur a bonded indebtedness of the Bayfront District
and to establish an appropriations limit. Once the votes are cast, Council will be requested to certify the
results of the election.
Pursuant to CVMC Chapter 3.61,the qualified electors will be landowners, i.e., the owners of land within the
Bayfront Districtwith each such owner receiving one (1) vote for each acre or a portion of an acre located
within the boundaries of the Bayfront District. The Bayfront Districtwill be authorized to levy such special
taxes and incur such bonded indebtedness if 2/3rdsof the votes actually cast in the election approve the
authorization to levy such special tax and the authorization for the Bayfront Districtto incur a bonded
indebtedness secured by such special taxes. The San Diego County Registrar of Voters has certified that there
are no voters registered to vote within the proposed boundaries of the Bayfront District(see Attachment 5).
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Additional future actions include approval of an Acquisition/Financing Agreement with RIDA Chula Vista
LLC to establish the terms and conditions pursuant to which the Bayfront Districtwill finance the acquisition
of public improvements required by the A&R Finance Agreement and the DDAto be constructed by RIDA
Chula VistaLLC, the levy of special taxes, and actions associated withthe issuance of bonds.
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the City Council members and has found no property holdings
within1,000 feet of the boundaries of the property which is the subject of this action. Consequently,this
item does not present a disqualifying real property-related financing conflict of interest under California
Code of Regulations Title 2, section 18702.2(a)(7) or (8), for purposes of the Political Reform Act (Cal. Gov’t
Code §87100, et seq.).
Staff is not independently aware, and has not been informed by any City Council member, of any other fact
that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
All expenses incurred by the City in undertaking the proceedings to consider the formation of the Bayfront
and subsequently authorizing, issuing, and selling bonds of the Bayfront District to finance the
District
acquisition and construction of eligible public facilities will be reimbursed from future Bayfront District bond
proceeds or special tax revenues, resulting in no net impact to the General Fund or the Development Services
Fund.
ONGOING FISCAL IMPACT
Thecost to administer the Bayfront District, if established, and the issuance of bonds by the Bayfront District
shallbe paid from the proceeds of special taxes to be levied within the Bayfront District or the proceeds of
bonds issued by the Bayfront District. There is, therefore, no ongoing fiscal impact to the City’s General Fund
or Development Services Fund as a result of this action.
ATTACHMENTS
1.Boundary Map
Authorized Improvements
2.
3.Authorized Services
4.Rate and Method of Apportionment
5.Certification of Registered Voters
Staff Contact: Tiffany Allen, Development Services Department
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COMMUNITY FACILITIES DISTRICT BOUNDARIES
COMMUNITY FACILITIES DISTRICT BOUNDARY
PARCELS SOUTH selectionCOMMUNITY FACILTIES DISTRICT BOUNDARY
COMMUNITY FACILITIES DISTRICT BOUNDARIES
COMMUNITY FACILITIES DISTRICT BOUNDARIES
ATTACHMENT 2
DESCRIPTION OF THE AUTHORIZED IMPROVEMENTS
1.Convention Center Facility (as defined in Chula Vista Municipal Code Chapter 3.61);
2.Street improvements, including grading, paving, curbs, gutters, sidewalks, street
signalization, signage, street lights, furnishings, and parkway and median landscaping
related thereto;
3.Gateway signage;
4.Pedestrian and bicycle paths;
5.Storm drains and other water quality devices to ensure regional permit compliance;
6.Public utilities (including but not limited to water, reclaimed water, sewer, electric, gas, and
telephone);
7.Public parks, open space and recreation facilities;
8.Fire protection and emergency response facilities;
9.Parking improvements;
10.Museums and cultural facilities;
11.Ecological and sustainability educational improvements;
12.Energy efficiency, water conservation, and renewable energy improvements;
13.Land, rights-of-way and easements necessary for any facilities to be financed by the District;
and
14.Equipment, apparatus, facilities or fixtures with an expected useful life of 5 years or longer
necessary for any of the foregoing or necessary to provide any of the services described in
Attachment 3.
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ATTACHMENT 2
ATTACHMENT 3
DESCRIPTION OF THE AUTHORIZED SERVICES
Authorized Services shall include the operation, maintenance, servicing, and replacement of the
authorized Improvements (see Attachment 2). Examples include, but are not limited to:
1.Landscaping, including, but not limited to trees, shrubs, grass, other ornamental
vegetation located in or on slopes, parkways and medians;
2.Facilities that are directly related to storm water conveyance, including, but not limited to
pipes and drainage inlets, detention basins, linear bioretention, and parks;
3.Walls and fencing;
4.Parks, including landscaping, facilities, walls, fencing, lighting, and trails;
5.Streetscape improvements, including lighting, furnishings and appurtenances;
6.Parking improvements;
7.Transportation services;
8.Promotion of public events and tourism;
9.Security, sanitation, graffiti removal, street and sidewalk cleaning, and other municipal
services supplemental to those normally provided by the City;
10.Museums and cultural facilities;
11.Ecological and sustainability educational improvements; and
12.Repair and replacement of the authorized Improvements.
For purposes of this description of the Services to be funded by the levy of Special Taxes within the
District, “maintenance” includes, but is not limited to, the furnishing of services and materials for
the ordinary and usual maintenance, operation, management and servicing of any of the authorized
Improvements, including:
1.Repair, removal, or replacement of the authorized Improvements;
2.Providing for the life, growth, health, and beauty of habitat, including the cultivation,
irrigation, trimming, spraying, fertilizing, or treating for disease or injury;
3.The removal of trimmings, rubbish, debris, silt, and other solid waste;
4.The cleaning, sandblasting, and painting of walls and other facilities to remove or cover
graffiti;
5.The elimination, control, and removal of rodents and vermin;
6.The operation and management of open space and natural habitat, including biological
monitoring and evaluation of collected data;
7.The conduct of biological activities necessary to sustain the species being protected;
8.The operation and maintenance of pedestrian bridges and community gardens within or
appurtenant to such open space or habitat area(s); and
9.The maintenance and cleaning of drainage and other storm water control facilities
required to provide storm water quality control.
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ATTACHMENT 2
“Service” or “servicing” means the furnishing of:
10.Electric current or energy, gas, or other illuminating agent for any public lighting facilities
or for the lighting or other operation of any other Improvements; and
11.Water for the irrigation of any landscaping or the operation or maintenance of any other
Improvements.
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ATTACHMENT 3
DESCRIPTION OF THE AUTHORIZED SERVICES
Authorized Services shall include the operation, maintenance, servicing, and replacement of the
authorized Improvements (see Attachment 2), together with the following additional Services:
1.Landscaping, including, but not limited to trees, shrubs, grass, other ornamental
vegetation located in or on slopes, parkways and medians;
2.Facilities that are directly related to storm water conveyance, including, but not limited to
pipes and drainage inlets, detention basins, linear bioretention, and parks;
3.Walls and fencing;
4.Parks, including landscaping, facilities, walls, fencing, lighting, and trails;
5.Streetscape improvements, including lighting, furnishings and appurtenances;
6.Parking improvements;
7.Transportation services;
8.Promotion of public events and tourism;
9.Security, sanitation, graffiti removal, street and sidewalk cleaning, and other municipal
services supplemental to those normally provided by the Cityor other service provider;
and
10.Repair of the authorized Improvements.
For purposes of this description of the Services to be funded by the levy of Special Taxes within the
District, “maintenance” includes, but is not limited to, the furnishing of services and materials for
the ordinary and usual maintenance, operation, management and servicing of any of the authorized
Improvements, including:
1.Repair, removal, or replacement of the authorized Improvements;
2.Providing for the life, growth, health, and beauty of habitat, including the cultivation,
irrigation, trimming, spraying, fertilizing, or treating for disease or injury;
3.The removal of trimmings, rubbish, debris, silt, and other solid waste;
4.The cleaning, sandblasting, and painting of walls and other facilities to remove or cover
graffiti;
5.The elimination, control, and removal of rodents and vermin;
6.The operation and management of open space and natural habitat, including biological
monitoring and evaluation of collected data;
7.The conduct of biological activities necessary to sustain the species being protected;
8.The operation and maintenance of pedestrian bridges and community gardens within or
appurtenant to such open space or habitat area(s); and
9.The maintenance and cleaning of drainage and other storm water control facilities
required to provide storm water quality control.
“Service” or “servicing” means the furnishing of:
10.Electric current or energy, gas, or other illuminating agent for any public lighting facilities
or for the lighting or other operation of any other Improvements; and
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ATTACHMENT 3
11.Water for the irrigation of any landscaping or the operation or maintenance of any other
Improvements.
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ATTACHMENT 4
RATEAND METHODOF
APPORTIONMENTOF SPECIAL TAX
BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT
The Special Tax authorized by the Bayfront Project Special Tax Financing District (the “District”) shall be
levied on all Taxable Property and collected withinthe Districtas provided herein commencing in Fiscal
Year 2020-2021, in an amount determined by the City Council of the City of Chula Vista, acting as the
legislative body of the District,through the application of therate and method of apportionment of the
Special Tax set forthbelow. All of the real property within the District, 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:
“Act”means the Mello-Roos Community Facilities Act of 1982, being Chapter 2.5, Part 1, Division 2
of Title 5 of the Government Code of the State ofCalifornia.
“Assessor’sParcel” means a lot or parcel designated on an Assessor’sParcel Map with an assigned
Assessor’sParcel number within the boundaries of the District.
“Assessor’sParcel Map”means an official map of the Assessor of the County designating parcels
by Assessor’sParcel number.
“Bond Documents”means any indenture of trust, bond indenture, fiscal agent agreement, trust
agreement,resolution or other instrument setting forth the terms of any Bonds, as modified,
amended and/or supplemented from time to time, andany instrument replacing or supplementing
the same.
“Bonds”means any binding obligation to repay a sum of money, including obligations in the form
ofbonds, notes, certificates of participation, long-term leases, loans from government agencies, or
loans from banks, other financial institutions, private businesses, or individuals, or long-term
contracts, or any refunding thereof, to which the Special Tax has been pledged.
“Boundary Map” means the “Map of Proposed Boundaries of the Bayfront Project Special Tax
Financing District, City of Chula Vista, County of San Diego, State of California,” filed _____, 2019in
Book ______ of Maps of Assessments and Community Facilities Districts in the office of the County
Recorder.
“Calendar Year”means the period commencing January 1 of any year and ending the following
December 31.
“Campsite”shall have the meaning given such term in Chapter3.61.
“Campsite Property” means an Assessor’s Parcel of Taxable Property which consists of any
Campsiteor Campsites.
“Chapter3.61”means Chapter 3.61 of the Chula Vista Municipal Code.
“City”means the City of Chula Vista.
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Bayfront Project Special Tax Financing DistrictPage 1
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ATTACHMENT 4
“City Council” means the City Council of the City, acting as the legislative body of the District, or its
designee.
“City Manager”means the City Manager of the City.
“County”means the County of San Diego.
“Director of Finance”means the Director of Finance of the City.
“District”means the Bayfront Project Special Tax Financing District established by the City pursuant
to Chapter 3.61.
“Exempt Property”means all Assessor’sParcels within the Districtwhich are exempt from the
Special Tax pursuant to law or Section Fherein.
“Fiscal Year” means the period commencing on July 1 of any year and ending the following June 30.
“Hotel”shall have the meaning given such term in Chapter 3.61.
“Hotel Property”means an Assessor’s Parcel of Taxable Property which consists of any Hotelor
Hotels.
“Landowner”shall have the meaning given such term in Chapter3.61.
“Maximum Annual Special Tax Rate”shall, for any Fiscal Year, not exceed five percent (5%) of all
Rentcharged during such Fiscal Year for the privilege of Occupancy by Transients of the
Campsite(s) or Hotel(s), as applicable, located on each Assessor’s Parcel of Campsite Property or
Hotel Property.
“Occupancy”shall have the meaning given such term in Chapter 3.61.
“Operator”shall have the meaning given such term in Chapter 3.61.
“Port District”means the San Diego Unified Port District.
“Public Property”means any property within the boundaries of the Districtthat is owned or held in
trustby or irrevocably dedicated to the City, the federal government, the State of California, the
County, the Port District, or any other public agency.
“Rent”shall have the meaning given such term in Chapter 3.61.
“Resolution of Formation” means the resolution adopted by the City Council pursuant to Chapter
3.61establishing the District.
“Special Tax”means the special tax authorized by the Districtto be levied by the City Council
pursuant to Chapter 3.61.
“Taxable Property”means all Assessor’sParcels that are not exempt from the Special Tax pursuant
to law orthisRateand Methodof Apportionment of Special Tax.
“Transient”shall have the meaning given such term in Chapter 3.61.
B. CLASSIFICATIONOF ASSESSOR’S PARCELS
Each Fiscal Year, beginning with Fiscal Year 2020-2021, each Assessor’s Parcel shall be classified as
Taxable Property or Exempt Property. In addition, each Assessor’s Parcel of Taxable Property shall be
further classified as Campsite Property or Hotel Property. Commencing with Fiscal Year 2020-2021, all
Campsite Property and Hotel Property shall be subject to the levy of the Special Tax pursuant to Section
C below.
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ATTACHMENT 4
C. SPECIAL TAX
For each Fiscal Year commencing Fiscal Year 2020-2021, the City Council shall, by resolution adopted on
or before May 31st preceding such Fiscal Year, levy the Special Tax oneach Assessor’s Parcel classified
as Campsite Property or Hotel Property at a rate not to exceed the Maximum Annual Special Tax Rate.
For each succeeding Fiscal Year, the Special Tax shall be levied at the same rate as the rate levied in the
preceding Fiscal Year unless the City Council shall, by resolution adopted by May 31st of the preceding
Fiscal Year, levy the Special Tax at a different rate than the rate levied in the preceding Fiscal Year not to
exceed the Maximum Annual Special Tax Rate.
The Special Tax associated with Rent that is charged for Occupancy by Transients shall be considered
levied at the same time the Transientceases such Occupancy.
D.MANNER OF COLLECTION
The Special Tax shall be due and remitted pursuant to the provisions of Section 3.61.120 of Chapter
3.61.
E. PREPAYMENT OF THE SPECIAL TAXES
The Special Tax may not be prepaid.
F. EXEMPTIONS
Assessor’s Parcelsnot classified as Campsite Property or Hotel Propertyshall be exempt from the levy of
the Special Tax.
G. FAILURE TO SUBMITSPECIAL TAX
If theOperator of any Campsiteor Hotellocated on an Assessor’s Parcel of Campsite Property or Hotel
Property,or the Landowner of an Assessor’s Parcel of Campsite Property or Hotel Property that is not
Public Property,fails or refuses to pay the Special Tax leviedon such Assessor’s Parcel when due, the
Director of Finance shall proceed in such manner as deemed bestto obtain facts and information on
which to base his/her estimate of suchSpecial Tax. As soon as the Director of Financehasacquiredsuch
facts and information upon which to base such Special Tax for such Campsite Property or Hotel
Property, the Director of Finance shall proceed to determine the amount of such Special Tax due plus
any penaltiesthereon, as described below ("Determination of Special Tax Due"). In the case that such
determination is made, the Director of Finance shall give a Determination of Special Tax Due by serving
it personally or by depositing it in the United States mail, postage prepaid, addressed to suchOperator
or such Landowner,as applicable, at its last known address. Such Operator or suchLandowner, as
applicable,may file an appeal as provided in Section Jherein.
The Special Tax on any Campsite Property or Hotel Property which is not paid within the time required
shall be subject to the same penalties applicable to the transient occupancy tax in subsections A and B
of Section 3.40.080 of the Chula Vista Municipal Code. For any Special Taxesandpenaltiesthat remain
outstanding as of July 1of each Fiscal Year, the City Council may direct the Director of Finance to cause
the submission ofany of the delinquent Special Taxesandpenalties to the County for inclusion on the
property tax bill for such Assessor's Parcel(s) in accordance with Section 3.61.130 of Chapter 3.61;
provided, however, that any delinquent Special Taxes and penalties with respect to any Assessor’s
Parcel of Public Property that is classified as Campsite Property or Hotel Property due to the grant of a
lease or other possessory interest in such Assessor’s Parcel of Public Property to the Operator of a
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Campsiteor Hotelthereon shall only be levied on and constitute a lien against the Operator’s leasehold
or possessory interest in such Assessor’s Parcel of Public Property, all as contemplated by Section
53340.1 of the Act, as modified by Chapter 3.61, and shall not be an obligation for which the Landowner
of such Assessor’s Parcel of Public Property is billed or responsible.
H. MAINTENANCE OF RECORDS; SPECIAL TAX AUDIT
It shall be the duty of the Operator of any Campsiteor Hotellocated on any Assessor's Parcel classified
as Campsite Property or Hotel Property that is subject to the Special Tax to keep and preserve, for a
period of three years, all records as may be deemed necessary by the Director of Finance (and that will,
at a minimum, include a record of all Rents collected) to determine the Special Taxes levied upon such
Campsite Property or Hotel Property by the City Council. The Director of Finance shall have the right to
inspect such records at all reasonable times.
I. APPEAL
Any Operator of a Campsite or Hotel located on any Campsite Property or Hotel Property or any
Landowner of any Campsite Property or Hotel Property claiming that the amount or application of the
Special Tax reflected in any Determination of Special Tax Due on such Campsite Property or Hotel
Property is not correct, may appeal suchDetermination of Special Tax Due by filing a notice of appeal
withthe City Clerk within fifteen (15) calendar days of the serving or mailing of such Determination of
Special Tax Due. If such appeal is made by an Operator that is not also the Landownerof such property,
then the Operator shall also provide a copy of such notice of appeal to the Landowner at the same time
the Operator files the notice of appeal with the City Clerk. Upon 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 Districta special three-member Appeal Committee. The Appeal Committee
may establish such procedures as it deems necessary to undertake the review of any such appeal. The
Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations
relative to the annual administration of the Special Tax and any appeals by Landowners, or Operators, as
herein specified. The decision of the Appeal Committee shall be final, conclusive, binding as to all
persons and shall be served upon the Operator or Landowner in writing at the last known address of
such Operatoror Landowner. Any amount found due shall be immediately due and payable upon service
of the Appeal Committee findings. If the Appeal Committee decision requires that the Special Tax for an
Assessor’s Parcel be modified or changed in favor of the Operator or Landowner, a cash refund shall not
be made, but a credit shall be given against the future Special Taxes on that Assessor’s Parcel.
J. TERMOF THE SPECIAL TAXES
The Special Tax shall be leviedin perpetuityas long as necessary to pay for authorized expenditures as
specified in Section 3.61.080 of Chapter 3.61.
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ADOPTING A MAP SHOWING THE
BOUNDARIES OF THE TERRITORY PROPOSED TO BE
INCLUDED THE BAYFRONT PROJECT SPECIAL TAX
FINANCING DISTRICT
WHEREAS, the City of Chula Vista, California (the “City”)is a municipal corporation
and charter city duly organized and existing under a charter pursuant to which the City has the
right and power to make a enforce all laws and regulations with respect to municipal affairs and
certain other matters in accordance with and as more particularly provided in Sections 3, 5, and 7
of Article XI of the Constitution of the State of California and the Charter of the City; and
WHEREAS, Chapter 3.61, Bayfront Project Special Tax Financing District Procedural
Ordinanceof the Chula Vista Municipal Code ( “Chapter 3.61”) was enacted for the purpose of
establishing a procedure for financing certain public and private improvements and maintenance
and services to serve the Chula Vista Bayfront Project through the establishment ofthe Bayfront
Project Special Tax Financing District(the “District”), the levy and collection of special taxes
within the District and the issuance of bonds of the District secured by such special taxes for the
purpose of financing aConvention Center Facility (as defined in Chapter 3.61)and certain other
public and/or private improvements; and
WHEREAS, there has been submitted a map showing the boundaries of the territory
proposed for inclusion in the District including properties and parcels of land proposed to be
subject to the levy of a special tax by the District.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista
that:
SECTION 1.The above recitals are all true and correct.
SECTION 2.The map designated as “Map of Proposed Boundaries of the Bayfront
Project Special Tax Financing District, City of Chula Vista, County of San Diego, State of
California” showing the boundaries of the territory proposed for inclusion in the District
including the parcels of land proposed to be subject to the levy of a special tax by the District is
hereby approved and adopted.
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 ofthis Resolution, and within fifteen
(15) days after the adoption of the Resolution fixing the time and place of the hearing on the
formation or extent of such District, a copy of such map shall be filed with the correct and proper
endorsements thereon with the County Recorder of the County of San Diego, all in the manner
and form provided for in Sections 3110 and 3111 of the Streets and Highways Code of the State
of California.
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Presented byApproved as to form by
Kelly G. Broughton, FASLAGlen R. Googins
Director of Developmental ServicesCity Attorney
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
DECLARING ITS INTENTION TO ESTABLISH THE BAYFRONT PROJECT
SPECIAL TAX FINANCING DISTRICT AND TO AUTHORIZE THE LEVY
OF A SPECIAL TAX THEREIN TO FINANCE PUBLIC AND PRIVATE
IMPROVEMENTS,AND MAINTENANCE AND SERVICES
WHEREAS, the City of Chula Vista, California (the “City”) is a municipal corporation
and charter city duly organized and existing under a charter pursuant to which the City has the
right and power to make a enforce all laws and regulations with respect to municipal affairs and
certain other matters in accordance with and as more particularly provided in Sections 3, 5, and 7
of Article XI of the Constitution of the State of California and the Charter of the City; and
WHEREAS, Chapter 3.61, Bayfront Project Special Tax Financing District Procedural
Ordinance of the Chula Vista Municipal Code ( “Chapter 3.61”) was enacted for the purpose of
establishing a procedure for financing certain public and private improvements and maintenance
and services to serve the Chula Vista Bayfront Project through the establishment of the Bayfront
Project Special Tax Financing District (the “District”), the levy and collection of special taxes
within the District and the issuance of bonds of the District secured by such special taxes for the
purpose of financing a Convention Center Facility (as defined in Chapter 3.61) and certain other
public and/or private improvements; and
WHEREAS, this City Council desires to proceed to adopt its resolution of intention to
initiate the proceedings to consider the establishment of the District, to set forth the proposed
boundaries for the District, to indicate the public and private improvementsand maintenance and
services proposed to be financed by the District, to indicate the proposed rate and apportionment
of a special tax sufficient to finance the acquisition or construction of such facilities, the
provision of public services,and the administration of the Districtand any indebtedness incurred
by the District, and to set a time and place for a public hearing relating to the establishment of
the District; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista:
SECTION 1.Recitals. The above recitals are all true and correct.
SECTION 2.Findings and Declaration. The City Council hereby specifically finds and
declares that the actions authorized hereby constitute and are with respect to the municipal affairs
of the City and that the consideration of the formation of the District willprovide significant
economic benefits to the City and to the residents of the City, and willresult in significant public
benefits.
SECTION 3.Initiation of Proceedings. The proceedings are initiated by this City
Council pursuant to the provisions of Chapter 3.61.
SECTION 4.Boundaries of the District. It is the intention of the City Council to
establish boundaries of the proposed District. A description of the proposed boundaries of the
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territory to be included in the District including the properties and parcels of land proposed to be
subject to the levy of a special tax by the District are as follows:
All that property as shown on a map as previously approved by this City Council,
such map entitled“Map of Proposed Boundaries of the Bayfront Project Special
Tax Financing District, City of Chula Vista, County of San Diego, State of
California,” a copy of which is on file in the Office of the City Clerk and shall
remain open for public inspection.
SECTION 5.Name of District. The intention of the City Council is and the City
Council hereby proposes, to establish a special tax financing district under and pursuant to
Chapter 3.61, to be known as the “Bayfront Project Special Tax Financing District.”
SECTION 6.Description of the Improvements. It is the intention of this City Council to
authorize the District to finance the purchase, construction, expansion, improvement,
rehabilitation, replacement and upgrade, including ongoing capital repairs,of certain public and
private improvements pursuant to the provisions of Chapter 3.61and any other method permitted
by law. A general description of such improvements is set forth in Exhibit “A,” attached hereto
and incorporated herein by this reference (the “Improvements”).
All of the Improvementshave an estimated useful life of five years or longer. The
Improvementsare facilities that the City and/or the San Diego Unified Port District are
authorized by law to construct, own, or operate, or to which they may contribute revenue.
The cost of the Improvementsincludes Incidental Expenses (as such term is defined in
Government Code Section 53317(e)) and may include, but not be limited to, the cost of planning,
designand engineeringthe facilities; all costs associated with the establishment of the District,
the issuance and administration of bonds to be issued bythe District, including the payment of
any rebate obligation due and owing to the federal government, the determination of the amount
of any special taxes to be levied; the cost of collecting any special taxes; and costs otherwise
incurred in order to carry out the authorizedpurposes of the District, together with any other
expenses incidental to the purchase, construction, expansion, improvement, rehabilitation,
replacement and upgrade, including ongoing capital repairsof the Improvements, as set forth in
Section 3.61.080 of Chapter 3.61.
SECTION 7.Description of Services. It is the intention of this City Council to finance
maintenance and services authorized to be financed pursuant to the provisions of Chapter 3.61.
A general description of the maintenance and services proposed to be authorized to be financed
is set forth in Exhibit “B,” attached hereto and incorporated herein by this reference (the
“Services”). The Services shall include, but not be limited to, the provision of all labor, material,
administration, personnel, equipment and utilities necessary to maintain such improvements.
The City Council finds that the Services are necessary to meet increased demands placed
upon the City as a result of development occurring within the boundaries of the Districtand the
Services will not supplant services already available within the boundaries of the District.
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SECTION 8.Special Tax. It is hereby further proposed that, except where funds are
otherwise available, a special tax sufficient to pay for the Improvements, related Incidental
Expenses, and the Services (the “Special Tax” or “Special Taxes”),will be levied pursuant to the
provisions of Chapter 3.61. For further particulars as to the rate and method of apportionment of
the proposed Special Taxesfor the District (the “Rate and Method of Apportionment”) reference
is made to the attached and incorporated Exhibit “C,” which setsforth in sufficient detail the rate
and method of apportionment to allow each Landowner orOperator (as such terms are defined in
Chapter 3.61) within the District to clearly estimate the maximum amount that such Landowner
or Operator will have to pay.
Itis the intention of the City Council that the proposed Special Taxes will be due and
remitted with the Operator’s payment of transient occupancy taxes as set forth in Chapter 3.40 of
the Chula Vista Municipal Code (“Chapter 3.40”). If a Landowner is not an Operator, the
Landowner shall cause the Operator to remit the Special Taxes imposed with the Operator’s
payment of transient occupancy tax. Unlike Chapter 3.40, however, the Special Tax is not
imposed on the Transient (as defined in Chapter 3.40), but on the parcel or possessory interest in
a parcel containing aHotel or Campsite (as such terms are defined in Chapter 3.61). The
Operator may, but is not required to, pass the Special Tax through to the Transients and collect it
with Rent (as defined in Chapter 3.40). Despite the method of collection and administration, the
Special Tax is distinct from the City’s transient occupancy taxand may be enforced, in the event
of nonpayment, as provided in the Mello-Roos Community Facilities Act of 1982, including
through a judicial foreclosure; however, the City Council reserves the right to utilize any other
lawful means of billing, collecting, and enforcing the Special Taxes, including billing on the
secured property tax roll, direct and supplemental billing, any other legal authority to collect
delinquent Special Taxes, penalties and interest and when lawfully available, judicial foreclosure
of the lien of the Special Taxes.
Any Special Taxes delinquent as of July 1of any fiscal year, together with any penalties
and interest accrued as of that date, may, at the option of the City Council, acting as the
legislative body of the District, be placed on the secured property tax roll in that fiscal year and
be levied on the parcel for which such Special Taxes are delinquent, where it shall be collected in
the same manner as ordinary ad valorem property taxes are collected and shall be subject to the
same penalties and the same procedure, sale and lien priority in case of delinquency as is
provided for ad valorem taxes.
The Special Taxes are imposed by the District and not the City. The Special Tax shall be
levied by the District, in any year, only on a parcel or a possessory interest in a parcel within the
District for the use of such property during such year as a Hotel or Campsite.
SECTION 9.Public Hearing. NOTICE IS GIVEN THAT on October 15, 2019, at the
hour of 5:00 o’clock p.m., in the regular meeting place of the City Council being the Council
Chambers, City Hall, located at 276 Fourth Avenue, Chula Vista, California, a public hearing
will be held where this City Council will consider the establishment of the District, the rate and
method of apportionment of the Special Taxes proposed to be levied within the District, and all
other matters as set forth in thisresolution of intention. At the above-mentioned time and place
for public hearing any persons interested, including taxpayers and property owners, may appear
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and be heard. The testimony of all interested persons for or against the establishment of the
District, the extent of the District, the financing of the Improvements, or the financing of the
Services, will be heard and considered. 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. Anywritten protest not personally presented by the author of such protest
at the public hearing shall be filed with the City Clerk of the City (the “City Clerk”) ator 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 as determined pursuant to Chapter 3.61 is filed against the
establishmentof the District, the proceedings shall be abandoned. Notwithstanding the
abandonment of the proceedings, new proceedings to create the District or to authorize the
Special Taxes may be initiated at any time thereafter. If such majority protest is limited to
certain Improvements, certain Services, or portions of the Special Tax, those Improvements,
Services, or that portion of the Special Tax shall be eliminated from the resolution of formation.
Notwithstanding the elimination of such types of Improvementsor Services orsuch specified
Special Taxfrom the resolution of intention, new proceedings to authorize the furnishing of such
types of Improvementsor Services within the District or to authorize the levy of such specified
Special Tax may be initiatedat any time thereafter.
The public hearing may be continued from time to timewithout further notice, but shall
be completed within two yearsof the original hearing date.
SECTION 10.Report. The officers of the City who will be responsible for providingone
or more of the proposed types of the Improvementsand Services to be provided within and
financed by the proposed District, if it is established, shall study the District, and, at or before the
time of the public hearing, file a report with the City Council containing a brief description of the
Improvementsand Services by type which will in their opinion be required to adequately meet
the needs of the District and their estimate of the cost of providing those Improvementsand
Services. For those Improvementsproposed to be acquired upon the completion thereof and
those Incidental Expenses proposed to be paid for, such report shall contain an estimate of the
fair and reasonable cost of such Improvementsand such Incidental Expenses. Such report shall
be made a part of the record of the public hearing to be held pursuant to Section 9 hereof.
SECTION 11.Election. If, following the public hearing described in Section 9, the City
Council determines to establish the District and proposes to levy the Special Taxeswithin the
District, the City Council shall then submit the levy of the Special Taxes to the Landowners (as
such term is defined in Chapter 3.61) as the qualified electors of the Districtpursuant to Chapter
3.61and the applicable provisions of the California Elections Code. Each Landowner,or the
authorized representative thereof, shall haveone (1) vote for each acre or portion of an acre of
land owned within the District.
SECTION 12.Notice.Notice of the time and place of the public hearing shall be given
by the City Clerk by causing the publication of a notice of public hearing 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
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set for the public hearing.
The City Clerk shall also cause notice to be given by first-class mail to each Landowner
of property within the District. Such notice shall be mailed at least 15 days before the public
hearing and shall contain the same information as is required to be contained in the notice
published pursuant to the preceding paragraph.
SECTION 13.Reservation of Rights to Authorize Tender of BondsThe City Council
reserves to itself, in its capacity as the legislative body of the District,if formed, the right and
authority to allow any interested owner of property within the District, subject to the provisions
of Government Code Section 53344.1 and to such conditions as this City Council may impose,
and any applicable prepayment penalties as may be described in the bond indenture or
comparable instrument or document, to tender to the Treasurerof the City, acting for and on
behalf of the District, in full payment or part payment of any installment of the Special Taxes or
the interest or penalties thereon which may be due or delinquent, but for which a bill has been
received, any bond or other obligation secured thereby, the bond or other obligation to be taken
at par and credit to be given for the accrued interest shown thereby computed to the date of
tender.
SECTION 14.Advances Of Funds Or Work-In-Kind. At any time either before or after
the formation of the District, the City Council may accept advances of funds or work-in-kind
from any source, including, but not limited to, private persons or private entities and may
provide, by resolution, for the use of those funds or that work-in-kind for any authorized
purpose, including, but not limited to, payingany cost incurred by the City in creating the
District. The City may enter into an agreement, by resolution, with the person or entity
advancing the funds or work-in-kind, to repay all or a portion of the funds so advanced, or to
reimburse the person or entity for the value, or cost, whichever is less, of the work-in-kind, as
determined by the City Council. Such advances are subject to reimbursement pursuant to the
terms of such agreement. No such agreement shall constitute a debt or liability of the City.
In addition, it is proposed that the City enter into one or moreagreementspursuant to
which RIDA Chula Vista, LLC, or an affiliate, designee, successor or assigneethereof,shall
construct and install all or a portion of the Improvementsand the District shall repay the funds
expended by RIDA Chula Vista, LLC, or an affiliate, designee, successor or assigneethereof,for
such purpose or value or cost of the work in-kind, whichever is less.
Presented byApproved as to form by
Kelly G. Broughton, FASLAGlen R. Googins
Director of Developmental ServicesCity Attorney
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EXHIBIT A
DESCRIPTION OF THE AUTHORIZED IMPROVEMENTS
1.Convention Center Facility (as defined in Chula Vista Municipal Code Chapter 3.61);
2.Street improvements, including grading, paving, curbs, gutters, sidewalks, street
signalization, signage, street lights, furnishings, and parkway and median landscaping
related thereto;
3.Gateway signage;
4.Pedestrian and bicycle paths;
5.Storm drains and other water quality devices to ensureregional permit compliance;
6.Public utilities (including but not limited to water, reclaimed water, sewer, electric, gas,
and telephone);
7.Public parks, open space and recreation facilities;
8.Fire protection and emergency response facilities;
9.Parking improvements;
10.Museums and cultural facilities;
11.Ecological and sustainability educational improvements;
12.Energy efficiency,water conservation,and renewable energy improvements;
13.Land, rights-of-way and easements necessary for any facilitiesto be financed by the
District; and
14.Equipment, apparatus, facilities or fixtures with an expected useful life of 5 years or
longer necessary for any of the foregoing or necessary to provide any of the services
described in Exhibit B.
A-1
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EXHIBIT B
DESCRIPTION OF THE AUTHORIZED SERVICES
Authorized Services shall include the operation, maintenance, servicing, and replacement of the
authorized Improvements(see Exhibit A), together with the following additional Services:
1.Landscaping, including, but not limited to trees, shrubs, grass, otherornamental
vegetation located in or on slopes, parkways and medians;
2.Facilities that are directly related to storm water conveyance, including, but not limited
to pipes and drainage inlets, detention basins, linear bioretention, and parks;
3.Walls and fencing;
4.Parks, including landscaping, facilities, walls, fencing, lighting, and trails;
5.Streetscape improvements, including lighting, furnishings and appurtenances;
6.Parking improvements;
7.Transportation services;
8.Promotion of public events and tourism;
9.Security, sanitation, graffiti removal, street and sidewalk cleaning, and other municipal
services supplemental to those normally provided by the Cityor other service provider;
and
10.Repair of theauthorized Improvements.
For purposes of this description ofthe Services to be funded by the levy of Special Taxes within
the District, “maintenance” includes, but is not limited to, the furnishing of services and
materials for the ordinary and usual maintenance, operation, management and servicing of any of
the authorized Improvements, including:
1.Repair, removal, or replacement of the authorized Improvements;
2.Providing for the life, growth, health, and beauty of habitat, including the cultivation,
irrigation, trimming, spraying, fertilizing, or treating for disease or injury;
3.The removal of trimmings, rubbish, debris, silt, and other solid waste;
4.The cleaning, sandblasting, and painting of walls and other facilities to remove or cover
graffiti;
5.The elimination, control, and removal of rodents and vermin;
6.The operation and management of open space and natural habitat, including biological
monitoring and evaluation of collected data;
7.The conduct of biological activities necessary to sustain the species being protected;
8.The operation and maintenance of pedestrian bridges and community gardens within or
appurtenant to such open space or habitat area(s); and
9.The maintenance and cleaning of drainage and other storm water control facilities
required to provide storm water quality control.
B-1
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“Service” or “servicing” meansthe furnishing of:
10.Electric current or energy, gas, or other illuminating agent for any public lighting
facilities or for the lighting or other operation of any other Improvements; and
11.Water for the irrigation of any landscaping or the operation or maintenance of any other
Improvements.
B-2
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EXHIBIT C
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAXES
C-1
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
DECLARING THE NECESSITY TO INCUR A BONDED INDEBTEDNESS
OF THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT TO
BE SECURED BY SPECIAL TAXES LEVIED WITHIN SUCH DISTRICT TO
FINANCE PUBLIC AND PRIVATE IMPROVEMENTS
WHEREAS, the City Council of the City of Chula Vista, California (the “City Council”),
has adopted its Resolution No. _______ (the “Resolution ofIntention”) this date declaring its
intention to establish a special tax financing district pursuant to the terms and provisions of
Chapter 3.61 of the Chula Vista Municipal Code (“Chapter 3.61”)to finance certain authorized
improvementsdescribed in Exhibit A attached hereto and incorporated herein by this reference
(the “Improvements”). This special tax financing district shall hereinafter be designated and
referred to as the Bayfront Project Special Tax Financing District (the “District”); and
WHEREAS, it is the intention of this legislative body to finance all or a portion of the
Improvementsthrough the issuance of bonds by the District, such bonds to be secured by special
taxes to be levied on taxable property within the District, all as authorized pursuant to Chapter
3.61.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista, that:
SECTION 1.Recitals. The above recitals are all true and correct.
SECTION 2.Findings and Declaration. The City Council hereby specifically finds and
declares that the actions authorized hereby constitute and are with respect to the municipal affairs
of the City and that the consideration of the issuance of bonds authorized by the District will
provide significant economic benefits to the City and to the residents of the City, and willresult
in significant public benefits.
SECTION 3.Declaration of Convenience and Necessity. The City Council declares
that the public convenience and necessity requires that a bonded indebtedness be incurred by the
District to contribute to the financing of the Improvements.
SECTION 4.Purpose for Proposed Indebtedness. The purpose for the proposed debt of
the District is to contribute to the financing of the Improvements.
The cost of financing the Improvementsincludes Incidental Expenses (as such term is
defined in Government Code Section 53317(e)) and may include, but not be limited to, the cost
of planning and designing the Improvements; all costs associated with the establishment of the
District, the issuance and administration of bonds to be issued for the District, including the
payment of any rebate obligation due and owing to the federal government, the determination of
the amount of any special taxes to be levied; the cost of collecting any special taxes; and costs
otherwise incurred in order to carry out the authorized purposes of the District, together with any
other expenses incidental to the purchase, construction, expansion, improvement, rehabilitation,
replacement and upgrade, including ongoing capitalrepairs, and inspection of the Improvements.
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Resolution No.
Page 2
SECTION 5.Bond Authorization. The amount of the bonded indebtedness of the
District may include all costs and estimated costs incidental to, or connected with, the
accomplishment of the purpose for which the indebtedness is proposed to be incurred as
authorized pursuant to Chapter 3.61. The amount of the indebtedness proposed to be authorized
is $125,000,000.
SECTION 6.Notice of Public Hearing. NOTICE IS GIVEN thaton October 15, 2019,
at the hour of 5:00 o’clock p.m. in the regular meeting place of the legislative body, being the
Council Chambers, City Hall, located at 276 Fourth Avenue, Chula Vista, California, a hearing
will be held on the intention of this legislative body to incur a bonded indebtedness of the
District to contribute to the financing of the Improvements, such indebtedness to be secured by
all or a portion of the levy of special taxes within the District. At the time and place fixed for
said public hearing any persons interested, including persons owning property within the District,
may appear and present any matters material to the proposed intention and necessity for
incurring a bonded indebtedness of the District.
SECTION 7.Publication of Notice. Notice of the time and place of the public hearing
shall be given by the City Clerk by publishing a notice of public hearing 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 byApproved as to form by
Kelly G. Broughton, FASLAGlen R. Googins
Director of Developmental ServicesCity Attorney
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EXHIBIT A
DESCRIPTION OF AUTHORIZED IMPROVEMENTS
1.Convention Center Facility(as defined in Chula Vista Municipal Code Chapter 3.61);
2.Street improvements, including grading, paving, curbs, gutters, sidewalks, street
signalization, signage, street lights, furnishings, and parkway and median landscaping
related thereto;
3.Gateway signage;
4.Pedestrian and bicycle paths;
5.Storm drains and other water quality devices to ensure regional permit compliance;
6.Public utilities (including but not limited to water, reclaimed water, sewer, electric, gas,
and telephone);
7.Public parks, open space and recreation facilities;
8.Fire protection and emergency response facilities;
9.Parking improvements;
10.Museums and cultural facilities;
11.Ecological and sustainability educational improvements;
12.Energy efficiency, water conservation, and renewable energy improvements;
13.Land, rights-of-way and easements necessary for any facilitiesto be financed by the
District; and
14.Equipment, apparatus, facilities or fixtures with an expected useful life of 5 years or
longer necessary for any of the foregoing or necessary to provide any of the services
described in the Resolution of Intention.
A-1
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ITEM #4
ATTACHMENTS FOR THIS ITEM WILL BE
UPLOADED WHEN AVAILABLE
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September 10, 2019
ITY COUNCIL
STATEMENT
CITY OF
t CHULA VISTA
File ID: 19-0414
TITLE
A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA (1) APPROVING A
REIMBURSEMENT AGREEMENT BETWEEN THE CITY AND RIDA CHULA VISTA, LLC ("DEVELOPER") T❑
CONSTRUCT SPECIFIED SEWER IMPROVEMENTS; (2) FINDING THE DEVELOPER'S PROPOSED SOLE
SOURCE AWARD TO ITS GENERAL CONTRACTOR TO CONSTRUCT SUCH IMPROVEMENTSTO BE IN THE
BEST INTEREST OF THE PUBLIC, PURSUANT TO CHULA VISTA MUNICIPAL CODE SUBSECTION
2.56.160(1-1], "DEVELOPER -PERFORMED PUBLIC WORKS"; (3) DELEGATING TO THE CITY MANAGER
AUTHORITY TO ASSURE COMPLIANCE WITH APPLICABLE PROCUREMENT REQUIREMENTS FOR
SUBCONTRACTORS; AND (4) APPROPRIATING FUNDS THEREFOR (4/5 VOTE REQUIRED)
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A REIMBURSEMENT
AGREEMENT BETWEEN THE CITY AND RIDA CHULA VISTA, LLC TO DESIGN SPECIFIED BAYFRONT
INFRASTRUCTURE IMPROVEMENTS AND APPROPRIATING FUNDS THEREFOR (4/5 VOTE REQUIRED)
C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA FINDING RIDA CHULA VISTA, LLC'S
PROPOSE❑ SOLE SOURCE AWARD TO ITS GENERAL CONTRACTOR TO CONSTRUCT BAYFRONT
DEVELOPMENT IMPACT FEE TRANSPORTATION FACILITIES TO BE IN THE BEST INTEREST OF THE
PUBLIC, PURSUANT TO CHULA VISTA MUNICIPAL CODE SUBSECTION 2,56.160(H), "DEVELOPER -
PERFORMED PUBLIC WORKS," AND DELEGATING TO THE CITY MANAGER AUTHORITY TO ASSURE
COMPLIANCE WITH APPLICABLE PROCUREMENT REQUIREMENTS FOR SUBCONTRACTORS
RECOMMENDED ACTION
Council adopt the resolutions.
SUMMARY
On April 24, 2018, the City of Chula Vista and the San Diego Unified Port District (the "District") approved a
Disposition and Development Agreement (DDA) with RIDA Chula Vista, LLC ("RIDA") for the development of
a large-scale destination resort and convention center project on parcel H-3 of the Chula Vista Bayfront
Master Plan (also known as the "CVBMP "Chula Vista Bayfront", or "CVB"). The DDA obligates R1DA to
design and construct certain public improvements (the "Developer's Phase 1A Infrastructure
Improvements"), subject t❑ a combination of reimbursements and Bayfront Development Impact Fee
(BFDIF) credits, The proposed reimbursement agreements and resolutions are recommended in order to
implement commitments made in the DDA and to facilitate related procurement and credit award processes.
Page 11
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed activity for compliance with the California
Environmental Quality Act (CEQA) and has determined that the activity was covered in previously adopted
Environmental Impact Report UPD#83356-EIR-65B/SCH#2005081077. The Development Services Director
has also reviewed the proposed activity for additional compliance with CEQA and has determined that there
is no possibility that the activity may have a significant effect on the environment; therefore, pursuant to
Section 15061 (b)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental
review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable.
DISCUSSION
In 2002, the City of Chula Vista and the District began a collaborative planning process to create a master
plan (CVBMP) for the approximately 535 -acre Chula Vista Bayfront area. The master plan was designed to
transform Chula Vista's underutilized industrial Bayfront landscape into a thriving residential and world -
class waterfront resort destination. The CVBMP represents the last significant waterfront development
opportunity in Southern California and is the result of a decade -long joint planning effort by a broad coalition
of stakeholders, the District, the City, and Pacifica Companies.
The CVBMP will create thousands of new jobs, create new public parks, protect natural coastal resources,
provide conference and visitor -serving amenities and build an important asset for the San Diego region, the
South Bay, Chula Vista residents, and coastal visitors. At buildout, more than 40% of the CVBMP project area
will be dedicated to parks, open space, and habitat restoration/preservation. Anticipated economic benefits
include the creation of more than 4,400 permanent jobs, nearly 7,000 temporary construction jobs, and
numerous indirect jobs in the regional economy.
The CVBMP will be implemented jointly by the City and the District in four major phases over a 24 -year
period. Phase one of implementation includes the development of the previously described resort hotel and
convention center project, the creation of public parks and open space, the restoration of habitat areas, a
mixed -use residential development, and ancillary public infrastructure.
CVBMP Financing Agreement
In furtherance of developing the CVBMP, the City and the District entered into a Bayfront Master Plan
Financing Agreement (the "Financing Agreement") on May 8, 2012. The Financing Agreement identified the
rights and obligations of each agency, with respect to the financing, development, and construction of public
improvements, infrastructure, and the planned convention center in the CVBMP. The Financing Agreement
was subsequently amended and restated to recognize additional rights and obligations of the respective
agencies, effective June 20, 2017 (the "Amended and Restated Financing Agreement").
The Financing Agreement established that the City and the District would form a Joint Exercise of Powers
Authority UEPA) to provide for or facilitate the financing of the convention center and other CVBMP public
Page 1 2
improvements. Pursuant to authority granted by Article 1 (coin mencingwith §6500) of Chapter 5 of Division
7 of Title 1 o€ the Government Code of the State of California (the "IPA Act"], the City entered into a JEPA
Agreement with the District, effective May 1, 2014 (the "Original JEPA Agreement"]. The Original JEPA
Agreement established the Chula Vista Bayfront Facilities Financing Authority (the "Authority').
The Authority was formed for the sole purpose of assisting in the financing and refinancing of, and
procurement and contracting for capital improvement projects of the CVBMP, as contemplated by the
Financing Agreement. The anticipated sources of€unds to secure debt issued by the Authority are addressed
in the Amended and Restated Financing Agreement, and include, but are not limited to: RIDA ground lease
payments to the District, lease payments payable from public funds, City sales taxes, City transient occupancy
taxes (TOT), and additional occupancy -based revenues. Pursuant to California law and the JEPA Agreement,
the Authority will be a public entity separate and apart from the City and District, The debts, liabilities, or
obligations of the Authority will not be the debts, liabilities, or obligations of the City, the District, or any
representative of the City or District serving on the Governing Board of the Authority.
An Amended and Restated Joint Exercise of Powers Agreement was drafted to further refine the proposed
jurisdiction, purpose, and structure of the Authority (the "Amended and Restated JEPA Agreement"). The
Council and the District's Board of Port Commissioners (the "District Board") approved the Amended and
Restated JEPA Agreement on June 18.2019, including all necessary appointments to the Governing Board of
the Authority.
The Authority held its first meeting on July 25, 2019. At that meeting, the Authority took the following
actions: adopted Bylaws; elected Mayor Casillas Salas Chair of the Board; elected Port Commissioner Moore
Vice -Chair of the Board; confirmed appointment of the Authority's officers; established 3:00 pm on the last
Wednesday of each month, beginning August 28, 2019, as the regular time for meetings of the Board;
established that. the place for regular meetings of the Board will rotate between the Port and City offices;
adopted Conflict of Interest Codes of the members; and authorized and ratified the taking of other actions.
RIDA Development
On May 6, 2014, the District issued a Request for Qualifications (RFQ) for development of a hotel and
convention center project located on an approximately 36 -acre site (CVBMP parcel H-3), with potential
development opportunities on the adjacent parcel H-23. RIDA Development Corporation's highly -qualified
response was selected by the District Board in October of 2014 and initial negotiations with RIDA began soon
thereafter.
Following the 201.4 RFQ, the District entered into an Exclusive Negotiating Agreement (ENA) with R1DA
Chula Vista, LLC, the entity formed by RIDA Development Corporation for this project. The ENA established
a timeline of deliverables during the term of the agreement, including programming the type and size of hotel
and convention center facilities. The ENA was subsequently extended via two amendments, dated August 9,
2016 and January 25, 2017. Beginning with initial approval of the ENA, the District and City worked
collaboratively in negotiating key deal terms with RIDA. These negotiations led to the approval of a non-
binding Letter of Intent (LOI) between the parties (approved June 20, 2017) and a Disposition and
Development Agreement (approved April 24, 2018).
Page 13
The DDA obligates RIDA to design and construct the following Phase 1A Infrastructure Improvements:
1. ln_ RoadSewer Improvements
a. E Street (from G Street to H Street)
b. The G Street Connection
c. H-3 Utility Corridor
2. Ba front Development BFDl Improvements
a. E Street (from G Street to H Street)
b. The G Street Connection
c. H Street (from Bay Boulevard to Street A]
d. H Street (from Marina Parkway to E Street)
e. Harbor Park Pedestrian Improvements
3. Other Improvements
a. E Street (from G Street to H Street]
b. The G Street Connection
c. H Street (from Bay Boulevard to Street A]
d. Ft Street (from Marina Parkway to E Street)
e. Harbor Park (Initial Phase of Park Improvements)
1 H-3 Site Preparation
g. H-3 Utility Corridor
In addition to obligating RIDA to construct the Phase 1A Infrastructure Improvements, the DDA also includes
related funding commitments of the public agencies. These include the City's obligation to fund the in -road
sewer improvements listed above and the joint obligation of the City and the District to reimburse RIDA in
cash for all funds expended prior to the DDA close of escrow in connection with the design of the Phase 1A
Infrastructure Improvements. In order to meet these obligations, the City has negotiated two reimbursement
agreements with RIDA (see Attachments 1 and 2]. The proposed resolutions approve the negotiated
reimbursement agreements and take certain procurement related actions, as requested by RIDA.
uniLAction Summary
Resolution A applies to the design and construction of the facilities designated as (1) In -Road Sewer
Improvements above, Resolution B applies only to the design of the facilities designated as (2) BFDIF
Improvements and (3] Other Improvements, above. Resolution C applies only to the construction of the
facilities designated as (2) BFDIF Improvements above. The construction of the facilities designated as (3)
Other Improvements and the planned convention center fall under the purview of the Authority and do not
require additional action by the Council. The following matrix summarizes the actions currently before the
Council and the anticipated future actions of the Authority.
Future Action of
Resolution rl
Resolution B
Resolution C
Authority
In -Road Sewer
Design X
Im rovements
.............. .
Construction k
BFDIF
Design
X
Improvements
...
Construction
. .....
X
Page 14
Future Action o€
Resolution A
Resolution B
Resolution C
Authority
Other
Design
X
Improvements
Construction
_
X
Convention
Design &
Center
Construction
RIDA's proposed procurement process and the proposed agreements and resolutions are discussed in
further detail below.
Pro osed Procurement Process
Chula Vista Municipal Code (CVMC) Section 2.56,160(H) establishes procurement rules for public works that
are constructed, or designed and constructed, by or at the direction of developer or private property owner
and subsequently accepted by, dedicated to, or acquired by the City ("developer -performed public works").
For those improvements that will be funded by the City, either in the form of cash reimbursement or
development impact fee credits, RIDA is subject to these procurement rules. For those improvements that
will be funded through the Authority (see (3) above, Other Improvements and the planned convention
center], RIDA will be subject to the procurement rules of the Authority. The Authority has not yet adopted
procurement rules; however, is anticipated that the Authority will adopt rules mirroring the provisions of
the City's ordinance at its next meeting. In addition, the Authority will grant approvals and waivers pursuant
to its procurement rules, if appropriate, for the Other Improvements and the convention center.
City Council indings and Waivers
As authorized by CVMC Section 2,56.160(H)(1)(b), RIDA intends to sole source the construction of the
convention center and the hotel to MMJV, a joint venture comprised of M.A. Mortenson Company
("Mortenson") and McCarthy Building Companies, Inc. ("McCarthy"]. RIDA has selected MMJV for this work
because Mortenson is an industry leader with a wealth of experience in similar large-scale projects, including
the recent construction of the Gaylord Rockies Resort and Convention Center project developed with a RIDA
affiliate. McCarthy provides a strong local presence, a positive reputation, relationships with the local
subcontractor community, and a resume of large-scale development projects. As previously described, the
approval of sole sourcing the convention center will be subject to future consideration by the Authority.
RlDA is requesting to also sole source the Phase 1A Infrastructure Improvements (including in -read sewer
facilities) to the same general contractor, MMJV. RIDA believes that the award of this contract to the same
entity constructing the convention center and hotel will provide for a compatible, streamlined, and successful
approach that will result in time and cost efficiencies and avoid logistical coordination issues that would
impede the overall schedule for the construction of the project. Staff concurs that the MMJV is highly
qualified to build all aspects of the project and concurs with RIDA's assessment that having one contractor
build both the public and private improvements will enhance project implementation quality and timeliness.
Accordingly, staff recommends that the City Council find that the sole source award of the general contract
to MMJV is in the "best interests" of the public.
For developer performed public improvements, CVMC Section 2.56.160(H)(2) also provides that all
subcontract solicitations must be sealed, competitive bids and may be awarded to the lowest responsive and
responsible bidder or the bidder that is determined by the developer to be the "best qualified contractor",
Page 15
The determination of "best qualified contractor" shall be based on the following: bidder's demonstrated
competence; qualifications; ability to achieve timely completion; capacity; skill; compliance with bid
documents; costs; and other relevant criteria. Per the same section of the CVMC, if the subcontracts are
awarded to a bidder other than the lowest responsive and responsible bidder, then all payments,
reimbursements, and credits against development impact fees are limited to the amount of the lowest
responsive and responsible bid for that individual line item or unit of work. This not -to -exceed limitation
can be waived, where: (1) the amount of the bid does not exceed the approved estimate for the developer -
performed work by more than 10%; and (2] the City approves the waiver.
RIDA has notified the City that the sealed bid provision is impractical for their subcontractor solicitation
process and is requesting a waiver of this requirement, pursuant to CVMC Section 2.56.160[H)(6). Staff has
reviewed this request and determined that the subcontractor selection process to be employed by RIDA
controls project costs and supports timely completion of the improvements, while including appropriate
safeguards to protect the public interest. Staff recommends City Council waiver of the requirement to solicit
subcontractors via sealed bids.
In addition, RIDA intends to award subcontracts to "best qualified contractors" and not to lowest responsive
and responsible bidders and may request a waiver of the not -to -exceed limitation previously described.
Because final bids are not in place for this work, it is recommended that the City Council direct the City
Manager, or designee, to oversee and implement the subcontractor solicitation and award process, including
making findings and approving the award of subcontracts to "best qualified contractors" and making findings
and waiving the above the above -described not -to -exceed limitation in accordance with Chula Vista
Municipal Code Section 2.56.160(H).
While not currently known, it is also possible that market conditions will require a limited number of sole
source awards to subcontractors. CVMC Section 2.56.160[H)(1)(b) establishes the conditions and
circumstances under which a sole source contract may be approved. These conditions/circumstances
include: (A) performance capabilities of the proposed entity or contractor; (B) project characteristics; (C)
manufacturing processes; (D] compatibility requirements; and (E) market or other
conditions/circumstances that render the award of a sole source contract to be in the best interest of the
public. Staff recommends that the City Council authorize and direct the City Manager, or their designee, to
make findings and waive the requirement to competitively bid subcontracts, subject to the sole source bid
award considerations prescribed in CVMC Section 2.56.160(H)(1)(b).
Sewer ReimhursesrientAgreement (Resolution A)
Per the DDA, in -road sewer improvements (the "Sewer Improvements"] to be constructed by RIDA will be
funded by the City's Sewer Facility Contribution. RIDA's Sewer Improvements are estimated to cost a total
of $1,195,000, including design. Actual costs will be determined during the bidding and construction process.
The City has identified sufficient funds to reimburse RIDA for these expenses in the City's Sewer Income
Fund. Per Chula Vista Municipal Code (CVMC) Section 13.14.030, the Sewer Income Fund is a repository for
one-time fees collected from persons connecting, directly or indirectly, to the City's sewer system. CVMC
Chapter 3.16 provides that these funds may be used, in the discretion of the City Council and pursuant to
written contract, to reimburse any person who constructs sewer facilities that benefit other properties. The
Page 16
Sewer Improvements are qualifying facilities. An agreement to allow for the reimbursement of eligible Sewer
Improvement expenses has been negotiated with RIDA (the "Sewer Reimbursement Agreement", see
Attachment 1).
Adoption of Resolution A approves the proposed Sewer Reimbursement Agreement and implements the
City's related commitments in the DDA. The resolution also approves the award of a sole source prime
contract, waives the sealed bid requirement for subcontractors, and directs the City Manager, or their
designee to oversee and implement the subcontractor solicitation and award process, including without
limitation the following: (1] the authority to make findings and waive the requirement to competitively bid
subcontracts, after consideration of factors for sole source contracts; (2) the authority to make findings and
approve the award of subcontracts to "best qualified contractors'; and (3) the authority to make findings and
waive the not -to -exceed limitation for award of subcontracts for the Project- These actions are necessary in
order for RIDA to move forward with their preferred procurement process, ensuring efficient progression
and timely completion of the project. Sufficient safe guards are in place to protect the public interest.
Resolution A also includes an appropriation from the Sewer Income Fund in the amount of $1,195,000.
Bayfront Public Infrastructure 1 provements Design Reimbursement Agreemert (Resolutio B
Section 4.7(c) of the DDA provides that the District and the City will reimburse the Developer in cash for any
and all funds expended prior to the DDA close of escrow in connection with design, architectural work, and
engineering work for the Developer's Phase 1A Infrastructure Improvements. An agreement to allow for the
reimbursement of eligible pre -close professional services has been negotiated with RIDA (the "Design
Reimbursement Agreement", see Attachment 2). As design costs associated with RIDA's Sewer
Improvements will be reimbursed by the City pursuant to the Sewer Reimbursement Agreement discussed
above, they are excluded from the Design Reimbursement Agreement, Adoption of Resolution B approves
the Proposed Design Reimbursement Agreement and implements the City's related commitments in the DDA.
The City estimates that the total reimbursement amount will not exceed $715,000 and has identified and set
aside funds generated by the Bayfront project for this purpose. The City may be reimbursed from bond
proceeds and the BFDIF for this expense in the future.
Resolution eleQinjz Waiver Authority Relating to BFDIF Facilities (Resolutton�7
The DDA also obligates RIDA to construct certain BFDIF eligible improvements, as listed above. Per the
BFDIF Ordinance, any developer that constructs a BFDIF facility is eligible for credits against the BFDIF fees
that would otherwise be due with their building permits. The BFDIF Ordinance requires that developers
follow the provisions of CVMC Section 2.56.160(H) (Developer -Performed Public Works).
As with the Developer's Sewer Improvements, the Developer is requesting approval of a sole source prime
contract, waiver of the sealed bid requirement for subcontractors, waiver of the requirement to
competitively bid subcontracts, and waiver of the not -to -exceed provision of CVMC 2.56,160(H](2)(d]. If
approved, Resolution C approves the award of a sole source prime contract, waives the sealed bid
requirement for subcontractors, and directs the City Manager, or their designee, to oversee and implement
the subcontractor solicitation and award process, including without limitation the following: (1) the
authority to make findings and waive the requirement to competitively bid subcontracts, after consideration
of factors for sole source contracts; (2) the authority to make findings and approve the award of subcontracts
Page 17
to "best qualified contractors"; and (3) the authority to make findings and waive the not -to -exceed limitation
for award of subcontracts for the Project. These actions are necessary in order for RIDA to move forward
with their preferred procurement process, ensuring efficient progression and timely completion of the
project. Sufficient safe guards are in place to protect the public interest.
DECISION -MAKER CONFLICT
Staff has reviewed the property holdings of the City Council members and has found no property holdings
within 1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this
item does not presenta disqualifying real property -related financial conflict of interest under California Code
of Regulations Title 2, section 18702.2(a)(7) or (8], for purposes of the Political Reform Act (Cal, Gov't Code
§87100, et seq.].
Staff is not independently aware, and has not been informed by any City Council member, of any other fact
that may constitute a basis for a decision -maker conflict of interest in this matter.
CURRENT -YEAR FISCAL IMPACT
All costs associated with the preparation of this report and associated agreements are included in the
operating budget for the Development Services Fund. There is no current fiscal year impact to the General
Fund as a result of this action. Approval of Resolution A authorizes the City to enter into a Reimbursement
Agreement with RIDA for construction of specified sewer improvements in the CVBMP and appropriates
$1,195,000 from the Sewer Income Fund for this purpose. Approval of Resolution B authorizes the City to
enter into a Reimbursement Agreement with RIDA far design of CVBMP infrastructure improvements and
appropriates $715,000 from the Bayfront reserve set aside in the General Fund for this purpose, subject to
future reimbursement from the BFDIF Fund and bond proceeds. Approval of Resolution C has no fiscal
impact.
ONGOING FISCAL IMPACT
All funds are anticipated to be expended in the current fiscal year. There is no ongoing fiscal impact as a
result of this action.
ATTACHMENTS
1. Reimbursement Agreement with RIDA Chula Vista, LLC to Construct Specified Bayfront Sewer
Improvements
2. Reimbursement Agreement with RIDA Chula Vista, LLC to Design Specified Bayfront Infrastructure
Improvements
Staf'Contact: 7'fJany Alien, Assistant Director of Development Services
Page 18
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA (1) APPROVING A REIMBURSEMENT
AGREEMENT BETWEEN THE CITY AND RIDA CHULA
VISTA, LLC ('DEVELOPER") TO CONSTRUCT SPECIFIED
SEWER IMPROVEMENTS; (2) FINDING THE DEVELOPER'S
PROPOSED SOLE SOURCE AWARD TO ITS GENERAL
CONTRACTOR TO CONSTRUCT SUCH IMPROVEMENTS TO
BE IN THE BEST INTEREST OF THE PUBLIC, PURSUANT TO
CHULA VISTA MUNICIPAL CODE SUBSECTION 2.56.160(H),
"DEVELOPER -PERFORMED PUBLIC WORKS"; (3)
DELEGATING TO THE CITY MANAGER AUTHORITY TO
ASSURE COMPLIANCE WITH APPLICABLE
PROCUREMENT REQUIREMENTS FOR
SUBCONTRACTORS; AND (4) APPROPRIATING FUNDS
THEREFOR (415 VOTE REQUIRED)
WHEREAS, the City, RIDA Chula Vista, LLC ("Developer"), and the San Diego Unified
Port District ("District") entered into a Disposition and Development Agreement for the Resort
Hotel Convention Center Project (Chula Vista Bayfront Master Plan Parcel H-3), effective May?,
2018 (the DDA); and
WHEREAS, pursuant to the DDA, in addition to a resort hotel, consisting of no less than
1,570 rooms and no more than 1,600 rooms (the "Hotel") and related resort -level amenities as
more fully described in the Scope of Development attached to the DDA (collectively, the
"Developer's Private Improvements") the Developer shall construct a portion of the substantial
public improvements required for development of the Chula Vista Bayfront Master Plan Area (the
"Developer's Phase IA Infrastructure Improvements"); and
WHEREAS, the Scope of Development attached to the DDA provides that the Developer
shall construct certain in -road sewer improvements included in the Developer's Phase I A
Infrastructure Improvements, consisting of: E Street (from 0 Street to H Street), the 0 Street
Connection, and the H-3 Utility Corridor (collectively, the "Developer's Sewer Improvements" or
"Project"), to be funded by the City's Sewer Facility Contribution, as defined in the DDA; and
WHEREAS, pursuant to Chula Vista Municipal Code (CVMC) Section 13.14.030(B)
(Connection to Public Sewer — Fee), any person desiring to connect, directly or indirectly, any
parcel or any building thereon to any public sewer which has been constructed at no cost to the
parcel to be connected shall pay the one-time required fee for sewer connection to the City, with
all revenue derived from such fees to be deposited into the Sewer Income Fund; and
WHEREAS, pursuant to CVMC Chapter 3.16 (Sewer Income Fund), all revenues collected
under CVMC Section 13.14.030(E) shall be deposited into the "Sewer Income Fund" and may be
used, in the discretion of the City Council and pursuant to a written contract, to reimburse any
�:'J' ls'xltererk csk[an Rrsu I i • r r•m...... 1466 c iti �,�i 1•T7r $a6k9e147$2iiis d1 4
nn.y,ti--tlilllwlp�. �,'ri�d'rr
Resolution No.
Page 2
person who has constructed sewer facilities, to the extent, as determined by the City Council, that
such sewer facilities have benefited other properties; and
V►WHEREAS, construction of the Developer's Sewer Improvements will provide a public
benefit to other property owners within the Chula Vista Bayfront Master Plan area; and
W I-IEREAS, the Developer's Sewer Improvements are estimated to total $1,195,000 and
are eligible for reimbursement from the Sewer Income Fund; and
WHEREAS, the City has sufficient funds in the Sewer Income Fund to reimburse
Developer for the design and construction of the Developer's Sewer Improvements; and
WHEREAS, Developer desires to enter into a Reimbursement Agreement with the City in
the form presented in Exhibit 1 to this resolution, so that it may obtain reimbursement for the
eligible costs of designing and constructing Developer's Sewer Improvements; and
WHEREAS, CVMC Section 2.55,1 b0(H) (Developer -Performed Public Works) regulates
the procurement of developer -performed public works within the City; and
WHEREAS, CVMC Section 2.56.160(H)(1)(b) provides that a developer may award a
contract for a developer -performed public work on a sole source basis where, in addition to
compliance with all applicable requirements of CVMC Section 2.56.160(H), the City makes
findings that an award of a sole source contract is in the best interest of the public because of the
particular (A) performance capabilities of the proposed entity or contractor, (B) project
characteristics, (C) manufacturing processes, (D) compatibility requirements, and/or (E) market or
other conditions/circumstances that render the award of a sole source contract to be in the best
interest of the public and the entity or contractor awarded a sole source contract for a developer -
performed public work competitively bids all subcontracts for the developer -performed public
work; and
WHEREAS, Developer intends to combine into one bid solicitation the construction of the
Developer's Phase IA Infrastructure Improvements, including the Developer's Sewer
Improvements (the "Phase 1 A Project"); and
WHEREAS. Developer has selected MMJV, a joint venture comprised of M.A. Morten son
Company ("Mortenson") and McCarthy Building Companies, Inc. ("McCarthy"), (the "General
Contractor") for construction of the Developer's Private Improvements; and
WHEREAS, Developer has selected MMJV for the construction of the Developer's Private
Improvements on the following basis: Mortenson is an industry leader with a wealth of experience
in similar large-scale projects, including the recent construction of the Gaylord Rockies Resort and
Convention Center project developed by a RIDA affiliate which makes it uniquely qualified to
develop the Developer's Private Improvements; and McCarthy provides a strong local presence,
positive reputation, relationships with the local subcontractor community, and a resume of large-
scale development projects; and
Resolution No.
Page 3
WHEREAS, as authorized by CVMC Section 2.56.160(H)(l)(b), Developer is seeking
City acceptance of MMJV as the sole source General Contractor for the Phase 1 Project
improvements based on their belief that hiring MMJV as General Contractor for both the
Developer's Private Improvements and the Phase IA Project will provide for a compatible,
streamlined, and successful approach that will result in time and cost efficiencies, and avoid
logistical coordination issues that would otherwise and impede the overall schedule for the
construction of the Developer's Private Improvements and the Phase IA Project; and
WHEREAS, staff concurs that the MMJV is highly qualified to build all aspects of the
project and concurs with RIDA's assessment that having one contractor build both the public and
private improvements will enhance project implementation quality and timeliness. Accordingly,
staff recommends that the City Council find that the sole source award of the general contract to
MMJV is in the "best interests" of the public; and
WHEREAS, CVMC Section 2.56.160(i-1)(1)(b)(ii) requires the competitive bidding of all
subcontracts for developer -performed public works, if the prime contract is awarded on a sole
source basis; and
WHEREAS, CVMC Section 2.56.160(H)(2)(c) requires the solicitation of sealed
competitive bids for subcontracts for developer -performed public works; and
WHEREAS, CVMC Section 2.56.16O(H)(2)(d) states that "Developer shall award
contracts (except for contracts awarded pursuant to subsection (H)(I)(b) of this section), and shall
award, or shall cause the applicable entity or contractor to award, subcontracts for developer -
performed public work to the lowest responsive and responsible bidder, or the bidder that is
determined by developer to be the "best qualified contractor,,, subject to City approval. When
determining the "best qualified contractor," developer shall consider, without limitation, a bidder's
demonstrated competence, qualifications, ability to achieve timely completion, capacity, skill,
compliance with bid documents, costs, and other relevant criteria; and
WHEREAS, Developer intends to award subcontracts for the Project to "best qualified
contractors" to ensure that the Project is constructed in a timely manner by subcontracting teams
that are best qualified to perform the work; and
WHEREAS, Developer has presented City staff with an outline of their process for
selecting the "best qualified" subcontractor based upon a variety of factors including: past relevant
/ similar project experience, customer feedback from those projects, current backlog, available
trades personnel resources, proposed supervisory / management personnel, financial capability,
design capabilities (for design -build subcontracts), schedule management plan, quality
management plan, and pricing; and
WHEREAS, the subcontractor selection process outlined by Developer does not include
the solicitation of sealed bids; and
WHEREAS, certain conditions and circumstances may arise in the subcontractor selection
process that require sole source subcontract awards; and
Resolution No.
Page 4
WHEREAS, staff is satisfied that Developer's proposed process meets the intent of the
City's competitive bidding requirements and will result in the selection of the "best qualified"
subcontractors consistent with City interests in high quality and timely construction per City
standards and the agreements between the parties under the DDA; and
WHEREAS, final subcontractor bids for the Project will not be received or awarded until
after the approval of this resolution; and
WHEREAS, as subcontracts for the Project have not yet been awarded, staff recommends
authorizing the City Manager, or designee, to make findings and to waive the competitive bid
requirement for subcontractors and to approve subcontract awards for the Project to "best
qualified" subcontractors; and
WHEREAS, CVMC Section 2.56.1 GD(H)(1)(b) establishes the conditions and
circumstances under which a sole source contract may be approved, including: performance
capabilities of the proposed entity or contractor; project characteristics; manufacturing processes;
compatibility requirements; and market or other conditions/circumstances that render the award of
a sole source contract to be in the best interest of the public; and
WHEREAS, staff recommends that the considerations prescribed in CVMC Section
2.56.160(H)(1)(b) be employed in any decision of the City Manager, or designee, to waive the
competitive bid requirement for subcontractors to allow for a sole source subcontract award; and
WHEREAS, CVMC Section 2.56.160(H)(2)(d) states that "[i]fa developer awards a prime
contract or subcontract to a bidder other than the lowest responsive and responsible bidder for an
item or unit of work, then all payments, reimbursements, and credits against developer impact fees
or other developer fees or obligations ("development credits") shall not exceed the amount of the
lowest responsive bidder for that item or unit of work. This not -to -exceed limitation may be
waived where: (i) The amount of the bid does not exceed the engineer's estimate or other approved
estimate for the developer -performed public work by more than 10 percent; and (ii) City approves
the waiver in accordance with subsection (H)(6) of this section-"; and
WHEREAS, CVMC Section 2.56.160(H)(6) provides that all or portions of the developer -
performed public work ordinance may be waived where "the waiver is in the best interest of the
public after consideration of factors including, without limitation, project costs, time for
completion, and other relevant criteria, and (ii) appropriate safeguards are in place to protect the
public interest"; and
WHEREAS, Developer may request a waiver of the not -to -exceed limitation pursuant to
2.56.160(H)(2)(d) prior to award of subcontracts; and
WHEREAS, appropriate safeguards are in place to protect the public interest, including the
previously described 10 percent not -to -exceed limit; and
•
Resolution No.
Page 5
WHEREAS, as subcontracts have not yet been awarded, staff recommends authorizing the
City Manager, or designee, to make findings and waive the not -to -exceed limitation in accordance
with CVMC Section 2.56.1 60(H)(2); and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista
as follows:
1. After consideration of CVMC 3.16.010 and the Recitals above, the City Council has
determined that the construction of the Project will provide a public benefit to other
properties within the Chula Vista Bayfi-ont Master Plan area.
2. The City Council approves the Reimbursement Agreement, between the City and
RIDA Chula Vista, LLC to Construct Specified Sewer Improvements, in the form
presented, with such minor modifications as may be required or approved by the City
Attorney, a copy of which shall be kept on file in the Office of the City Clerk, and
authorizes and directs the City Manager to execute same.
3. After consideration of factors in CVMC 2.56.160(H)(1)(b)(i), staffs report on this
item, and the Recitals above, the City Council finds that the award of a sole source
contract to MMJV for the design and construction of the Project is in the best interest
of the public.
4. After consideration of the facts stated in staffs report on this item and the Recitals
above, the City Council finds that the waiver of the sealed bid requirement for
subcontractors is in the best interest of the public and appropriate safeguards are in
place to protect the public interest.
5. The City Council authorizes and directs the City Manager, or his/her designee, to
oversee and implement the subcontractor solicitation and award process provided in
CVMC 2.56.160(H), including, without limitation the following:
a. The authority, pursuant to CVMC Section 2.56.160(H)(b), after
consideration of factors for sole source contracts as provided in CMVC
Section 2.56.160(H)(1)(b), to make findings and approve the waiver of the
competitive bid requirements for subcontractors as provided in CVMC
2.56.160(H)(2)(b).
b. The authority, pursuant to CMVC Section 2.56.160(H)(2)(d), to make
findings and approve the award of subcontracts for the Project to "best
qualified contractors".
c. The authority, pursuant to CVMC Section 2.56.160(H)(2)(d), to make
findings and waive the not -to -exceed limitation for award of subcontracts
for the Project.
Where necessary or appropriate for purposes of implementing this action, the City
Council delegates its authority to the City Manager, or his/her designee, to waive
requirements and make findings as required by CVMC Section 2.56.160(H).
6. BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
appropriates funds from the Sewer Income Fund to reimburse Developer pursuant to
the Reimbursement Agreement between the City and RIDA Chula Vista, LLC to
Construct Specified Sewer Improvements.
Resolution No,
Page 6
Presented by
Kelly G. Broughton, FASLA
❑irector of Development Services
Approved as to fonn by
Glen R. Googins
City Attorney
ft1 Ii] Pb I161 12M
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A REIMBURSEMENT
AGREEMENT BETWEEN THE CITY AND RIDA CHULA
VISTA, LLC TO DESIGN SPECIFIED BAYFRONT
INFRASTRUCTURE IMPROVEMENTS AND
APPROPRIATING FUNDS THEREFOR (415 VOTE REQUIRED)
WHEREAS, the City, RIDA Chula Vista, LLC ("Developer"), and the San Diego Unified
Port District ("District") entered into a Disposition and Development Agreement for the Resort
Hotel Convention Center Project (Chula Vista Bayfront Master Plan Parcel H-3), effective May 7,
2018 (the DDA); and
WHEREAS, pursuant to the DDA, in addition to a resort hotel, consisting of no less than
1,570 rooms and no more than 1,600 rooms (the "Hotel") and related resort -level amenities as
more fully described in the Scope of Development attached to the DDA (collectively, the
"Developer's Private Improvements") the Developer shall construct a portion of the substantial
public improvements required for development of the Chula Vista Bayfront Master Plan,
consisting of: E Street (from G Street to H Street), the G Street Connection, H Street (Bay
Boulevard to Street A), H Street (Marina Parkway to E Street), Harbor Park (Initial), H-3 Site
Prep, and the H-3 Utility Corridor (the "Developer's Phase IA Infrastructure Improvements"); and
WHEREAS. Section 4.7(c) of the DDA provides that the District and the City shall
reimburse the Developer in cash for any and all funds expended prior to the DDA close of escrow
by the Developer in connection with design, architectural work, and engineering work for the
Developer's Phase IA Infrastructure Improvements as set forth in the Scope of Development, other
than the amounts that have been paid to Developer pursuant to Section 4.8(e) of the DDA, from
the first disbursement of the public fund contribution pursuant to the construction loan account
instructions (the "Project"); and
WHEREAS, the City estimates a total Project cost of $715,000 and has identified and set
aside funds generated by the Bayfront project sufficient for this project; and
WHEREAS, Developer desires to enter into a Reimbursement Agreement with the City in
the form presented in Exhibit I to this resolution, so that it may obtain reimbursement for the
eligible costs of designing Developer's Phase IA Infrastructure Improvements incurred prior to
DDA close of escrow.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista,
that it approves the Reimbursement Agreement, between the City and RIDA Chula Vista, LLC to
Design Specified Bayfront Infrastructure Improvements, in the form presented, with such minor
modifications as may be required or approved by the City Attorney, a copy of which shall be kept
on file in the Office of the City Clerk, and authorizes and directs the City Manager to execute
same.
Resolution No.
Page 2
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
appropriates funds from the Bayfront reserve of the General Fund to reimburse Developer pursuant
to the Reimbursement Agreement between the City and RIDA Chula Vista, LLC to Design
Specified Bayfmnt Infrastructure Improvements,
Presented by
Kelly G. Broughton, FASLA
Director of Development Services
Approved as to form by
Glen R. Googins
City Attorney
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA FINDING RIDA CHULA VISTA, LLC'S
PROPOSED SOLE SOURCE AWARD TO ITS GENERAL
CONTRACTOR TO CONSTRUCT BAYFRONT
DEVELOPMENT IMPACT FEE TRANSPORTATION
FACILITIES TO BE IN THE BEST INTEREST OF THE PUBLIC,
PURSUANT TO CHULA VISTA MUNICIPAL CODE
SUBSECTION 2.56.160(H), "DEVELOPER -PERFORMED
PUBLIC WORKS," AND DELEGATING TO THE CITY
MANAGER AUTHORITY TO ASSURE COMPLIANCE WITH
APPLICABLE PROCUREMENT REQUIREMENTS FOR
SUBCONTRACTORS
WHEREAS, the City of Chula Vista, RIDA Chula Vista, LLC ("Developer"), and the San
Diego Unified Port District ("District") entered into a Disposition and Development Agreement
for the Resort Hotel Convention Center Project (Chula Vista Bayfront Master Plan Parcel H-3)
(the "Project"), effective May?, 2018 (the "DDA"); and
WHEREAS, pursuant to the DDA, in addition to a resort hotel, consisting of no less than
1,570 rooms and no more than 1,600 rooms (the "Hotel") and related resort -level amenities as
more fully described in the Scope of Development attached to the DDA (collectively, the
"Developer's Private Improvements") the Developer shall construct a portion of the substantial
public improvements required for development of the Chula Vista Bayfront Master Plan Area (the
"Developer's Phase IA Infrastructure Improvements"); and
WHEREAS, the Scope of Development attached to the DDA provides that the Developer
shall construct certain Bayfront Development Impact Fee (BFDIF) transportation and pedestrian
improvements included in the Developer's Phase 1A Infrastructure Improvements, consisting of
E Street (from G Street to H Street), the G Street Connection, H Street (from Bay Boulevard to
Street A), H Street (from Marina Parkway to E Street), and the initial phase of Harbor Park
(collectively, the "Developer's BFDIF Improvements"); and
WHEREAS, Chula Vista Municipal Code (CVMC) Chapter 3.54 establishes a series of
transportation development impact fee programs, including the BFDIF; and
WHEREAS, pursuant to CVMC Section 3.54. I40, developers of development projects that
are required, or that propose, to construct BFDIF transportation facilities are eligible for credit
against their BFDIF fee obligation; and
WHEREAS, pursuant to CVMC Section 3,54.150(A), a developer constructing BFDIF
transportation facilities shall comply with the procedures set forth in CVMC 2.56,160(H), except
that City Council approval to proceed shall not be required for developer -constructed
transportation facilities to be constructed for fee credit; and
WHEREAS, CVMC Section 2.56.16O(H)(l)(b) provides that a developer may award a
contract for a developer -performed public work on a sole source basis where, in addition to
compliance with all applicable requirements of CVMC Section 2.56.160(H), the City makes
findings that an award of a sole source contract is in the best interest of the public because of the
particular (A) performance capabilities of the proposed entity or contractor, (B) project
characteristics, (C) manufacturing processes, (D) compatibility requirements, and/or (E) market or
other conditions/circumstances that render the award of a sole source contract to be in the best
interest of the public and the entity or contractor awarded a sole source contract for a developer -
performed public work competitively bids all subcontracts for the developer -performed public
work; and
WH EREAS, Developer intends to combine into one bid solicitation the construction of the
Developer's Phase IA Infrastructure Improvements, including the Developer's BED IF
Improvements (the "Phase 1 Project"); and
WHEREAS, Developer has selected MMJV, a joint venture comprised of M.A. Mortenson
Company ("Mortenson") and McCarthy Building Companies, Inc. ("McCarthy"), (the "General
Contractor") for construction of the Developer's Private Improvements; and
WHEREAS, Developer has selected MMJV for the construction of the Developer's Private
Improvements on the following basis: Mortenson is an industry leader with a wealth of experience
in similar large-scale projects, including the recent construction of the Gaylord Rockies Resort and
Convention Center project developed by a RIDA affiliate which makes it uniquely qualified to
develop the Developer's Private Improvements, and McCarthy provides a strong local presence,
positive reputation, relationships with the local subcontractor community, and a resume of large-
scale development projects; and
WHEREAS, as authorized by CVMC Section 2.56.160(H)(1)(b), Developer is seeking
City acceptance of MMJV as the General Contractor for the Phase 1 A Project improvements based
on their belief that hiring MMJV as General Contractor for both the Developer's Private
Improvements and the Phase l A Project will provide for a compatible, streamlined, and successful
approach that will result in time and cost efficiencies, and avoid logistical coordination issues that
would otherwise impede the overall schedule for the construction of the Developer's Private
Improvements and the Phase 1A Project; and
WHEREAS, staff concurs that the MMJV is highly qualified to build all aspects of the
project and concurs with R1DA's assessment that having one contractor build both the public and
private improvements will enhance project implementation quality and timelines. Accordingly,
staff recommends that the City Council find that the sole source award of the general contract to
MMJV is in the "best interests" of the public; and
WHEREAS, CVMC Section 2.56, 1 60(H)( I )(b)(ii) requires the competitive bidding of all
subcontracts for developer -performed public works, if the prime contract is awarded on a sole
source basis; and
Resolution No.
Page 3
WHEREAS, CVMC Section 2.56.160(H)(2)(c) requires the solicitation of sealed
competitive bids for subcontracts for developer -performed public works; and
WHEREAS, CVMC Section 2.56.16Q(H)(2)(d) states that "Developer shall award
contracts (except for contracts awarded pursuant to subsection (H)(1)(b) of this section), and shall
award, or shall cause the applicable entity or contractor to award, subcontracts for developer -
performed public work to the lowest responsive and responsible bidder, or the bidder that is
determined by developer to be the "best qualified contractor," subject to City approval. When
determining the "best qualified contractor," developer shall consider-, without limitation, a bidder's
demonstrated competence, qualifications, ability to achieve timely completion, capacity, skill,
compliance with bid documents, costs, and other relevant criteria; and
WHEREAS. Developer intends to award subcontracts for the Project to "best qualified
contractors" to ensure that the Project is constructed in a timely manner by subcontracting teams
that are best qualified to perform the work; and
WHEREAS, Developer has presented City staff with an outline of their process for
selecting the "best qualified" subcontractor based upon a variety of factors including: past relevant
/ similar project experience, customer feedback from those projects, current backlog, available
trades personnel resources, proposed supervisory / management personnel, financial capability,
design capabilities (for desigir-build subcontracts), schedule management plan, quality
management plan, and pricing; and
WHEREAS, the subcontractor selection process outlined by Developer does not include
the solicitation of sealed bids; and
WHEREAS, certain conditions and circumstances may arise in the subcontractor selection
process that require sole source subcontract awards; and
WHEREAS, staff is satisfied that Developer's proposed process meets the intent of the
City's competitive bidding requirements and will result in the selection of the "best qualified"
subcontractors consistent with City interests in high quality and timely construction per City
standards and the agreements between the parties under the DDA; and
WHEREAS, final subcontractor bids for the Project will not be received or awarded until
after the approval of this resolution; and
WHEREAS, as subcontracts for the Project have not yet been awarded, staff recommends
authorizing the City Manager, or designee, to make finding and to waive the competitive bid
requirement for subcontractors and to approve subcontract awards for the Project to "best
qualified" subcontractors; and
WHEREAS, CVMC Section 2.56. I64(H)(1)(b) establishes the conditions and
circumstances under which a sole source contract may be approved, including: performance
capabilities of the proposed entity or contractor; project characteristics; manufacturing processes;
compatibility requirements; and market or other conditions/circumstances that render the award of
a sole source contract to be in the best interest of the public; and
WHEREAS, staff recommends that the considerations prescribed in CVMC Section
2.56.160(H)(1)(b) be employed in any decision of the City Manager, or designee, to waive the
competitive bid requirement for subcontractors to allow for a sole source subcontract award; and
WHEREAS, CVMC Section 2.56.160(H)(2)(d) states that "[i]fa developer awards a prune
contract or subcontract to a bidder other than the lowest responsive and responsible bidder for an
item or unit of work, then all payments, reimbursements, and credits against developer impact fees
or other developer fees or obligations (`development credits") shall not exceed the amount of the
lowest responsive bidder for that item or unit of work. This not -to -exceed limitation may be
waived where: (i) The amount of the bid does not exceed the engineer's estimate or other approved
estimate for the developer -performed public work by more than 10 percent; and (ii) City approves
the waiver in accordance with subsection (H)(6) of this section.'; and
WHEREAS, CVMC Section 2.56.160(H)(6) provides that all or portions of the developer -
performed public work ordinance may be waived where "the waiver is in the best interest of the
public after consideration of factors including, without limitation, project costs, time for
completion, and other relevant criteria, and (ii) appropriate safeguards are in place to protect the
public interest"; and
WHEREAS, Developer may request a waiver of the not -to -exceed limitation pursuant to
2.56.160(H)(2)(d) prior to award of subcontracts, and
WHEREAS, appropriate safeguards are in place to protect the public interest, including the
previously described 10 percent not -to -exceed limit; and
WHEREAS, as subcontracts have not yet been awarded, staff recommends authorizing the
City Manager, or designee, to make findings and waive the not -to -exceed limitation in accordance
with CVMC Section 2.56,160(H)(2).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista
as follows:
1. After consideration of factors in CVMC 2.56.160(H)(1)(b)(i) and the facts stated in
staffs report on this item and the Recitals above, that the award of a sole source
contract to MMJV for Developer's BFDIF Improvements is in the best interest of the
public.
2. After consideration of the facts stated in staffs report on this item and the Recitals
above, the City Council finds that the waiver of the sealed bid requirement for
subcontractors is in the best interest of the public and appropriate safeguards arc in
place to protect the public interest.
3. The City Council authorizes and directs the City Manager, or his/her designee, to
oversee and implement the subcontractor solicitation and award process provided in
CVMC 2.56.160(H), including, without limitation the following:
Resolution No.
Page 5
a. The authority, pursuant to CVMC Section 2,56.160(H)(6), after
consideration of factors for sole source contracts as provided in CMVC
Section 2.56.I6O(H)(1)(b), to make findings and approve the waiver of the
competitive bid requirements for subcontractors as provided in CVMC
2.56.160(H)(2)(b).
b. The authority, pursuant to CMVC 2.56.160(H)(2)(d), to the City Manager,
or designee, to make findings and approve the award of subcontracts for the
Developer's BFDIF Improvements to "best qualified contractors".
c. The authority, pursuant to CVMC Section 2.56.160(H)(2)(d), to the City
Manager, or designee, to waive the not -to -exceed limitation for award of
subcontracts for the Developer's BFDIF Improvements.
Where necessary or appropriate for purposes of implementing this action, the City
Council delegates its authority to the City Manager, or his/her designee, to waive
requirements and make findings as required by CVMC Section 2.56.160(H).
Presented by Approved as to form by
Kelly G. Broughton, FASLA Glen R. Googins
Director of Development Services City Attorney
CITY OF CHULA VISTA
REIMBURSEMENT AGREEMENT
WITH RIDA CHULA VISTA, LLC
TO CONSTRUCT SPECIFIED BAYFRONT SEWER IMPROVEMENTS
This REIMBURSEMENT AGREEMENT ("Agreement") is entered into as of this
day of , 20 (the "Execution Date") by and among the City of Chula Vista, a
chartered municipal corporation ("City") and RIDA Chula Vista, LLC, a Delaware limited liability
company ("Developer") (collectively, the "Parties" and, individually, a "Party"), with reference to
the following Recitals:
RECITALS
A. WHEREAS, City, Developer, and the San Diego Unified Port District ("District")
entered into a Disposition and Development A&eement for the Resort Hotel Convention Center
Project (Chula Vista Bayfront Master Plan Parcel H-3), effective May 7, 2018 (the "DDA"); and
B. WHEREAS, the Scope of Development attached to the DDA provides that the
Developer shall in connection with the development of Developer's Private Improvements (as
defined in the DDA) construct certain in -road sewer improvements, consisting of E Street (from
G Street to H Street), the G Street Connection, and the I-1-3 Utility Corridor (collectively, the
"Developer's Sewer Improvements" or "Project"), to be funded by the City's Sewer Facility
Contribution; and
C:, WHEREAS, pursuant to Chula Vista Municipal Code ("CVMC") Section
13.14.030(B) (Connection to Public Sewer -- Fee), any person desiring to connect, directly or
indirectly, any parcel or any building thereon to any public sewer which has been constructed at
no cost to the parcel to be connected shall pay the one-time required fee for sewer connection to
the City, with all revenue derived from such fees to be deposited into the Sewer Income Fund; and
D. WHEREAS, pursuant to CVMC Chapter 3.16 (Sewer Income Fund), all revenues
collected under CVMC Section 13.14.030(B) shall he deposited into the "Sewer Income Fund"
and may be used, in the discretion of the City Council (as defined below) and pursuant to a written
contract, to reimburse any person who has constructed sewer facilities to the extent, as determined
by the City Council, that such sewer facilities have benefited other properties; and
E. WHEREAS, the Developer's Sewer Improvements are eligible for reimbursement
from the Sewer Income Fund; and
F. WHEREAS, the City has sufficient funds in the Sewer Income Fund to reimburse
Developer for the design, development and construction of the Developer's Sewer Improvements;
and
uS-O0051103150550.15
G. WHEREAS, Developer desires to enter into this Agreement with the City, so that
it may obtain reimbursement for the eligible costs of designing, developing and constructing
Developer's Sewer Improvements.
AGREEMENT
NOW THEREFORE, in consideration of the above Recitals, the covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties
hereby acknowledge, City and Developer agree as follows:
ARTICLE I. DEFINITIONS
in this Agreement, unless the context otherwise requires, the following terms and phrases shall
have the following meanings:
1.1- Acceptance. "Acceptance" means Project acceptance pursuant to standard and customary
City practices.
1.2. Agreement. "Agreement" means this Reimbursement Agreement between the City and the
Developer. The term "Agreement" shall include any amendment to the Agreement
properly approved and executed pursuant to the terms of this Agreement.
1.3. Approved Drawings and Specifications. "Approved Drawings and Specifications" means
the drawings and specifications for the Developer's Sewer Improvements as approved and
permitted by the City.
1.4. BMP. "BMP" has the meaning given to such term in Section 8.1.3.
1.5. Cam. "City" means the City of Chula Vista. Unless specifically provided otherwise,
whenever this Agreement requires an action or approval by City, that action or approval
shall be performed by the City representative designated by the Agreement.
1.6. City Attorney. "City Attorney" means that position established pursuant to and in
accordance with CVMC Chapter 2.11,
1.7. City Council. "City Council" means the governing body of the City.
1.8. City Engineer. "City Engineer" means that position established pursuant to and in
accordance with CVMC Chapter 2.06.
1.9. City Manager. "City Manager" means the City Manager of City or his or her designee.
1.10. Competitive Bid or Solicitation Process. "Competitive Bid or Solicitation Process" has the
meaning given to such term in Section 6.1.
US-DOCS1103150550.15
1.11. Contested Char e. "Contested Charge" has the meaning given to such term in Section
9.1.5.3.
1.12. Contract Documents. "Contract Documents" includes, but is not limited to: the prime
construction contract(s), prime construction contract(s) exhibits and addenda,
subcontract(s), subcontract(s) exhibits and addenda, and any of the following: notice
inviting bids, instructions to bidders, bid (including documentation accompanying bid and
any post -bid documentation submitted prior to notice of award), the bonds, the general
conditions, permits from City or other agencies, the special provisions, the plans, standard
plans, standard specifications, reference specifications, the Approved Drawings and
Specifications, and all modifications issued after the execution of the subcontract(s), in
each case, in connection with the Project.
1.13. Cutoff Date. "Cutoff Date" means one (1) year from the date of Acceptance of the Project.
1.14. CVMC. "CVMC" has the meaning given to such term in the Recitals.
1.15. DDA. "DDA" has the meaning given to such term in the Recitals.
1.16. DDA Close of Escrow. "DDA Close of Escrow" means Close of Escrow as such term is
defined in the DDA.
1.17. Defective Work. "Defective Work" means all work, material, or equipment that is
unsatisfactory, faulty, incomplete, or does not substantially conform to the Contract
Documents.
1.18. Design and Construction Standards. "Design and Construction Standards" means the
edition of the City -adopted Design and Construction Standards for public works projects
that is in effect when the Approved Drawings and Specifications are approved by the City
for purposes of the bids and which is available in the City's Department of Engineering
and Capital Projects and on the City's website.
1.19. Developer. "Developer" has the meaning given to such term in the preamble.
1.20. Developer's Sewer Improvements. "Developer's Sewer Improvements" has the meaning
given to such teen in the Recitals.
1.21. Director of Development Services. "Director of Development Services" means the
Director of Development Services of City or his or her designee.
1,22. District. "District" has the meaning given to such term in the Recitals.
U5-DOCS11D315p55U.15
1.23- Estimated Cost. "Estimated Cost" means the total cost of the design, development and
construction of the Developer's Sewer Improvements, as estimated by preliminary
engineering studies to total $1,195,000, as shown in Exhibit A attached hereto. As
Estimated Cost is not initially the result of competitive bids for the actual design,
development and construction, it is subject to change during the competitive bid process as
well as during the design and construction phases, subject to approval of the Parties.
1.24. Execution Date. "Execution Date" has the meaning given to such term in the preamble.
1.25. Final Accounting. "Final Accounting" has the meaning given to such term in Section 9.1.7.
1.26. General Contractor. "General Contractor" means a party or parties under any contract with
the Developer to perform the work or provide supplies for the Developer's Sewer
Improvements.
1.27. Greenbook. "Greenbook" means the 2012 edition of the Standard Specifications for Public
Works Construction.
1.28. Ground Lease. "Ground Lease" means that certain San Diego Unified Port District Lease
to RIDA Chula Vista, LLC of Property Located at. Chula Vista, California to be executed
by the Developer and the District pursuant to the DDA.
1.29. Hazardous Materials, "Hazardous Materials" means hazardous waste or hazardous
substances as defined in any federal, state, or local statue, ordinance, rule, or regulation
applicable to the Property, including, without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (Title 42) United States
Code sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 united
States Code sections 6901-6992k), the Carpenter Presley -Tanner Hazardous Substance
Account Act (Health and Safety Code sections 25300-25395.15), and the Hazardous Waste
Control Law (Health and Safety Code sections 25100-25250.25). "Hazardous Materials"
shall also include asbestos or asbestos containing materials, radon gas, and petroleum or
petroleum fractions, whether or not defined as hazardous waste or hazardous substance in
any such statute, ordinance, rule, or regulation.
1.30. Holiday. "Holiday" means the City -observed holidays listed below (if any holiday listed
falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If
the holiday should fall on a Sunday, then the Sunday and the following Monday arc both
legal holidays):
Holiday Observed On
New Year's Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31
US. DOCS1103150550.15
Memorial Day
Independence Day
Labor Day
Veteran's Day
Thanksgiving Day
Thanksgiving Day Friday
Christmas Day
Last Monday in May
July 4
First Monday in September
November 11
Fourth Thursday in November
Friday after Thanksgiving
December 25
1.31. Illegal Discharge. "Illegal Discharge" has the meaning given to such term in Section
14.1.3_
1.32. Maximum Reimbursement Amount. "Maximum Reimbursement Amount" means the
lesser of the Estimated Cost, as may be amended from time to time, or the amount of
Reimbursable Costs that is calculated during the Final Accounting (as defined below).
1.33. Non -Reimbursable Costs. "Non -Reimbursable Costs" means the following costs that shall
not be eligible for reimbursement under this Agreement: Loss During Delivery, Costs
Incurred Due to Negligence, Unapproved Costs, Excess Costs, Non -Project Shared Costs,
and Defective Work Costs each as further defined in Section 9.1.5.2.
1.34. Notice of Completion. "Notice of Completion" means the standard document recorded by
the City upon completion of a public works project in accordance with City's standard and
customary practices.
1,35. Party. "Party" has the meaning given to such term in the preamble.
1.36. Payment Date. "Payment Date" means twenty (20) days following the date on which
Developer submits a complete Reimbursement Request (as reasonably determined by the
Director of Development Services) or a Reimbursement Request that is complete with
respect to a portion of the requested reimbursement (as reasonably determined by the
Director of Development Services).
1,37, Pre -Existing Hazardous Material: "Pre -Existing Hazardous Material" means any
Hazardous Material located on or under the Project Site prior to the Execution Date,
whether known or unknown, or any Hazardous Material located outside the Project site
(including any premises owned by the City) prior to the Execution Date that migrates to
the Project site thereafter.
1.38. Project. "Project" has the meaning given to such tern in the Recitals.
1.39. Project Im rovements. "Project Improvements" or "Improvements" means the
Developer's Sewer Improvements,
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I .44. Project Site. "Project Site" means the location of the Project for purposes of pre -
construction services and construction.
1.41. Reimbursable Costs. "Reimbursable Costs" means costs of the design, development and
construction (including the premium cost of builder's risk insurance ,all other approved
premium insurance costs, and property insurance deductible or self -insured retention (SIR)
costs not -to -exceed SX, Xirnmxi) of the Developer's Sewer Improvements that have been
expended by Developer and approved by the City through approval procedures described
in the Agreement.
1.42. Reimbursement Re nest. "Reimbursement Request" means a reimbursement request
package submitted to the City containing the items listed in Section 9.1.3.1.
1.43. Sewer Facility Contribution. "Sewer Facility Contribution" means the contribution by the
City to fund specific sewer facility improvements comprising part of the RHCC Public
Improvements described in Exhibit A attached hereto and as may be more specifically
described in the Plan of Finance (as defined in the DDA).
1.44. Sewer Income Fund. "Sewer Income Fund" means the fund designated as the "sewer
income fund" with respect to the Developer's Sewer Improvements pursuant to and in
accordance with CVMC Section 3.16.010.
1.45. Sewer Income Fund Eligible Expenses. "Sewer Income Fund Eligible Expenses" means
costs for which the City shall reimburse Developer from the Sewer Income Fund (or an
alternative source of funds identified by the City) for the design, development and
construction (including the cost of builder's risk insurance and all other insurance costs) of
the Developer's Sewer Improvements, not to exceed the Estimated Costs.
1.46. Sole Source Process. "Sole Source Process" has the meaning given to such tenn in Section
6.1.
1.47. Standard Specifications. "Standard Specifications" means the Greenbook, the local
standard special provisions referenced in the Approved Drawings and Specifications, and
any amendments thereto that are approved by the City.
1.48. Subcontractor. "Subcontractor" means a party or parties under any subcontract with the
General Contractor to perform the work or provide supplies for the Developer's Sewer
Improvements.
1.49- SWPPP. "SWPPP" has the meaning given to such term in Section 8.1.3.
1.50. Working Dav(s]. "Working Day(s)" means Monday through Friday, excluding Holidays,
U5-DOC51103150550.15
ARTICLE II. SUBJECT OF THE AGREEMENT - GENERALLY
The above -listed Recitals are true and correct and are incorporated by this reference. All
attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.
2.1. Developer's Sewer Improvements. Except as expressly provided in this Agreement.
Developer shall cause the design and development of the Project Improvements in
accordance with the Schematic Plans (as defined in the DDA) for the development of Phase
IA Infrastructure Improvements (as defined in the DDA) that the District shall submit to
Developer pursuant to Section 4.4(b) of the DDA, and Developer shall cause the Project
Improvements to be constructed so that the Project Improvements are in accordance with
the applicable Contract Documents within the timeframe described in Section 5.1, in each
case, in accordance with all the terms and conditions of this Agreement and for the
Maximum Reimbursement Amount; provided, however, that the Developer shall have no
obligation to develop or construct any of the Project Improvements unless and until DDA
Close of Escrow occurs in accordance with the DDA.
2.2. Complete and Functional Improvements. Developer shall provide complete and functional
Developer's Sewer Improvements that meet the Contract Documents and all other
applicable standards identified herein.
23. Maintain Until Acceptance. Following the completion of the Project improvements,
Developer shall maintain the Project Improvements until the Acceptance.
2.4. City Payment. City shall reimburse Developer, in an amount not to exceed the Maximum
Reimbursement Amount and subject to the terms and conditions herein, for the Sewer
Income Fund Eligible Expenses of design, development, and construction of Developer's
Sewer Improvements. City acknowledges and agrees that all of the Estimated Costs
identified in Exhibit A are Sewer Income Fund Eligible Expenses. The City represents and
warrants to Developer that, as of the Execution Date, the aggregate amount of funds on
deposit in the Sewer Income Fund is equal to or greater than the Maximum Reimbursement
Amount and that the City will use its reasonable efforts to manage the Sewer Income Fund
in a manner so that the aggregate amount of funds on deposit in the Sewer Income Fund
during the term of this Agreement is sufficient to pay all Reimbursable Costs in accordance
with this Agreement. To the extent that the amount of funds in the Sewer Income Fund are
insufficient to pay all Reimbursable Costs, City shall identify alternative funds from which
to pay City's Sewer Facility Contribution obligation pursuant to the DDA.
ARTICLE III. DURATION OF AGREEMENT
3.1. Term of Agreement. This Agreement shall become effective on the Execution Date, and
the term of this Agreement shall extend until the earlier of (i) such time as all executory
US-OOCS\1U3150S50.15
terms have been completed or (ii) earlier termination of this Agreement according to the
termination provisions herein.
ARTICLE I.V. PROJECT COSTS
4.1. Estimated Cost. The Estimated Cost is one million dollars ($1,195,000), as shown in
Exhibit A attached hereto.
4-2. Adjustment to Estimated Cost. Estimated Cost is subject to change by the methods
identified below and those established elsewhere in this Agreement.
4.2.1. Revisions to the Estimated Cost. The City Manager or his/her designee shall review
complete sets of the drawings and specifications for the Developer's Sewer
Improvements promptly after Developer provides them to the City. In the event
that the City Manager or designee reviews the drawings and specifications for the
Developer's Sewer Improvements and determines that the cost of design,
development, and construction will exceed the then current Estimated Cost, the
Estimated Cost shall be increased to reflect the revised estimate in accordance with
subsection 4.2.2.
4.2.2, Adjustments Based on Other Cost Increases. The Estimated Cost may be increased
due to: (i) acts of God, acts of any governmental authority, the elements, war,
litigation, shortages of material, labor strikes, inflation, later commonly accepted
or adopted higher standards and specifications of construction, concealed or
unknown conditions encountered in the completion of Developer's Sewer
Improvements, or other cause beyond Developer's control; (ii) actual bids received
being greater than estimated; (iii) other factors not the result of unreasonable
conduct by Developer; or (iv) the presence of any Hazardous Material on the
Project Site (as defined in the DDA). Subject to the prior written approval by the
City Manager or his/her designee, which approval shall not be unreasonably
withheld, conditioned, or delayed, the Estimated Cost shall be increased by the
amount of the increase in the cost of the design, development, and construction of
the Developer's Sewer Improvements that are determined by the City Manager or
his/her designee (in such person's reasonable, good faith discretion) to be caused
by such events or circumstances.
4.2.3. Failure to Obtain Approval of Increase. In any case where City Manager's
approval is required for an increase in the Estimated Cost and such approval is not
obtained, Developer shall have no obligation to incur costs in excess of the
Estimated Cost, City Manager shall not unreasonably withhold, condition or delay
its approval of any deductive change to the Project Improvements such that the
Project Improvements, as revised, can be completed for the Estimated Cost.
US-UOCS1103154550.15
4.3. Notification of Increased Costs. If, at any time, Developer definitively establishes that the
amount expended on the Project Improvements will exceed the Estimated Cost, Developer
shall promptly, and in any case not more than ten (10) Working Days after the Developer
definitively establishes the amount of the increase, notify the City thereof in writing. This
written notification shall include an itemized cost estimate and a list of recommended
revisions (e.g., deductive changes) which Developer believes will bring the cost to within
the Estimated Costs. The City may either: (i) approve an increase in Estimated Cost (which
approval shall not be unreasonably withheld, conditioned, or delayed) or (ii) reasonably
delineate a project which may be constructed for the Estimated Cost; provided that such
delineation does not have a material and adverse effect on the design, development, or
construction of the Developer's Private Improvements (as defined in the DDA) or the
Convention Center (as defined in the DDA); or (iii) any combination of (i) and (ii).
ARTICLE V. PROJECT SCHEDULE
5.1. Project Schedule. Developer shall complete the Project Improvements by sixty (60)
months and ten (10) days after the commencement date of the Ground Lease (such
deadline to be extended by one day for each day the applicable deadline is extended
pursuant to and in accordance with the Ground Lease, including pursuant to any
amendment to the Ground Lease). No delay in the completion of the Project
Improvements shall excuse any failure by Developer to timely complete the Resort Hotel
and the Convention Center (as each such term is defined in the Ground Lease) in
accordance with the Ground Lease, except as set forth in the Ground Lease.
5.2. Unavoidable Delay, Each Party shall be entitled to an extension of the date of the
performance of any obligation required of such Party under this Agreement in the same
manner and to the same extent as provided in the Ground Lease.
ARTICLE VI. COMPETITIVE BIDDING AND EQUAL OPPORTUNITY
6.1. Compliance. Developer shall bid and award contracts and subcontracts to complete Project
in accordance with all applicable public contract laws, rules, and regulations, including but
not limited to those set forth in the City of Chula Vista Charter and Municipal Code,
including CVMC §2.56.160(H) (Developer -Performed Public Works). Notwithstanding
anything to the contrary herein, the Parties agree that the Developer may (a) subject to
CVMC §2.56.160(H)(1)(b) (Developer -Performed Public Works), award the prime
contract for the Project to the General Contractor on a sole source basis pursuant to and in
accordance with CVMC §2.56.160(H)(l)(b) ("Sole Source Process") or, (b) subject to
CVMC §2.56.160(11) (Developer -Performed Public Works), award the prime contract for
the Project to the General Contractor by competitive bid or solicitation in accordance with
CVMC §2.56.160(1-1)(2)(d) (Developer -Performed Public Works) ("Competitive Bid or
Solicitation Process"), The Parties further agree that, in the case of the Sole Source
U5-DOC5\103150550.15
Process, the General Contractor for the Project shall award subcontracts for the Project to
Subcontractors by competitive bid or solicitation in accordance with CVMC
§2.56.160(H)(2)(d) (Developer -Performed Public Works) ("Competitive Bid or
Solicitation Process").
6.1.1. Proof of Advertising. In the case of any Competitive Bid or Solicitation Process,
Developer shall provide the City with proof that the Developer or the General
Contractor, as applicable, solicited competitive bids from the General Contractor
and/or Subcontractors, as applicable, in accordance with. CVMC
§2.56.I60(H)(2)(c) (Developer -Performed Public Works).
6.1.2. Prevailing Wage. Developer shall advertise the Project as requiring the payment
of prevailing wage and include all provisions in the advertisement and Contract
Documents as required by the California Department of Industrial Relations.
6.2. Bid Opening and Award- In the case of any Competitive Bid or Solicitation Process,
Developer shall provide City with a copy of the tabulation of competitive bid results with
respect to each contract and subcontract, as applicable. In the event that the best qualified
General Contractor's bid or Subcontractor's bid, as applicable, combined with a reasonable
amount for contingencies, exceeds the Estimated Cost, the increase in the costs may be
approved by the City Manager pursuant to Section 4.2.2 prior to awarding the prime
contract or the subcontract, as applicable. In the event the City Manager does not approve
the increased cost, this Agreement, at the City's option but subject to the next sentence,
may be terminated upon prior written notice thereof to Developer of not less than twenty
(20) days and the Project may be rebid and/or redesigned. If the City notifies Developer
that it intends to exercise the termination option, then Developer shall have the right to pay
the amount in excess of the Estimated Cost ("Excess Cost"), in which case the City shall
no longer have the right to terminate this Agreement. Developer acknowledges and agrees
that payment of any Excess Cost shall not be a Reimbursable Cost under this Agreement.
In the event that the Agreement is terminated pursuant to this Section 6.2, the Developer's
design, development, and/or construction costs will be reimbursed to Developer from the
Sewer Income Fund for the actual Reimbursable Costs expended by Developer prior to
termination of this Agreement. Developer shall provide City with copies of all executed
contracts awarded in accordance with this Section 6.2.
6.3. Equal_ Employment Opportunities and Equal Olaportunity Contracting,
6.3.1. Equal Employment Opportunity Nondiscrimination, Developer shall not
discriminate against any employee or applicant for employment on any basis
prohibited by law. Developer shall provide equal opportunity in all employment
practices. Developer shall instruct its consultants, subeonsultant5, General
Contractor, and Subcontractors, to comply with this provision. Nothing in this
US- DOCSI103150550.15
subsection 6.3.1 shall be interpreted to hold Developer liable for any discriminatory
practice of its General Contractor, Subcontractors or any other party.
6.3.2. Equal Employment Opportunity Certification. Developer shall require all bidders
to submit signed equal employment opportunity certifications', on thrms approved
by the City, with their bid packages.
6.3.3. Equal Opportunity Coutracting Nondiscrimination. Developer shall not
discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual
orientation, age, or disability in the solicitation, selection, hiring, or treatment of
bidders, the General Contractor, Subcontractors, vendors, or suppliers. Developer
shall provide equal opportunity for bidders, contractors, the General Contractor,
and Subcontractors to participate in contracting and subcontracting opportunities.
Deg eloper understands and agrees that violation of this subsection 6.3.3 shall be
considered a material breach of this Agreement and may result in termination of
this Agreement, debarment, or other sanctions. The language in this subsection
6.3.3 shall be inserted in contracts between Developer, the General Contractor, any
Subcontractors, vendors, and suppliers awarded in accordance with Section 6.2.
ARTICLE VII. DESIGN AND CONSTRUCTION STANDARDS
7.1. Standard of Care. Developer agrees that it will require that the services provided as part
of this Agreement be performed in accordance with the standards customarily adhered to
by experienced and competent professional architectural, engineering, landscape
architecture, and construction firms (as applicable) using the degree of care and skill
ordinarily exercised by reputable professionals practicing in the same field of service in the
State of California.
7.1.1. Compliance with all Lays_ Developer shall comply, and require compliance by
any of its General Contractor, Subcontractors, employees, and agents, with all laws,
including but not limited to all local, City, San Diego County, State of California,
and federal laws, codes and regulations, ordinances and written publicly available
policies, including, but not limited to, Development Services Department permits,
hazardous material permits, site safety, state and local building codes, stornlwater
regulations, etc.
7.2. Compliance with Design and Construction Standards. Developer shall comply, and require
compliance by any of its General Contractor, Subcontractors, employees, and agents, with
the Design and Construction Standards.
' NTD: City to provide standard certifications for Developer's review.
U5-DOcs110315%50.15
7,2.1. Standard Specifications. Developer shall comply, and require compliance by any
of its General Contractor, Subcontractors, employees, and agents, with the editions
of the following reference specifications that are in effect as of the date of the
approval of the Approved Drawings and Specifications for purposes of the bids
when designing, developing„ and constructing the Project: the Greenbook and the
regional and any local supplement amendments thereto that are listed on Exhibit B
attached hereto.
7.2.1.1.City Standards. Developer's professional services shall be provided in
conformance with the professional standards of practice established by City. This
includes amendments and revisions of these standards as adopted by City. The
professional standards of practice established by City include the Standard
Specifications and the Approved Drawings and Specifications.
7.3. Changes to Standards. Developer shall not be required to comply, nor to cause any of its
General Contractor, Subcontractors, employees, and agents to comply, with any design
standard or any construction standard or any amendment, update, supplement or other
modification to the Design and Construction Standards after the date of the approval of
the Approved Drawings and Specifications for purposes of the bids,
7.4. City Approval Not a Waiver of Obligations. Where approval by the City, the City
Manager, or other representatives of City is required, it is understood to be general approval
only and does not relieve Developer of responsibility for complying with all applicable
laws, codes, and good consulting, design, or construction practices and is not an assumption
of liability by the City, except in the case of City's express waiver of the requirement to
comply with (a) any City requirement, to the extent such requirement is waivable, or (b)
any good consulting, design, or construction practice. Nor shall City, through approval,
become an insurer or surety of work associated with the approvals.
ARTICLE VIII. CONSTRUCTION
8.1. Site Safety. Security, and Compliance. Developer shall be responsible for Project Site
safety, security, and compliance with all related laws and regulations.
8.1.1. Persons. As between the Developer and the City, and without expanding the
Developer's contractual obligations or duties to any person other than the City, the
Developer shall be fully responsible for the safety and security of its officers,
agents, and employees authorized by Developer to access the Project Site,
8.1.2. Other. Developer is responsible for Project Site, materials, equipment, and all other
incidentals on the Project Site until the completed Project has been accepted by the
City pursuant to Article X.
Us-DOcs\103150S50.15
8. 1.3. Environment. Developer shall comply with all environmental laws and regulations,
including the Clean Air Act of 1 970, the Clean Water Act, Executive Order number
1 1738, and the Stormwater Management and Discharge Control Ordinance No. 0-
17988 and any and all Best Management Practice ("BMP") guidelines and pollution
elimination requirements as may be established by an enforcement official.
Furthermore, Developer shall prepare and incorporate into the drawings and
specifications a Stormwater Pollution Prevention Plan ("SWPPP") to be
implemented by Developer during Project construction and, until Acceptance,
maintenance. Where applicable, the SWPPP shall comply with both the California
Regional Water Quality Control Board Statewide General Construction Storm
Water permit and National Pollution Discharge Elimination System permit
requirements and shall be in conformance with the City ofChula Vista BMP Design
Manual and CVMC Chapter 14.20 (Storm Water Management and Discharge
Control).
8.1.4. Access to Project Site. City officers, agents, and employees that have Project -
related business shall have the right to enter the Project Site at any time for Project
related purposes; provided that such person complies with all written applicable
security and safety procedures provided by Developer to City, written instructions
given by Developer to City and oral instructions given by Developer or the General
Contractor to such person on the Project Site, and uses commercially reasonable
efforts to minimize any interference with Developer's operation and use of the
Project Site while on the Project Site.
8.2. Public Right -of -Way. All work, including materials testing, special testing, and surveying
to be conducted in the public right-of-way shall be coordinated with the City.
8.2.1. Follow all Laws, Rules, and Regulations. Developer agrees to follow all Federal
and State laws and regulations, and all written and publicly available City standards
and regulations while working in the public right-of-way, including, but not limited
to, utilizing proper traffic control and obtaining necessary permits.
8.3. Traffic Control. Developer shall comply with all written traffic control requirements for
Project, including, if applicable, all traffic control plans and/or notes,
8.4. Maintenance. Developer shall maintain and be responsible for the Project and the Project
Site until Acceptance, including ongoing erosion prevention measures. Upon Acceptance,
City shall be responsible for maintenance of the Project.
ARTICLE IX. REIMBURSEMENTIPAYMENT OF COSTS AND EXPENSES
9.1. Payment of Costs Associated with Project
U S- DOCS\103154556.1 S
9.1.1. Maximum Reimbursement Amount. The maximum amount of reimbursement for
Project shall not exceed the Maximum Reimbursement Amount. Neither
Developer nor the General Contractor nor any Subcontractor, nor any combination
thereof, shall be entitled to payment in excess of the Maximum Reimbursement
Amount.
9.1.2. Funds for Payment of GostslExpenses. The source of funds for the payment of
costs/expenses associated with Project shall be limited to that listed below. No
other City funds, or monies held by, owed to, or in trust for, the City, shall be used
by the City or sought to be collected by Developer, its employees, agents, the
General Contractor, or Subcontractors other than those identified in Section 9.1.2.1 -
9.1.2.1. Funds for Project. Funds for payment of costs/expenses for Project shall
be limited to the City's Sewer Facility Contribution.
9.1.3. Prerequisites to Payment,
9.1.3.1. Reimbursement Request. Prior to reimbursement of any costs or expenses
for the Project, Developer shall provide the City with a Reimbursement
Request containing the following:
a, Invoices. Developer shall provide the Director of Development
Services all invoices for Reimbursable Costs associated with
Project, not previously paid by the City, within 30 days after receipt
thereof.
b. Proof of Payment. Developer shall provide the Director of
Development Services with proof of payment of all invoices for
Reimbursable Costs submitted within 30 days after such payment.
c. Lien Releases/Stop Payment Notices. Developer shall provide the
Director of Development Services with statutory lien/stop payment
notice releases associated with all work performed or supplies
provided in a form satisfactory to the City Attorney.
d. Certification of Payment. Developer shall provide the Director of
Development Services with a written certification that all trade and
soft costs for which Developer is seeking reimbursement have been
paid.
e. Certification of Prevailing Wage Compliance. Developer shall
provide the Director of Development Services with a written
US-ooCs\r 03150550.15
certification oFcompliancewith all applicable Prevailing Wage laws
and regulations.
f Acknowledgement of General Contractor and Subcontractors.
Developer shall provide the Director of Development Services with
a letter from each firm (e.g. civil, survey, and geotechnical)
acknowledging that eligible soft costs included in the relevant
invoices have been paid.
g. Time sheets. Developer shall provide the Director of Development
Services with time sheets from Developer's construction manager
to justify the Project management costs.
h. Graphics. Developer shall provide the Director of Development
Services with a graphic depicting the areas within the Project for
which the Reimbursement Request is being submitted.
Other Documents. Developer shall provide the Director of
Development Services with any other documents that reasonably
may be needed to evaluate the eligibility of the costlexpcnse as
Reimbursable Costs as determined necessary by the Director of
Development Services in his/her sole discretion.
City shall not have an obligation to make payment to Developer unless
and until Developer provides the Director of Development Services with
a Reimbursement Request containing all of the applicable items listed
above and such Reimbursement Request is approved by the Director of
Development Services as provided below.
9.1.3.2. Inspection. The Project shall be subject to City inspection as provided in
section 2-11 of the Greenbook. Developer shall ensure that all persons
and entities providing work or services for the Project comply with the
inspection requirements provided in section 2-11 of the Greenbook.
9.1.3.3. Prevailing Wage Compliance. Developer shall ensure that all persons and
entities providing work or services for the Project comply with Prevailing
Wage requirements, as established by the California Department of
Industrial Relations, as applicable, in accordance with applicable law.
9.1.3.4. City Approval. The Director of Development Services shall review each
Reimbursement Request and the supporting documentation. If the
Director of Development Services finds that any such Reimbursement
us-DOCS\103150550,15
Request is incomplete, improper, or otherwise not suitable for
reimbursement, then the Director of Development Services shall so
inform Developer in writing within fifteen. (15) Working Days after
receipt thereof, of the reasons for his/her finding. If the Director of
Development does not find that any such Reimbursement Request is
incomplete, improper, or otherwise not suitable for reimbursement, then
the Director of Development Services shall so inform Developer in
writing within fifteen (15) Working Days after receipt thereof and within
that time period approve the Reimbursement Request. Developer shall
have the right to respond to such finding by submitting further
documentation requested in such finding after receipt of said finding. The
Director of Development Services shall review any further documentation
received from Developer in support of the Reimbursement Request and
inf'orin Developer of his/her approval or denial of the Reimbursement
Request within ten (10) Working Days after receipt of such further
documentation. If the Director of Development Services determines that
the Reimbursement Request is incomplete, but that sufficient and
complete information exists with respect to a portion of the
Reimbursement Request, then the Director of Development Services may
but is not obligated to approve the Reimbursement Request with respect
to such portion of the Reimbursement Request. The City shall cause the
Director of Development Services to carry out its duties under this Section
9.1.3.3 in a reasonable and good faith manner.
9.1.4. Time of Payment. After Developer has obtained City's approval pursuant to 9.1.3,
City shall reimburse Developer for the approved costs/expenses associated with
each Reimbursement Request by the Payment Date, If the Payment Date falls on a
weekend or holiday, the Payment Date shall be extended to the next Working Day.
9.1.4.I. Additional Costs. Any costs that may accrue, such as interest on late
payments to Developer's General Contractors. Subcontractors, or
suppliers as a result of the Developer's failure to provide a complete
Reimbursement Request, shall not be the obligation of the City if the City
has not received a complete Reimbursement Request. Such additional
costs shall be the obligation of the Developer and not eligible for
reimbursement.
9.1.5. Reirnbutse►}rent Amouni per Reimbursement Request. The City shall pay Developer
approved amounts in the Reimbursement Request, less any Non -Reimbursable
Costs and Contested Charges (as defined below) on or before the Payment Date. If'
the Payment Date falls on a weekend or holiday, the Payment Date shall be
It S - D 00511031505 50.15
extended to the next Working Day. Additional costs that result from the City's
failure to make payments when required by this Agreement will be the obligation
of the City.
9.1.5.1. Withholding. The prime contract and subcontracts for the Project may
provide for withholding from each payment to the General Contractor or
the Subcontractor, as applicable, until Acceptance. Except as otherwise
provided in this Agreement or at law, the City shall not withhold any
additional amounts from the Reimbursement Requests submitted by
Developer, beyond the actual General Contractor or Subcontractor
withholding amount.
a. Payment and Invoicing for Withholding. Developer shall not pay
the General Contractor and the Subcontractors the amounts withheld
until (1) forty-five (45) calendar days from recordation of the Notice
of Completion and (2) confirmation has been submitted to the
Director of Development Services by Developer that no stop
payment notices or mechanic's liens have been filed and not
released with respect to the Project and the following work has been
completed:
i. All Project improvements have been installed.
ii. As-builts have been submitted to the City.
iii. Form PWEIOb is completed.
iv. The final punch list is complete.
Where a stop payment notice or mechanic's lien has been filed following
the recordation of the Notice of Completion, Developer shall continue to
withhold the amount in controversy until a fully executed release of stop
payment notice or mechanic's lien or a bond releasing the stop payment
notice or mechanic's lien has been filed and a conformed copy delivered
to the City. Notwithstanding anything in this Agreement to the contrary,
Developer shall not be required to withhold any funds from the General
Contractor or any Subcontractor to the extent doing so would violate any
applicable law.
9.1.5.2, Non -Reimbursable Costs. iMMz]Thc following costs/expenses shall not be
eligible for reimbursement under this Agreement.
a. Costs Incurred Due to Negligence. Developer shall not be entitled
to payment for any incremental cost or expense incurred due to
negligent acts, negligent omissions, or willful misconduct of
(JS- OOCS\103150550.15
Developer, the General Contractor, or Subcontractors, or any of
their respective subcontractors, material suppliers, equipment
providers, employees, or agents.
b. Unapproved Costs. Developer shall not be entitled to
reimbursement for any cost or expense that has not been approved
by the City pursuant to Section 9.1.3.3.
C. Excess Costs. Developer acknowledges and agrees that any Excess
Cost (as defined in section 6.2 of this Agreement) shall not be a
Reimbursable Cost.
d. Non -Project Shared Costs. The parties acknowledge that Developer
may share certain costs (e.g. mobilization, traffic control) for the
Project with other projects contemplated under the DDA. Developer
acknowledges and agrees that any shared project costs that are not
directly attributable to or reasonably apportioned to the Project, as
reasonably determined by the City, shall not be a Reimbursable
Cost.
e. Defective Work Costs. Developer acknowledges and agrees that
defective work costs as provided in Section 12.3 of this Agreement
shall not be a Reimbursable Cost.
9.1.5.3. Contested Charges. In the event that the City contests any costs/expenses
oil an invoice received ("Contested Charge"), the City shall provide
Developer a written statement of the Contested Charges, the reason why
the costs/expenses are contested, and a proposed resolution.
a. Appeal to City Manager. Developer may appeal the City's
determination of any Contested Charges. The appeal must be
received within 30 days after the City notifies the Developer of such
Contested Charge. During the appeal period, and as long as any
Contested Charge remains disputed, Developer shall proceed with
the Project, and the City shall compensate Developer for the
undisputed amounts, If, following the appeal, the City Manager
determines that any Contested Charges are eligible for
reimbursement, such amounts shall be included in the next payment
to Developer.
9.1.6. Gutoffor Submission of Invoices. Developer shall submit its final Reimbursement
Request not later than the Cutoff Date. Any Reimbursement Requests submitted
US • 00051103 ].50550.15
after the Cutoff Date shall not be reviewed or included in Reimbursable Cost. The
final payment by the City for the Project will be made only after Developer has
submitted all documentation reasonably necessary to substantiate the cost of
construction and completing the Improvements associated with that phase,
mechanic's lien free, stop payment notice free, in accordance with the Contract
Documents. Final inspection and sign -oil by the City's inspectors with associated
mechanic's lien and stop payment notice releases (or bonds releasing contested
mechanic's liens or stop payment notices) shall be sufficient evidence of the
mechanic's lien or stop payment notice free completion of the Improvements.
9.1.7. Final Accounting. Following completion of the Project, Developer shall submit a
final accounting ("Final Accounting") to the City in order to determine the cost of
design, development, construction, and related work thereto to complete the
improvements. Developer shall also submit all supporting information reasonably
necessary to document costs/expenses for the Improvements, including specific
details on the costs and work attributable to the Improvements, including, as
applicable, third -party invoices, billings, and receipts for construction surveying,
soil testing, blue printing, actual construction costs, and similar expenses.
9.1.7.1. True -up Payments. Within 30 Working Days following a Final
Accounting, the City shall determine whether the actual payments made
to Developer equal the audited approved costs and expenses. In the event
that the amount of the approved costs and expenses exceeds the amount
of the actual payments, the City shall make a true -up payment to
Developer for the difference; however, in no event, shall the true -up
payment cause the total amount paid to exceed the Maximum
Reimbursement Amount. If the Final Accounting shows that the amount
of actual payments to Developer exceeds the amount of the approved costs
and expenses, Developer shall remit or cause the remittance of the
difference to the City within twenty (20) Working Days of a notice of
deficiency.
ARTICLE X. PROJECT ACCEPTANCE AND FINAL COMPLETION
10.1. No Waiver. Developer shall cause the work to be performed and completed in accordance
with the Contract Documents, as reasonably determined by the City Engineer and the
Director of Development Services. Neither recommendation of any progress payment or
acceptance of work, nor any payment by City to Developer under this Agreement, nor any
use or occupancy of the Improvements or any part thereof by the City, nor any act of
acceptance by the City, nor any failure to act, nor any review of a shop drawing or sample
US- DOGS\ 10315055D.15
submittal, will constitute an acceptance of work, which is not substantially in accordance
with the Contract Documents.
ARTICLE XI. WARRANTIES
11.1. Enforcement of Warranties. Developer shall enforce for the City's benefit all warranties
provided in the Contract Documents and any other implicit or explicit warranties or
guarantees required or implied by law.
11.1.1. Materials and WYor/cnwnship. Developer shall require the General Contractor and
Subcontractor(s) to guarantee all work on the Project against Defective Work for a
period of one (1) year from the date of Acceptance.
11.1.2. New Materials and Equipment. Developer shall require the General Contractor and
Subcontractor(s) to warrant and guarantee to City that all materials and equipment
incorporated into the Project are new unless otherwise specified.
11.1.3. Design, Construction, and Other Defects. Developer shall require the General
Contractor and Subcontractor(s) to warrant and guarantee to City that all work is in
accordance with the Contract Documents and is not Defective Work in any way in
design, construction, or otherwise.
11.2. Term of Warranties. Unless otherwise specified or provided by law, warranties shall
extend for a term of one (1) year from the date of Acceptance.
ARTICLE XII. DEFECTIVE WORK
12.1. Correction Reinoval or Replacement. The Developer shall require that if, within the
designated warranty period, or such additional period as may be required by law or
regulation, the City determines the Project contains Defective Work, the General
Contractor or applicable Subcontractor, as applicable, shall promptly and in accordance
with the City's written instructions and within the reasonable time limits stated therein,
either correct, repair, or both remove and replace the Defective Work.
12.2. City's Right to Correct. If circumstances warrant, including but not limited to an
emergency or the Developer's failure, the General Contractor's failure, or such
Subcontractor's failure, as applicable, to adhere to Section 12.1, City may correct, remove,
or replace the Defective Work. In such circumstances, the Developer, the General
Contractor, and such Subcontractor(s), as applicable, shall not recover costs associated
with the Defective Work.
12.3. Non -Reimbursable Costs. Any costs incurred by Developer, the General Contractor,
Subcontractors or its agents to remedy defects are Non -Reimbursable Costs, unless the
US-DOCS\1a315055a.1S
Contract Documents require the Developer to reimburse for such costs. Notwithstanding
the foregoing, for the avoidance of doubt, the parties acknowledge and agree that the
following shall constitute Non -Reimbursable Costs: (i) costs to remedy defects due to the
negligence of the General Contractor, Sub contractors, or their agents; (ii) costs to remedy
defects due to the failure of General Contractor, Subcontractors, or their agents to comply
with the Contract Documents to the extent such costs exceed the guaranteed maximum
price contained in the Contract Documents, or (iii) costs to remedy defects where such
costs have been recovered fi-om an alternate source (e.g. insurance or bond). If the City
has already reimbursed Developer, the General Contractor, Subcontractors or its agents, as
applicable, for the Defective Work, City is entitled to an appropriate decrease in
Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against
Developer's bond, if Developer, the General Contractor, Subcontractors or agents, as
applicable, have been paid in full, until the Defective Work is remedied unless the Contract
Documents require the Developer to reimburse for such costs.
12.4, Extension of Wan -ant . When Defective Work, or damage therefrom, has been corrected,
repaired, replaced or removed, as applicable, during the warranty period, the one (1) year
or another relevant warranty period, as applicable, will be extended for an additional time
period equal to that of the initial warranty period, from the date of the satisfactory
completion of the correction, repair, replacement or removal, as applicable, but, in no
event, beyond one (1) year from the date of the expiration of the initial warranty period.
12.5. No Limitation on Other Remedies. Exercise of the remedies for Defective Work pursuant
to this Article XII shall not limit the remedies City may pursue under this Agreement or at
law.
12.6. Disputes. If Developer and City are unable to reach agreement on disputed work, City may
direct Developer to proceed with the work and compensate Developer for undisputed
amounts. Payment of disputed amounts shall be as later determined in accordance with
9.1.5.3. Developer shall maintain and keep all records relating to disputed work for a
period of three (3) years in accordance with Article X1V.
ARTICLE XIII. SECURITY FOR CONSTRUCTION
13, 1 - Bond. The Contract Documents shall require the General Contractor or Subcontractors to
provide a payment bond and a performance bond, on forms acceptable to the City, for the
construction of the Project in an amount of no less than the Estimated Cost. Developer
shall cause the City to be named as a co -obligee of the payment bond and performance
bond. Developer shall deliver copies of the payment bond and performance bond to City
prior to commencement of construction for the Project. Developer shall ensure the
payment bond and performance bond are maintained until such time as the Project is
complete and Accepted by the City.
US-DOCS`103150550.15
13,2. Insolvency orBankruptcy. If the surety on any of the above -mentioned bonds 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, Developer shall within five (5) Working Days after the
City notifies the Developer thereof substitute or require the substitution of another bond
and surety, reasonably acceptable to the City.
13.3. Calling tnd. Developer acknowledges and agrees that if Developer's construction of
the Improvements has not been completed in accordance with Section 5.1, has not been
performed in accordance with the Contract Documents, or if the Developer has failed to
cure any Defective Work within the commercially reasonable time specified in a written
notice of defect, the City may use the security referenced in Section 13.1 above to complete
the Improvements. This remedy is not a limitation on remedies of the City and is in
addition to any other remedy that the City may have at law or in equity.
ARTICLE XIV. INDEMNITY AND DUTY TO DEFEND
14.1. Defense, Indemnity, and Hold I-iarmless.
14.1.1. General Requirement. (a) Developer shall defend, Indemnify, protect, and hold
harmless (collectively, "indemnify") the City, its elected and appointed officers,
agents and employees (collectively, the "Indemnified Parties"), from and against
any and all claims, demands, causes of action, costs, expenses, liabilities, loss,
damages, and injuries (collectively, "Loss"), in law or equity, to property, including
takings claims, or persons, including wrongful death, to the extent and proportion
directly or indirectly caused by any negligent acts or negligent omissions, or
negligence or willful misconduct of Developer, its officials, officers, the General
Contractor, Subcontractor(s), agents, or employees arising out of or in connection
with the performance of the Project or this Agreement; provided, however,
Developer shall have no obligation to Indemnify the Indemnified Parties for any
Loss that arises out of any design or other defect in connection with the Project
more than en (10) years after Acceptance. {MM31
(b) This indemnity provision does not include any claims, damages, liability, costs
and expenses (including without limitations, attorneys' fees) arising from the sole
negligence, active negligence or willful misconduct of the City, its officials,
officers, agents or employees.
(c) Also covered by this provision is liability arising from, connected with, caused
by, or claimed to be caused by the active or passive negligent acts or negligent
omissions of the City, its agents, officers, officials or employees which may be in
combination with, and to the extent and proportion caused by, the active or passive
US- DOCS\1O3150550.15
negligent acts or negligent omissions of Developer or its officials, officers, the
General Contractor, Subcontractor(s), agents, or employees.
14.1.1.1. Damage to Downstream or Adjacent Properties. 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 and to the extent of and
proportion caused by the negligence by Developer, its officials, officers,
the General Contractor, Subcontractor(s), agents, or employees in the
construction of the Improvements in accordance with the Contract
Documents 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 and to the extent of and proportion
caused by the negligence by Developer, its officials, officers, the General
Contractor, Subcontractor(s), agents, or employees in the construction of
the Improvements in accordance with the Contract Documents.
14.1.2. Hazardous Materials. (a) Developer agrees to defend, indemnify, and hold
harmless, the City, its agents, officers and employees from and against any and all
costs, damages, claims, and liabilities, including reasonable attorney fees,
foreseeable or unforeseeable, directly or indirectly, arising from or related to the
release of Hazardous Materials by Developer, its officials, officers, the General
Contractor, Subcontractor(s), contractors, agents, or employees in association with
the construction, maintenance, or repair of the Project, or any act taken or omission
under the Agreement.
(b) Notwithstanding the foregoing, Developer shall have no obligation to
Indemnify any Indemnified Party for any Loss related to any Pre -Existing
Hazardous Material except to the extent Developer, any of its officials, officers, the
General Contractor, Subcontractor(s), contractors, agents, or employees, or any
combination thereof, is negligent in releasing, allowing a release, or causing a
release of such Pre -Existing Hazardous Material. Developer expressly preserves
its rights against other parties and does not release or waive its rights to contribution
against any other party.
14.1.3. Illegal Discharge to Storm Drains. Developer shall defend, indemnify, protect, and
hold harmless City, its agents, officers, and employees, from and against all claims
asserted, or liability established for damages or injuries to any person or property
resulting from a discharge to public storm drains in violation of applicable laws to
the extent arising out of the construction of the Improvements (an "Illegal
Us-oocs\1O315055O15
Discharge") caused by any action or failure of Developer, its officials, officers, the
General Contractor, Subcontractor(s), agents, or employees to take reasonable
measures to prevent an Illegal Discharge or any Illegal Discharge by any such
persons or entities. Developer shall also be responsible for payment of any fines or
penalties assessed against City for an Illegal Discharge. Developer's duty to
indemnify and hold hannless shall not include any claims or liability arising from
the established sole negligence or willful misconduct of City, its officials, officers,
agents or employees.
14.1.4. Costs ref Defense and Award. Developer shall immediately accept all tenders and
defend, at Developer's own cost, expense and risk, any and all claims, demands,
suits, actions, or other legal or administrative proceedings that may be brought or
instituted against the City, its officials, officers, employees and/or agents and that
appear to be covered by the defense obligation defined in Section 14.1.1(a),
14.1.1(c), 14.1.1.1, 14.1.2(a), or 14.1.3. Developer acknowledges and agrees that
its obligation to accept tender and defend the City, its officials, officers, employees,
and/or agents as provided in this Section 14.1.4 is absolute and not subject to any
limitations in Sections 14.1.1(b) and 14.1.2(b) of this Agreement, or elsewhere.
Developer shall pay and satisfy any judgement, award, or decree that may be
rendered against City or its officials, officers, employees and/or agents, for any and
all related legal expense and costs incurred by each of them to the extent of
Developer's actual determined negligence, subject to the limitations in Sections
14.1.1 and 14.1.2 and only to the extent Section 14.1.1 or 14.1.2 requires Developer
to do so. The City may, in its reasonable discretion, participate in the defense of
any and all suits, actions, or other legal proceedings that may be brought or
instituted against the City, its officials, officers, employees and/or agents, and the
Developer shall have the obligation to reimburse the City for any costs of defense
incurred by the City, including, without limitation, reimbursement for attorneys'
fees, experts' fees and other costs. Prior to incurring any defense costs, City agrees
to notify Developer and offer to meet -and -confer with Developer to discuss
practicable measures to manage total defense costs. The City's participation shall
not relieve the Developer of any of its obligations under this Article XIV.
14.1.5. Insurance Proceeds. Developer's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its officials, officers, employees
and/or agents.
14.1.6. No Use of Security. The security identified in Article XIII shall not be used to
satisfy the obligations of Developer under this Article XIV.
US-D0CS\1O3150550.15
14.1.?- Declarations. Developer's obligations under Article XIV shall not be limited by
any prior or subsequent declaration by Developer.
14.1.5. &{forcement off, Costs. Developer agrees to pay any and all costs, including
attorneys' fees, that the City incurs enforcing the indemnity and defense provisions
set forth in Article XIV.
14.1.9. Survival. Developer's obligations under Article XIV shall survive the expiration
and/or termination of this Agreement.
ARTICLE XV. INSURANCE REQUIREMENTS
14.1. Insurance Requirements. Developer shall, and shall require its architects, engineers,
contractors, subcontractors, and other persons and entities providing services for or
performing work on the Project to purchase and maintain insurance in the same manner
and to the same extent as required by Section 4.10 of the DDA. The parties agree to meet -
and -confer to try to identify insurance coverage to cover losses to Project supplies,
materials, and equipment prior to Acceptance.
ARTICLE XVI. RECORDS AND AUDITS
16.1. Retention of Records. Developer shall maintain data and records related to this Agreement.
for a period of not less than three (3) years following receipt of final payment under this
Agreement.
16.2. Audit of Records. At any time during normal business hours and as often as the City deems
necessary, Developer, the General Contractor and any or all of Subcontractors shall make
available to the City for examination at reasonable locations within the City/County of San
Diego all of the data and records with respect to all matters covered by this Agreement.
Developer, the General Contractor and Subcontractors will permit the City to make audits
of all invoices, materials, payrolls, records of personnel, and other data and media relating
to all matters covered by this Agreement. If records are not made available within the
City/County of San Diego, then Developer shall pay all the City's travel related costs to
audit the records associated with this Agreement at the location where the records are
maintained. Such costs will not be Reimbursable Costs.
16.2.1. Costs. Developer and Developer's agents shall allow City to audit and examine
books, records, documents, and any and all evidence and accounting procedures
and practices that City reasonably determines are necessary to discover and verify
all costs of whatever nature, which are claimed to have been incurred, anticipated
Us. 60CS\103150550.15
to be incurred, or for which a claim for additional compensation or for extra work
have been submitted under this Agreement.
ARTICLE XVI1. MISCELLANEOUS PROVISIONS
17.1. Notices, All notices and demands given pursuant to this A-eement shall be written. They
shall be deemed served (i) immediately, upon personal delivery; (ii) the next Working Day,
if sent prepaid by recognized overnight service such as FedEx for delivery the next
Working Day; or (iii) three (3) Working Days after deposit in the United States mail,
certified or registered mail, return receipt requested, first-class postage prepaid. Until
notice of a change of address is properly given, notice shall be given:
If to City: City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
Chula Vista, California 91910
If to Developer: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Legal Department
With a copy to: Latham & Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
17.2. Cations. Captions in this Agreement are inserted for convenience of reference. They do
not define, describe or limit any term of this Agreement.
17.3. Entire Agreement. This Agreement embodies the entire agreement and understanding
between the Parties regarding the subject matter hereof. No prior or contemporaneous oral
or written representations, agreements, understandings and/or statements regarding its
subject matter shall have any force or effect. This Agreement is not intended to supersede
or amend any other agreement between the Parties unless expressly noted. However, all
US- DOC5\10315Q550.15
previous written agreements, remain in full force and effect except to the extent they
conflict with this Agreement.
17.4. Severability. If any provision of this Agreement or its particular application is held invalid
or unenforceable, the remaining provisions of this Agreement, and their application, shall
remain in full force and effect, unless a Party's consideration materially fails as a result.
17.5. Recordation. The City may record this Agreement in the Office of the County Recorder of
San Diego County, California.
17.6. Preparation of Agreement. No inference, assumption or presumption shall be drawn from
the fact that a Party or its attorney drafted this Agreement. It shall be conclusively
presumed that all Parties participated equally in drafting this Agreement.
17.7. Authority. Each Party warrants and represents that it has legal authority and capacity to
enter into this Agreement, and that it has taken all necessary action to authorize its entry
into this Agreement.
17-8, 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.
17.9. Governing Law and 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 shall be the City of San Diego.
17.10. Administrative Claims, 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 CVMC, 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 City in the implementation of same.
17.11. Non -liability of City Officials and Employees. No member, official, employee or
consultant of the City shall be personally liable to Developer in the event of any default or
breach by City, or for any amount which may become due to Developer, or on any
obligations under the terms of this Agreement.
17.12. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be the original and all of which shall constitute one and the same document.
U5 -DOC5\ 103150550.15
[End of page. Signature page follow this page.]
US-DOCS\103 1505 50. 15
IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and
year first set forth above.
CITY
CITY OF CHULA VISTA, a California
charter city and municipal corporation
Gary Halbert, City Manager
ATTEST:
By:
Kerry Bigelow, City Clerk
APPROVED AS TO FORM:
By:
Glen R. Googins, City Attorney
DEVELOPER
RIDA CHULA VISTA, LLC, a Delaware
limited liability company
California Contractor License Number:
1039979
* Signatories to provide signature authority
for signatory.
U$- DOC5\ 103150550.15
Exhibit A
Estimated Cost
Sewer
Improvement Description
Improvement Cost
Estimate'
E Street (G Street to H Street)
730,000
G Street Connection
85,000
H-3 Utility Corridor
380,000
Total
1,195,000
2 Cost estimates are in 2019 dollars. Estimates include hard costs, soft costs, and coatineneies.
U5- DOC5\103150550.15
Exhibit B
Amendments to the Greenback
U S- o oCS\ 103150550.15
CITY OF CHULA VISTA
REIMBURSEMENT AGREEMENT
WITH RIDA CHULA VISTA, LLC
TO DESIGN SPECIFIED BAYFRONT INFRASTRUCTURE IMPROVEMENTS
This REIMBURSEMENT AGREEMENT ("Agreement") is entered into as of this
day of , 20 (the "Execution Date") by and among the City of Chula Vista, a
chartered municipal corporation ("City") and RIDA Chula Vista, LLC, a Delaware limited liability
company ("Developer") (collectively, the "Parties" and, individually, a "Party"), with reference to
the following Recitals:
A. WHEREAS, City, Developer, and the San Diego Unified Port District ("District")
entered into a Disposition and Development Agreement for the Resort Hotel Convention Center
Project (Chula Vista Bayfront Master Plan Parcel H-3), effective May 7, 2018 (the "DDA"); and
B. WHEREAS, the Scope of Development attached to the DDA provides that the
Developer shall construct certain infrastructure improvements, consisting of: E Street (from G
Street to H Street), the G Street Connection, H Street (Bay Boulevard to Street A), H Street (Marina
Parkway to E Street), Harbor Park (Initial), H-3 Site Prep, and the H-3 Utility Corridor (the
"Developer's Phase IA Infrastructure Improvements"); and
C. WHEREAS, Section 4.7(c) of the DDA provides that the District and the City shall
reimburse the Developer in cash for any and all hinds expended prior to the DDA Close of Escrow
by the Developer in connection with design, architectural work, and engineering work for the
Developer's Phase 1 A Infrastructure Improvements as set forth in the Scope of Development, other
than the amounts that have been paid to Developer pursuant to Section 4.8(e) of the DDA, from
the first disbursement of the Public Fund Contribution pursuant to the construction loan account
instructions; and
D. WHEREAS, the Scope of Development attached to the DDA provides that the in-
road sewer facilities included in the Developer's Phase IA Infrastructure Improvements (the
"Developer's Sewer Improvements") shall be funded by the City's Sewer Facility Contribution;
and
E. WHEREAS, the Developer and the City have negotiated and anticipate executing
the City of Chula Vista Reimbursement Agreement with RIDA Chula Vista, LLC to Construct
Specified Bayfront Sewer Improvements (the "Sewer Reimbursement Agreement") for this
purpose; and
F. WHEREAS, the Sewer Reimbursement Agreement provides a mechanism for the
City to reimburse the Developer in cash for any and all funds expended prior to the DDA Close of
1 City of Chula Vista Agreement No.: 14047
RIDA CI IULA VISTA, LLC
1
Escrow by the Developer in connection with design, architectural work, and engineering work for
the Developer's Sewer Improvements; and
G. WHEREAS, the scope of this Agreement is therefore limited to the Developer's
Phase 1 A Infrastructure Improvements, excluding the Developer's Sewer Improvements (the
'Project"); and
H. WHEREAS, the City has identified and set aside funds generated by the Bayfront
project sufficient for this purpose; and
I. WHEREAS, Developer desires to enter into this Agreement with the City, so that
it may obtain reimbursement for the eligible costs of designing Developer's Phase IA
Infrastructure Improvements incurred prior to DDA Close of Escrow.
AGREEMENT
NOW THEREFORE, in consideration of the above Recitals, the covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties
hereby acknowledge, City and Developer agree as follows:
ARTICLE I. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms and phrases shall
have the following meanings:
1.1. Agreement. "Agreement" means this Reimbursement Agreement between the City and the
Developer. The term "Agreement" shall include any amendment to the Agreement properly
approved and executed pursuant to the terms of this Agreement.
1.2. City. "City" means the City of Chula Vista. Unless specifically provided otherwise,
whenever this Agreement requires an action or approval by City, that action or approval
shall be performed by the City representative designated by the Agreement.
1.3. City Council. "City Council" means the governing body of the City.
1.4. City Manager. "City Manager" means the City Manager of City or his or her designee.
1.5. Cutoff Date. "Cutoff Date" means ninety (90) days from the DDA Close of Escrow.
1.6. CVMC. "CVMC" has the meaning given to such term in the Recitals.
1.7. DDA. "DDA" has the meaning given to such term in the Recitals.
1.8. DDA Close of Escrow. "DDA Close of Escrow" means Close of Escrow as such terra is
defined in the DDA.
I City of CIiuLa Vista Agreement Na.: 19097
RIi3A CHULA VISTA, LLC
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1.9. Desi2n Professional(s). "Design Professional(s)" means persons or entities providing
design, architecture, landscape architecture, survey, or engineering work or services for the
Developer's Phase 1 A Infrastructure Improvements.
1.10. Developer. "Developer" has the meaning given to such term in the preamble.
1.11. Developer's Phase 1 A Infrastructure Improvements. "Developer's Phase IA Infrastructure
Improvements" has the meaning given to such term in the Recitals.
1.12. Developer's Sewer Improvements. "Developer's Sewer Improvements" has the meaning
given to such term in the Recitals.
1.13. Director of Development Services. "Director of Development Services" means the
Director of Development Services of City or his or her designee.
1.14. District. "District" has the meaning given to such term in the Recitals.
1.15. Eligible Expenses. "Eligible Expenses" means costs that the City shall reimburse
Developer for the Project, not to exceed the Estimated Cost.
1.1 G. Estimated Cost. "Estimated Cost" means the design cost of the Project to be incurred prior
to DDA Close of Escrow, estimated to total $715,000, as shown in Exhibit A, attached
hereto. As the Estimated Cost is not initially the result of contracts for the actual design,
it is subject to change during the contract negotiation process as well as during the design
phase, subject to approval of the Parties.
1.17. Execution Date. "Execution Date" has the meaning given to such term in the preamble.
1.18. Holiday. "Holiday" means the City -observed holidays listed below (if any holiday listed
falls on a Saturday, then the Saturday and the preceding Friday arc both legal holidays. If
the holiday should fall on a Sunday, then the Sunday and the following Monday are both
legal holidays):
Holiday
New Year's Day
Martin Luther King, Jr. Day
Caesar Chavez Day
Memorial Day
Independence Day
Labor Day
Veteran's Day
Thanksgiving Day
Thanksgiving Day Friday
Christmas Day
Observed On
January 1
Third Monday in January
March 31
Last Monday in May
July 4
First Monday in September
November 11
Fourth Thursday in November
Friday after Thanksgiving
December 25
I City of Chula Vista Agreement Nn.: 19097
RIDACHULA VISTA, [.1.C
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1.1 9. Maximum Reimbursement Amount. "Maximum Reimbursement Amount" means the
lesser of the Estimated Cost, as may be amended from time to time, or the amount of
Reimbursable Costs that is calculated during the Final Accounting (as defined below).
1.20. Non -Reimbursable Costs. "Non -Reimbursable Costs" means the following costs that shall
not be eligible for reimbursement under this Agreement: Costs Incurred Due to Negligence
or Unapproved Costs, each as further defined in Section 6.1.4.1.
1.21. Party. "Party" has the meaning given to such term in the preamble.
1.22. Pa anent Date. "Payment Date" means twenty (20) days following the date on which
Developer submits a complete Reimbursement Request (as reasonably determined by the
Director of Development Services) or a Reimbursement Request that is complete with
respect to a portion of the requested reimbursement (as reasonably determined by the
Director of Development Services).
1.23. Project. "Project" has the meaning given to such term in the Recitals.
1.24. Project Improvements. "Project Improvements" or "Improvements" means the
Developer's Phase IA Infrastructure Improvements, excluding Developer's Sewer
Improvements.
1.25. Public Fund Contribution. "Public Fund Contribution" has the meaning given to such term
in the DDA.
1.26. Reimbursable Costs. "Reimbursable Costs" means costs of the design of the Developer's
Phase I A Infrastructure Improvements that have been expended by Developer and
approved by the City through approval procedures described in the Agreement,
1.27. Reimbursement Request. "Reimbursement Request" means a reimbursement request
package submitted to the City containing the items listed in Section 6.1.2.1.
1.28. Sewer Facility Contribution. "Sewer Facility Contribution" means the contribution by the
City to fund specific sewer facility improvements comprising part of the RHCC Public
Improvements as may be more specifically described in the Plan of Finance (as defined in
the DDA),
1.29. Sewer Reimbursement Agjeemncnt. "Sewer Reimbursement Agreement" has the meaning
given to such term in the Recitals.
1.30. Working Day(s). "Working Day(s)" means Monday through Friday, excluding Holidays.
I City of Chula vista AgmeammenI No.: 19097
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ARTICLE II. SUBJECT OF THE AGREEMENT - GENERALLY
The above -listed Recitals are true and correct and are hereby incorporated by this reference. All
attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.
2.1. Developer's Design of _ Phase 1 A Infrastructure Improvements. Except as expressly
provided in this Agreement, Developer shall cause the design of the Phase LA
Infrastructure Improvements, in accordance with all the terms and conditions ❑f this
Agreement and for no more than Maximum Reimbursement Amount.
2,2. City Payment. City shall reimburse Developer, subject to the terms and conditions herein,
for the Eligible Expenses of design of Developer's Phase IA Infrastructure Improvements.
ARTICLE III. DURATION OF AGREEMENT
3.1. Tenn of Agreement. This Agreement shall become effective on the Effective Date
following City Council's approval, and the term of this Agreement shall extend until the
earlier of (i) such time as all executory terms have been completed and (ii) earlier
termination of this Agreement.
ARTICLE IV, PROJECT COSTS
4,!. Estimated Cost. The Estimated Cost of the Project is seven hundred and fifteen thousand
dollars ($715,000), as shown in Exhibit A, attached hereto.
4.2. Adjustment to Estimated Cost. The Estimated Cost is subject to change by the methods
identified in this Agreement.
4.3. Notification of Increased Costs. If, at any time, Developer definitely establishes that the
amount to be expended on the Project will exceed the Estimated Cost, Developer shall
promptly, and in any case not more than ten (10) Working Days after the Developer
definitely establishes the amount of the increase, notify the City thereof in writing. This
written notification shall include an itemized cost estimate and a list of recommended
revisions (e.g., deductive changes) which Developer believes will bring the design cost to
within the Estimated Cost. The City may either: (i) approve an increase in Estimated Cost
(which approval shall not be unreasonably withheld, conditioned, or delayed); or (ii)
reasonably delineate a project which may be designed for the Estimated Cost; or (iii) any
combination of (i) and (ii).
ARTICLE V. DESIGN STANDARDS
5.1. Standard of Care. Developer agrees that the services provided as part of this Agreement
shall be performed in accordance with the standards customarily adhered to by experienced
I City o(Chula Vista Agreeanent No.: 19097
RIDA CHIULA VISTA, LLC
5
and competent professional architectural, engineering, and landscape architecture firms (as
applicable) using the degree of care and skill ordinarily exercised by reputable
professionals practicing in the same field of service in the State of California.
5.1.1. Compliance with all Laws. Developer shall comply, and require compliance by
any and all of its Design Professionals, employees, and agents with all laws,
including but not limited to all local, City, San Diego County, State of California,
and federal laws, codes and regulations, ordinances and written publicly available
policies, including, but not limited to, Development Services Department permits,
state and local Building Codes, stormwater regulations, etc.
5.2. City Approval Not a Waiver of Obligations. Where approval by the City, the City
Manager, or other representative of City is required, it is understood to be general approval
only and does not relieve Developer of responsibility for complying with all applicable
laws, codes, and good consulting, design, and constriction practices. and Any approval by
City not an assumption of liability by the City and shall not cause City to become an insurer
or surety of work associated with the approvals.
ARTICLE VI. REIMBURSEMENT/PAYMENT OF COSTS AND EXPENSES
6.1. Payment of Costs Associated with Proiect
6.1.1. Maximum Reimbw---Fement Amount. The maximum amount of reimbursement for
Project shall not exceed the Maximum Reimbursement Amount. Developer shall
not be entitled to payment in excess of the Maximum Reimbursement Amount.
6.1.2. Prerequisites to Payment.
6.1.2.1. Reimbursement Request. Prior to reimbursement of any costs or expenses
for the Project, Developer shall provide the City with a Reimbursement
Request containing the following:
a. Invoices. Developer shall provide the Director of Development
Services all invoices for Reimbursable Costs associated with
Project, not previously paid by the City, within 30 days after receipt
thereof.
h. Proof of Payment. Developer shall provide the Director of
Development Services with proof of payment of all invoices for
Reimbursable Costs submitted within 30 days after such payment.
I City of Chu[a Vista Agreesswnl No.: 19097
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2
c. Certification of Payment. Developer shall provide the Director of
Development Services with a written certification that all costs for
which Developer is seeking reimbursement have been paid.
d. Acknowledgement of Subcontractors. Developer shall provide the
Director of Development Services with a letter from each firm (e.g.
civil, survey, and geotechnical) acknowledging that eligible soft
costs included in the relevant invoices have been paid.
e. Other Documents. Developer shall provide the Director of
Development Services with any other documents that may be
needed to evaluate the eligibility of the expense as determined
necessary by the Director of Development Services in his/her sole
discretion.
City shall not have an obligation to make payment to Developer unless
and until Developer provides the Director of Development Services with
a Reimbursement Request containing all of the applicable items listed
above and such Reimbursement Request is approved by the Director of
Development Services as provided below.
6.1.2.2. City Approval. The Director of Development Services shall review each
Reimbursement Request and the supporting documentation. If the
Director of Development Services finds that any such Reimbursement
Request is incomplete, improper, or otherwise not suitable for
reimbursement, the Director of Development Services shall inform
Developer in writing within fifteen (15) Working Days after receipt
thereof of the reasons for his/her finding. Developer shall have the right
to respond to such finding by submitting further documentation or
information to the City. The Director of Development Services shall
review any further documentation received from Developer in support of
the Reimbursement Request and inform Developer of his/her approval or
denial of the Reimbursement Request, in Nvhole or in part, within ten (10)
Working Days after receipt of such further documentation. If the Director
of Development Services determines that the Reimbursement Request is
incomplete, but that sufficient and complete information exists with
respect to a portion of the Reimbursement Request, then the Director of
Development Services may but is not obligated to approve the
Reimbursement Request with respect to such portion of the
Reimbursement Request. The City shall cause the Director of
1 City of Chula Vista r rccincnt No.: 19{197
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7
Development Services to carry out its duties under this Section 6.1.2.2 in
a reasonable and good faith manner.
6.1.3, Time of Payment. After Developer has obtained City's approval, in whole or in
part, of a Reimbursement Request pursuant to 6.1.2, City shall reimburse Developer
for the approved Reimbursable Costs by the Payment Date. If the Payment Date
falls on a weekend or holiday, the Payment Date shall be extended to the next
Working Day.
6.1.3.1. Additional Costs. Any costs that may accrue, such as interest on late
payments to Developer's Design Professionals as a result of the
Developer's failure to provide a complete Reimbursement Request, shall
not be the obligation of the City if the City has not received a complete
Reimbursement Request, Such additional costs shall be the obligation of
the Developer and not eligible for reimbursement.
6.1.4. Reimbursement A mount per Reimbursement Request. The City shall pay Developer
approved amounts in the Reimbursement Request, less any Non -Reimbursable
Costs and Contested Charges (as defined below).
6.1.4.1. Non -Reimbursable Costs. The following custs/expenses shall not he
eligible for reimbursement under this Agreement.
a. Costs Incurred Due to Negligence. Developer shall not be entitled
to payment for any incremental cost or expense incurred due to
negligent acts, negligent omissions, or willful misconduct of
Developer or Developer's Design Professionals, or any of their
respective contractors, subcontractors, employees, or agents.
b. Unapproved Costs. Developer shall not be entitled to
reimbursement for any cost or expense that has not been approved
by the City pursuant to Section 6.1.2.2.
c. Additional Costs. Developer shall not be entitled to reimbursement
for additional costs pursuant to 6. I.3.1.
d. Requests After Cutoff Date. Developer shall not be entitled to
reimbursement for costs included in Reimbursement Requests
submitted after the Cutoff Date pursuant to 6.1.5.
6.1.4.2. Contested Charges. In the event that the City contests any cost/expense
on an invoice received ("Contested Charge"), the City shall provide
I City of Chula Vista Agretnneni No.: 19[]47
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Developer a written statement of the Contested Charges, the reason why
the costs/expenses are contested, and a proposed resolution.
a. Appeal to City Manager. Developer may appeal the City's
determination of any Contested Charges. The appeal must be
received by the City within 30 days after the City notifies the
Developer of such Contested Charge. During the appeal period, and
as long as any Contested Charges remain disputed. Developer shall
proceed with the Project, and the City shall compensate Developer
for the undisputed amounts. If, following the appeal, the City
Manager determines that any Contested Charges are eligible for
reimbursement, such amounts shall he included in the next payment
to Developer.
6.1 .5. Cutof j for Submission of .Invoices. Developer shall submit its final Reimbursement
Request not later than the Cutoff Date, Any Reimbursement Requests submitted
after the Cutoff Date shall not be reviewed or included in Reimbursable Cost. The
final payment by the City for the Project will be made only after Developer has
submitted all documentation reasonably necessary to substantiate the cost of the
Project.
6.1.6. Final Accounting. Following completion of the Project, Developer shall submit a
final accounting ("Final Accounting") to the City in order to determine the cost of
the Project. Developer shall also submit all supporting int`nrmation reasonably
necessary to document costs/expenses for the Project, including specific details on
the costs and work attributable to the Project, including as applicable, third -party
invoices, billings, and receipts.
6.1.6.1. True -up Payments. Within 30 Working Days following a Final
Accounting, the City shall determine whether the actual payments made
to the Developer equal the audited approved costs and expenses. In the
event that the amount of the approved costs and expenses exceed the
amount of the actual payments, the City shall make a true -up payment to
Developer for the difference; however, in no event, shall the true -up
payment cause the total amount paid to exceed the Maximum
Reimbursement Amount. If the Final Accounting shows that the amount
of actual payments to Developer exceed the amount of the approved costs
and expenses, Developer shall remit or cause the remittance of the
difference to the City within twenty (20) Working Days of a notice of
deficiency.
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ARTICLE VII. INDEMNITY AND DUTY TO DEFEND
7.1. Defense. indemnity. and Hold Harml
7.1.1. General Requirement, Developer shall defend, indemnify, protect, and hold
harmless the City, its elected and appointed officers, agents and employees, from
and against any and all claims, demands, causes of action, costs, expenses,
liabilities, loss, damages, and injuries, in law or equity, to property, including
takings claims, or persons, including wrongful death, to the extent and proportion
directly or indirectly caused by any negligent acts or negligent omissions, or
negligence or willful misconduct of Developer, its officials, officers, contractors,
Design ProfessionaI(s), agents, or employees arising out of or in connection with
the Project or this Agreement.
This indemnity provision does not include any claims, damages, liability, costs and
expenses (including without limitations, attorneys' fees) arising from the sole
negligence, active negligence or willful misconduct of the City, its officials,
officers, agents, or employees. Also covered by this provision is liability arising
from, connected with, caused by, or claimed to be caused by the active or passive
negligent acts or negligent omissions of the City, its agents, officers, officials or
employees which may be in combination with, and to the extent and proportion
caused by, the active or passive negligent acts or negligent omissions of Developer,
its officials, officers, contractors, Design Professional(s), agents, or employees.
7.1.2. Costs ofD�fense and Award. Developer shall immediately accept all tenders and
defend, at Developer's own cost, expense and risk, any and all claims, demands,
suits, actions, or other legal or administrative proceedings that may be brought or
instituted against the City, its officials, officers, employees, and/or agents.
Developer acknowledges and agrees that its obligation to accept tender and defend
the City, its officials, officers, employees, and/or agents as provided in this Section
7.1.2 is absolute and not subject to any limitations in Section 7.1.1 of this
Agreement, or elsewhere. Developer shall pay and satisfy any judgement, award,
or decree that may be rendered against City or its officials, officers, employees,
and/or agents, for any and all related legal expense and costs incurred by each of
them to the extent of Developer's actual determined negligence, subject to the
limitations in Section 7.1.1. The City may, in its sole and absolute discretion,
participate in the defense of any and all suits, actions, or other legal proceedings
that may he brought or instituted against the City, its officials, officers, employees,
and/or agents, and the Developer shall have the obligation to reimburse the City for
any costs of defense incurred by the City, including, without limitation,
reimbursement for attorneys' fees, experts' fees and other costs. The City's
L City of Chula Vista Ag micni No.: 19097
RIDA CHULA VISTA, LLC
participation shall not relieve the Developer of any of its obligations under this
Article VII.
7.1.3. Insurance Proceeds. Developer's obligations under Article VII shall not be
restricted to insurance proceeds, if any, received by the City, its officials, officers,
employees, and/or agents.
7.1,4. Declarations. Developer's obligations under Article VII shall not be limited by
any prior or subsequent declaration by Developer.
7.1.5. Enforcement of Costs. Developer agrees to pay any and all costs, including
attorneys' fees that the City incurs enforcing the indemnity and defense provisions
set forth in Article VII.
7.1.6. Survival. Developer's obligations under Article VII shall survive the expiration
and/or termination of this Agreement.
ARTICLE VIII. INSURANCE REQUIREMENTS
8.1. Insurance Requirements. Developer shall, and shall require its architects, engineers,
contractors, subcontractors, and other persons and entities providing services for or
performing work on the Project to purchase and maintain insurance in the same manner
and to the same extent as required by Section 4.10 of the DDA.
ARTICLE IX. RECORDS AND AUDITS
9.1. Retention of Records. Developer shall maintain data and records related to this Agreement
for a period of not less than three (3) years following receipt of final payment under this
Agreement.
9.2. Audit of Records. At any time during normal business hours and as often as the City deems
necessary. Developer and any or all of Developer's Design Professionals shall make
available to the City for examination at reasonable locations within the City/County of San
Diego all of the data and records with respect to all matters covered by this Agreement.
Developer and Developer's Design Professionals will permit the City to make audits of all
invoices, materials, payrolls, records of personnel, and other data and media relating to all
matters covered by this Agreement. if records are not made available within the
City/County of San Diego, then Developer shall pay all the City's travel related costs to
audit the records associated with this Agreement at the location where the records are
maintained. Such costs will not be Reimbursable Costs.
9.2.1. Costs. Developer and Developer's agents shall allow City to audit and examine
books, records, documents, and any and all evidence and accounting procedures
1 City of China Vista ,Agrremenl No.: 191197
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and practices that City reasonably determines are necessary to discover and verify
all costs of whatever nature, which are claimed to have been incurred, anticipated
to be incurred, or for which a claim for additional compensation have been
submitted under this Agreement.
ARTICLE X. MISCELLANEOUS PROVISIONS
1 0.1. Notices. All notices and demands given pursuant to this Agreement shall be written. They
shall be deemed served (I) immediately, upon personal delivery; (ii) the next Working Day,
if sent prepaid by recognized overnight service such as FedEx for delivery the next business
day; or (iii) three (3) business days after deposit in the United States mail, certified or
registered mail, return receipt requested, first-class postage prepaid. Until notice of a
change of address is properly given, notice shall be given:
If to City: City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91 910
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
Chula Vista, California 91910
If to Developer: R IDA Chula Vista, LLC
Attention: Legal Department
1777 Walker Street, Suite 501
Houston, Texas 77010
With a copy to: Latham & Watkins
Attn: Steven Levine
12670 High Bluff Drive
San Diego, CA 92130
10.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do
not define, describe or limit any term of this Agreement.
10.3. Entire Agreement. This Agreement embodies the entire agreement and understanding
between the Parties regarding the subject matter hereof. No prior or contemporaneous oral
or written representations, agreements, understandings and/or statements regarding its
subject matter shall have any force or effect. This Agreement is not intended to supersede
or amend any other agreement between the Parties unless expressly noted. However, all
I City ofChuia Vista Agreement No.: 19097
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previous written agreements, remain in full force and effect except to the extent they
conflict with this Agreement.
10.4. Severability. If any provision of this Agreement or its particular application is held invalid
or unenforceable, the remaining provisions of this Agreement, and their application, shall
remain in full force and effect, unless a Party's consideration materially fails as a result,
10.5. Recordation, The City may record this Agreement in the Office of the County Recorder of
San Diego County, California.
10,6. Preparation of Agreement. No inference, assumption or presumption shall be drawn from
the fact that a Party or its attorney drafted this Agreement. It shall be conclusively
presumed that all Parties participated equally in drafting this Agreement.
10.7. Authority. Each Party warrants and represents that it has legal authority and capacity to
enter into this Agreement, and that it has taken all necessary action to authorize its entry
into this Agreement.
10.8. Modification. This Agreement may not be modified, terminated or rescinded, in whole or
in part, except by written instniment duly executed and acknowledged by the Parties hereto,
their successors or assigns.
10.9. Governing Law and 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 shall be the City of San Diego.
10.10. Administrative Claims. 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 CVMC, 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 City in the implementation of same.
10.11. Non -liability of City Officials and Employees. No member, official, employee or
consultant of the City shall be personally liable to Developer in the event of any default or
breach by City, or for any amount which may become due to Developer, or on any
obligations under the terms of this Agreement.
10.12. Counterparts, This Agreement may be executed in any number of counterparts, each of
which shall be the original and all of which shall constitute one and the same document.
1 City of Chula Vista Agreement No 19097
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jEnd of page. Signature page follows this page.]
1 City of Chula Vista Agr emc No.: 19097
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IN WITNESS WIIEREOF, this Reimbursement Agreement is executed as of the day and
year first set forth above,
DEVELOPER
CITY OF CHULA VISTA, a California RIDA CHULA VISTA, LI.C, a Delaware
charter city and municipal corporation limited liability company
13y:
Gary Halbert, City Manager
l�i�II&�IIA
is
Kerry Bigelow, City Clerk
APPROVED AS TO FORM:
By:
Glen R. Goggins, City Attorney
* Signatories to provide signature authority
for signatory.
fl City of Chula Vi.s a Agrccment No.: t9093
RIDA CHULA VISTA, LLC
15
EXHIBIT A
ES'1'INIATED COST
Improvement Description
Design Cost
Estimatel
E Street (G Street to H Street)
315,000
G Street Connection
35,000
H Street (Bay Blvd to Street A)
20,000
H Street (Marina Pkwy to E Street)
270,000
H-3 Utility Corridor
75,000
Total
715,000
Costs are in 2019 dollars.
I C:ii}' of Chula Vista Agiicctinent No.: 19097
RIIACHU[,A Vi5TA, LLC
16
«1 City of Chula Vista
CITY OF
CHULA VISTA Master
File Number; 19-0414
File ID: 19-0414 Item Type: Consent Item Status: Agenda Ready
Version: 1
LARQ:
Item Topic: RIDA Reimbursement Agreements
Body: City Council
File Created: 08/15/2019
Final Action:
Benda Title: A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
(1) APPROVING A REIMBURSEMENT AGREEMENT BETWEEN THE
CITY AND RIDA CHULA VISTA, LLC ("DEVELOPER") TO CONSTRUCT
SPECIFIED SEWER IMPROVEMENTS; (2) FINDING THE DEVELOPER'S
PROPOSED SOLE SOURCE AWARD TO ITS GENERAL
CONTRACTOR TO CONSTRUCT SUCH IMPROVEMENTS TO BE IN
THE BEST INTEREST OF THE PUBLIC, PURSUANT TO CHULA VISTA
MUNICIPAL CODE SUBSECTION 2.56.160(H),
"DEVELOPER -PERFORMED PUBLIC WORKS'; (3) DELEGATING TO
THE CITY MANAGER AUTHORITY TO ASSURE COMPLIANCE WITH
APPLICABLE PROCUREMENT REQUIREMENTS FOR
SUBCONTRACTORS; AND (4) APPROPRIATING FUNDS THEREFOR
(4/5 VOTE REQUIRED)
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A REIMBURSEMENT AGREEMENT BETWEEN THE CITY
AND RIDA CHULA VISTA, LLC TO DESIGN SPECIFIED BAYFRONT
INFRASTRUCTURE IMPROVEMENTS AND APPROPRIATING FUNDS
THEREFOR (415 VOTE REQUIRED)
C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
FINDING RIDA CHULA VISTA. LLC'S PROPOSED SOLE SOURCE
AWARD TO ITS GENERAL CONTRACTOR TO CONSTRUCT
BAYFRONT DEVELOPMENT IMPACT FEE TRANSPORTATION
FACILITIES TO BE IN THE BEST INTEREST OF THE PUBLIC,
PURSUANT TO CHULA VISTA MUNICIPAL CODE SUBSECTION
2.56.160(H), "DEVELOPER -PERFORMED PUBLIC WORKS," AND
DELEGATING TO THE CITY MANAGER AUTHORITY TO ASSURE
COMPLIANCE WITH APPLICABLE PROCUREMENT REQUIREMENTS
FOR SUBCONTRACTORS
This item was continued from August 13, 2019.
Agenda Date: 09110/2019
Agenda Number: 4.
City of Chula Vista Page f Printed on 918/2019
Maarer Continued 19-0414
Sponsors: Enactment Date:
Attachments: Staff Report, Resolution A, Item 4 New or Upd Fee? ti:
,Dnflicts Verif By: Hard Deadline:
Drafter: tatlen[c chulavistaca.gov Conflicts Verif On:
Approval History
Version Sgp to Action Date Approver Action Due Date
History of Legislative File
Ver- Acting Body: Date: Action: Sent To; Duo Date: Return Result:
SiDjl
t t:sly Cflundi 09I10f2019
Text of Legislative File 19.0414
Clry of Chula Vista Paw, 2 Printed an 9/9/2019
Item 4 — Exhibit I
Revised 9/10119
CITY OF CHULA VISTA
REIMBURSEMENT AGREEMENT
WITH RIDA CHULA VISTA, LLC
TO CONSTRUCT SPECIFIED RAYFRONT SEWER IMPROVEMENTS
This REIMBURSEMENT AGREEMENT ("Agreement") is entered into as of this
day of , 20 (the "Execution Date") by and among the City of Chula Vista, a
chartered municipal corporation ("City") and RIDA Chula Vista, LLC, a Delaware limited liability
company ("Developer") (collectively, the "Parties" and, individually, a "Party"), with reference to
the following Recitals;
RECITALS
A. WHEREAS, City, Developer, and the San Diego Unified Port District ("District")
entered into a Disposition and Development Agreement for the Resort Hotel Convention Center
Project (Chula Vista Bayfront Master Plan Parcel H-3), effective May 7, 2018 (the "DDA"); and
B. Wl-IEREAS, the Scope of Development attached to the DDA provides that the
Developer shall in connection with the development of Developer's Private Improvements (as
defined in the DDA) construct certain in -road sewer improvements, consisting of E Street (from
G Street to 1-1 Street), the G Street Connection, and the H-3 Utility Corridor (collectively, the
"Developer's Sewer Improvements" or "Project"), to be funded by the City's Sewer Facility
Contribution; and
C. WHEREAS, pursuant to Chula Vista Municipal Code ("CVMC") Section
13.14.030(B) (Connection to Public Sewer — Fee), any person desiring to connect, directly or
indirectly, any parcel or any building thereon to any public sewer which has been constructed at.
no cost to the parcel to be connected shall pay the one-time required fee for sewer connection to
the City, with all revenue derived from such fees to be deposited into the Sewer Income Fund; and
D. WHEREAS, pursuant to CVMC Chapter 3.16 (Sewer Income Fund), all revenues
collected under CVMC Section 13.14.030(B) shall be deposited into the "Sewer Income Fund"
and may be used, in the discretion of the City Council (as defined below) and pursuant to a written
contract, to reimburse any person who has constructed sewer facilities to the extent, as determined
by the City Council, that such sewer facilities have benefited other properties; and
E. WHEREAS, the Developer's Sewer Improvements are eligible for reimbursement
from the Sewer Income Fund, and
F. WHEREAS, the City has sufficient fiends in the Sewer Income Fund to reimburse
Developer for the design, development and construction of the Developer's Sewer Improvements;
and
G. WHEREAS, Developer desires to enter into this Agreement with the City, so that
it may obtain reimbursement for the eligible costs of designing, developing and constructing
Developer's Sewer Improvements.
AGREEMENT
NOW THEREFORE, in consideration of the above Recitals, the covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties
hereby acknowledge, City and Developer agree as follows:
ARTICLE 1. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms and phrases shall
have the following meanings:
I.1. Acceptance. "Acceptance" means Project acceptance pursuant to standard and customary
City practices.
1.2. Agreement. "Agreement" means this Reimbursement Agreement between the City and the
Developer. The term "Agreement" shall include any amendment to the Agreement
properly approved and executed pursuant to the terms of this Agreement_
1.3. Approved Drawings and Snecifrcations. "Approved Drawings and Specifications" means
the drawings and specifications for the Developer's Sewer Improvements as approved and
permitted by the City.
1.4. 13MP. "BMP" has the meaning given to such term in Section 8.1.3.
I.5. City. "City" means the City of Chula Vista. Unless specifically provided otherwise,
whenever this Agreement requires an action or approval by City, that action or approval
shall be performed by the City representative designated by the Agreement.
1.6, City Attorney. "City Attorney" means that position established pursuant to and in
accordance with CVMC Chapter 2.11.
1.7. City Council. "City Council" means the governing body of the City.
1.8. City Engineer, "City Engineer" means that position established pursuant to and in
accordance with CVMC Chapter 2,06,
1.9. City Manager. "City Manager" means the City Manager of City or his or her designee.
I.10. Competitive Bid or Solicitation Process. "Competitive Bid or Solicitation Process" has the
meaning given to such term in Section 6.1.
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RIDA CHULA VISTA, LUC
1. 11. Contested Charge. "Contested Charge" has the meaning given to such term in Section
9.1.5.3.
1.12. Contract Documents. "Contract Documents" includes, but is not limited to: the prime
construction contract(s), prime construction contract(s) exhibits and addenda,
subcontract(s), subcontract(s) exhibits and addenda, and any of the following: notice
inviting bids, instructions to bidders, bid (including documentation accompanying bid and
any post -bid documentation submitted prior to notice of award), the bonds, the general
conditions, permits from City or other agencies, the special provisions, the plans, standard
plans, standard specifications, reference specifications, the Approved Drawings and
Specifications, and all modifications issued after the execution of the subcontract(s), in
each case, in connection with the Project.
1.13. Cutoff Date. "Cutof Date" means one (1) year from the date of Acceptance of the Project.
1.14. CVMC. "CVMC" has the meaning given to such term in the Recitals.
1.15. DDA. "DDA" has the meaning given to such term in the Recitals.
1.16. DDA Close of Escrow. "DDA Close of Escrow" means Close of Escrow as such term is
defined in the DDA.
1.17. Defective Work. "Defective Work" means all work, material, or equipment that is
unsatisfactory, faulty, incomplete, or does not substantially conform to the Contract
Documents.
1.18, Design and Construction Standards. "Design and Construction Standards" means the
edition of the City -adopted Design and Construction Standards for public works projects
that is in effect when the Approved Drawings and Specifications are approved by the City
for purposes of the bids and which is available in the City's Department of Engineering
and Capital Projects and on the City's website.
1.1 g. Developer. "Developer" has the meaning given to such term in the preamble.
1.20. Develo er's Sewer Improvements. "Developer's Sewer Improvements" has the meaning
given to such term in the Recitals.
1.21. Director of Development Services. "Director of Development Services" means the
Director of Development Services of City or his or her designee.
1.22. District. "District" has the meaning given to such term in the Recitals.
3 City of Chula Vista Agrecnwnt No.: 1807$
RIDACHULA VISTA, LLC
1.23. Estimated Cost. "Estimated Cost" means the total cost of the design, development and
construction of the Developer's Sewer Improvements, as estimated by preliminary
engineering studies to total $1,195,000, as shown in Exhibit A attached hereto. As
Estimated Cost is not initially the result of competitive bids for the actual design,
development and construction, it is subject to change during the competitive bid process as
well as during the design and construction phases, subject to approval of the Parties.
1.24. Execution Date, "Execution Date" has the meaning given to such term in the preamble.
1.25. Final Accounting. "Final Accounting" has the meaning given to such term in Section 9.1.7.
1.26. General Contractor. "General Contractor" means a party or parties under any contract with
the Developer to perform the work or provide supplies for the Developer's Sewer
Improvements.
1.27. Greenbook. "Greenbook" means the 2012 edition of the Standard Specifications for Public
Works Construction.
1.28. Ground Lease. "Ground Lease" means that certain San Diego Unified Port District Lease
to RIDA Chula Vista, LLC of Property Located at Chula Vista, California to be executed
by the Developer and the District pursuant to the DDA.
1.29. Hazardous Materials. "Hazardous Materials" means hazardous waste or hazardous
substances as defined in any federal, state, or local statue, ordinance, rule, or regulation
applicable to the Property, including, without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (Title 42) United States
Code sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 united
States Code sections 6901-6992k), the Carpenter Presley -Tanner Hazardous Substance
Account Act (Health and Safety Code sections 25300-25395.15), and the Hazardous Waste
Control Law (Health and Safety Code sections 25100-25250.25). "Hazardous Materials"
shall also include asbestos or asbestos containing materials, radon gas, and petroleum or
petroleum fractions, whether or not defined as hazardous waste or hazardous substance in
any such statute, ordinance, rule, or regulation.
1.30. Holiday. "Holiday" means the City -observed holidays listed below (if any holiday listed
falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If
the holiday should fall on a Sunday, then the Sunday and the following Monday are both
legal holidays):
Holiday Observed On
New Year's Day January 1
Martin Luther King, Jr. Day `Third Monday in January
Caesar Chavez Day March 31
4 City or Chula Vista Agxeemew No.: 18075
RIGA CHUL.+1 VISTA, LLC
Memorial Day
Independence Day
Labor Day
Veteran's Day
Thanksgiving Day
Thanksgiving Day Friday
Christmas Day
Last Monday in May
July 4
First Monday in September
November 11
Fourth Thursday in November
Friday after Thanksgiving
December 25
1.31. Illegal Discharge. "Illegal Discharge" has the meaning given to such term in Section
14.1.3.
1.32. Maximum Reimbursement Amount. "Maximum Reimbursement Amount" means the
lesser of the Estimated Cost, as may be amended ti -urn time to time, or the amount of
Reimbursable Costs that is calculated during the Final Accounting (as defined below).
1.33. Non -Reimbursable Costs. "Non -Reimbursable Costs" means the following costs that shall
not be eligible for reimbursement under this Agreement: Costs Incurred Due to Negligence,
Unapproved Costs, Excess Costs, Non -Project Shared Costs, and Defective Work Costs
each as further defined in Section 9.1.5.2.
1.34. Notice of Completion. "Notice of Completion" means the standard document recorded by
the City upon completion of a public works project in accordance with City's standard and
customary practices.
1 35 Party. "Party" has the meaning given to such term in the preamble.
1.36. Payment Date. "Payment Date" means twenty (20) days following the date on which
Developer submits a complete Reimbursement Request (as reasonably determined by the
Director of Development Services) or a Reimbursement Request that is complete with
respect to a portion of the requested reimbursement (as reasonably determined by the
Director of Development Services).
1.37. Pre -Existing Hazardous Material: "Pre -Existing Hazardous Material" means any
Hazardous Material located on or under the Project Site prior to the Execution Date,
whether known or unknown, or any Hazardous Material located outside the Project site
(including any premises owned by the City) prior to the Execution Date that migrates to
the Project site thereafter.
1.38. Project. "Project" has the meaning given to such term in the Recitals.
1.39. Project Improvements. "Project Improvements" or "Improvements" means the
Developer's Sewer Improvements.
5 City of Chula Vista Agreement Na-: 1$075
RIDA CHU1.A VISTA, LLC
1.40. Project Site. "Project Site" means the location of the Project for purposes of pre -
construction services and construction.
1.41. Reimbursable Costs. "Reimbursable Costs" means costs of the design, development and
construction (including (i) the premium cost of property insurance, (ii) the premium cost.
of liability insurance, (iii) all other approved premium insurance costs, and (iv) property
insurance deductible, liability insurance deductible and self -insured retention (SIR) costs
not -to -exceed $25,000 per occurrence) of the Developer's Sewer Improvements that have
been expended by Developer and approved by the City through approval procedures
described in the Agreement.
1.42. Reimbursement Request. "Reimbursement Request" means a reimbursement request
package submitted to the City containing the items listed in Section 9.1.3.1.
1.43. Sewer Facility Contribution. "Sewer Facility Contribution" means the contribution by the
City to fund specific sewer facility improvements comprising part of the RHCC Public
Improvements described in Exhibit A attached hereto and as may be more specifically
described in the Plan of Finance (as defined in the DDA).
1.44. Sewer Income Fund. "Sewer Income Fund" means the fund designated as the "sewer
income fund" with respect to the Developer's Sewer Improvements pursuant to and in
accordance with CVMC Section 3.16.010.
1.45. Sewer Income Fund Eligible Expenses. "Sewer Income Fund Eligible Expenses" means
costs for which the City shall reimburse Developer from the Sewer Income Fund (or an
alternative source of funds identified by the City) for the design, development and
construction (including the cost of builder's risk insurance and all other insurance costs) of
the Developer's Sewer Improvements, not to exceed the Estimated Costs.
1.46. Sole Source Process. "Sole Source Process" has the meaning given to such term in Section
6.1.
1.47. Standard Specifications. "Standard Specifications" means the Greenbook, the local
standard special provisions referenced in the Approved Drawings and Specifications, and
any amendments thereto that are approved by the City_
1.48. Subcontractor. "Subcontractor" means a party or parties tinder any subcontract with the
General Contractor to perform the work or provide supplies for the Developer's Sewer
Improvements.
1,49. SWPPP. "SWPPP" has the meaning given to such term in Section 8.1.3.
1.50. Working Day(s). "Working Day(s)" means Monday through Friday, excluding Holidays.
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RIDA C'HlUL.,A VISTA, r,LC
ARTICLE II. SUBJECT OF THE AGREEMENT - GENERALLY
The above -listed Recitals are true and correct and are incorporated by this reference. All
attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.
2.1. Develot�er's Sewer Improvements. Except as expressly provided in this Agreement,
Developer shall cause the design and development of the Project Improvements in
accordance with the Schematic Plans (as defined in the DDA) for the development of Phase
IA Infrastructure Improvements (as defined in the DDA) that the District shall submit to
Developer pursuant to Section 4.4(b) of the DDA, and Developer shall cause the Project
Improvements to be constructed so that the Project Improvements are in accordance with
the applicable Contract Documents within the timeframe described in Section 5.1, in each
case, in accordance with all the terms and conditions of this Agreement and for the
Maximum Reimbursement Amount; provided, however, that the Developer shall have no
obligation to develop or construct any of the Project. Improvements unless and until DDA
Close of Escrow occurs in accordance with the DDA.
2.2. Complete and Functional Improvements. Developer shall provide complete and functional
Developer's Sewer Improvements that meet the Contract Documents and all other
applicable standards identified herein.
2.3. Maintain Until Acceptance. Following the completion of the Project Improvements,
Developer shall maintain the Project Improvements until the Acceptance.
2.4. City Pa ent. City shall reimburse Developer, in an amount not to exceed the Maximum
Reimbursement Amount and subject to the terms and conditions herein, for the Sewer
Income Fund Eligible Expenses of design, development, and construction of Developer's
Sewer Improvements. City acknowledges and agrees that all of the Estimated Costs
identified in Exhibit A are Sewer Income Fund Eligible Expenses. The City represents and
warrants to Developer that, as of the Execution Date, the aggregate amount of funds on
deposit in the Sewer Income Fund is equal to or greater than the Maximum Reimbursement
Amount and that the City will use its reasonable efforts to manage the Sewer Income Fund
in a manner so that the aggregate amount of funds on deposit in the Sewer Income Fund
during the term of this Agreement is sufficient to pay all Reimbursable Costs in accordance
with this Agreement. To the extent that the amount of funds in the Sewer Income Fund are
insumcient to pay all Reimbursable Costs. City shall identify alternative funds from which
to pay City's Sewer Facility Contribution obligation pursuant to the DDA.
ARTICLE III. DURATION OF AGREEMENT
3. 1. Term of Agreement. This Agreement shall become effective on the Execution Date, and
the term of this Agreement shall extend until the earlier of (i) such time as all executory
7 I City of Chula Vislii Agteemenl No.: 18075
RIDA CHULA VISTA, LLC
terms have been completed or (ii) earlier tenninat ion of this Agreement according to the
termination provisions herein.
ARTICLE IV. PROJECT COSTS
4,1. Estimated Cost. The Estimated Cost is one million dollars ($1,195,000), as shown in
Exhibit A attached hereto.
4.2. Adjustment to Estimated Cost. Estimated Cost is subject to change by the methods
identified below and those established elsewhere in this Agreement.
4.2.1. Revisions to the Estimated Cost. The City Manager or his/her designee shall review
complete sets of the drawings and specifications for the Developer's Sewer
Improvements promptly after Developer provides them to the City. In the event
that the City Manager or designee reviews the drawings and specifications for the
Developer's Sewer Improvements and determines that the cost of design,
development, and construction will exceed the then current Estimated Cost, the
Estimated Cost shall be increased to reflect the revised estimate in accordance with
subsection 4.2.2.
4.2.2. Adjustments Based on Other Cost Increases. The Estimated Cost may be increased
due to: (i) acts of God, acts of any governmental authority, the elements, war,
litigation, shortages of material, labor strikes, inflation, later commonly accepted
or adopted higher standards and specifications of construction, concealed or
unknown conditions encountered in the completion of Developer's Sewer
Improvements, or other cause beyond Developer's control; (ii) actual bids received
being greater than estimated; (iii) other factors not the result of unreasonable
conduct by Developer; or (iv) the presence of any Hazardous Material on the
Project Site (as defined in the DDA). Subject to the prior written approval by the
City Manager or his/her designee, which approval shall not be unreasonably
withheld, conditioned, or delayed, the Estimated Cost shall be increased by the
amount of the increase in the cost of the design, development, and construction of
the Developer's Sewer Improvements that are determined by the City Manager or
his/her designee (in such person's reasonable, good faith discretion) to be caused
by such events or circumstances.
4.2.3. Failure to Obtain Approval of increase. In any case where City Manager's
approval is required for an increase in the Estimated Cost and such approval is not
obtained, Developer shall have no obligation to incur costs in excess of the
Estimated Cost, City Manager shall not unreasonably withhold, condition or delay
its approval of any deductive change to the Project Improvements such that the
Project Improvements, as revised, can be completed for the Estimated Cost.
8 City oiChula Vista Agrccmcm No,: 18075
RIDA CI-IULA VISTA, LLC
4.3. Notification of Increased Costs. If, at any time, Developer definitively establishes that the
amount expended on the Project Improvements will exceed the Estimated Cost, Developer
shall promptly, and in any case not more than ten (10) Working Days after the Developer
definitively establishes the amount of the increase, notify the City thereof in writing. This
written notification shall include an itemized cost estimate and a list of recommended
revisions (e.g., deductive changes) which Developer believes will bring the cost to within
the Estimated Costs. The City may either: (i) approve an increase in Estimated Cost (which
approval shall not be unreasonably withheld, conditioned, or delayed) or (ii) reasonably
delineate a project which may be constructed for the Estimated Cost; provided that such
delineation does not have a material and adverse effect on the design, development, or
construction of the Developer's Private Improvements (as defined in the DDA) or the
Convention Center (as defined in the DDA); or (iii) any combination of (i) and (ii)_
ARTICLE V. PROJECT SCHEDULE
5.1. Project Schedule. Developer shall complete the Project Improvements by sixty (60)
months and ten (10) days after the commencement date of the Ground Lease (such
deadline to be extended by one day for each day the applicable deadline is extended
pursuant to and in accordance with the Ground -ease, including pursuant to any
amendment to the Ground Lease). No delay in the completion of the Project
Improvements shall excuse any failure by Developer to timely complete the Resort Hotel
and the Convention Center (as each such term is defined in the Ground Lease) in
accordance with the Ground Lease, except as set forth in the Ground Lease.
5.2. Unavoidable Delay. Each Party shall be entitled to an extension of the date of the
performance of any obligation required of such Party under this Agreement in the same
manner and to the same extent as provided in the Ground Lease.
ARTICLE VI. COMPETITIVE BIDDING AND EQUAL OPPORTUNITY
6.1. Compliance. Developer shall bid and award contracts and subcontracts to complete Project
in accordance with all applicable public contract laws, rules, and regulations, including but
not limited to those set forth in the City of Chula Vista Charter and Municipal Code,
including CVMC §2.56.16a(H) (Developer -Performed Public Works). Notwithstanding
anything to the contrary herein, the Parties agree that the Developer may (a) subject to
CVMC §2.56.160(H)(1)(b) (Developer -Performed Public Works), award the prime
contract for the Project to the General Contractor on a sole source basis pursuant to and in
accordance with CVMC §2,56.160(H)(1)(b) ("Sole Source Process") or, (h) subject to
CVMC §2.56.160(H) (Developer -Performed Public Works), award the prime contract for
the Project to the General Contractor by competitive bid or solicitation in accordance with
CVMC §2.56.160(H)(2)(d) (Developer -Performed Public Works) ("Competitive Bid or
Solicitation Process"). The Parties further agree that, in the case of the Sole Source
4I City of Chula Vista Agi em n No,: 18075
RIDACHULA VISTA, LLC
Process, the General Contractor for the Project shall award subcontracts for the Project to
Subcontractors by competitive bid or solicitation in accordance with CVMC
§2.56.160(H)(2)(d) (Developer -Performed Public Works) ("Competitive Bid or
Solicitation Process").
6.1.1. Proof ofAdvertising. In the case of any Competitive Bid or Solicitation Process,
Developer shall provide the City with proof that the Developer or the General
Contractor, as applicable, solicited competitive bids from the General Contractor
and/or Subcontractors, as applicable, in accordance with CVMC
§2.56.160(H)(2)(c) (Developer -Performed Public Works).
6.1.2. Prevailing Wage. Developer shall advertise the Project as requiring the payment
of prevailing wage and include all provisions in the advertisement and Contract
Documents as required by the California Department of Industrial Relations.
6.2. Bid Opening and Award. In the case of any Competitive Bid or Solicitation Process,
Developer shall provide City with a copy of the tabulation of competitive bid results with
respect to each contract and subcontract, as applicable. In the event that the best qualified
General Contractor's bid or Subcontractor's bid, as applicable, combined with a reasonable
amount for contingencies, exceeds the Estimated Cost, the increase in the costs may be
approved by the City Manager pursuant to Section 4.2.2 prior to awarding the prime
contract or the subcontract, as applicable. In the event the City Manager does not approve
the increased cost, this Agreement, at the City's option but subject to the next sentence,
may be terminated upon prior written notice thereof to Developer of not less than twenty
(20) days and the Project may be rebid andtor redesied. If the City notifies Developer
that it intends to exercise the termination option, then Developer shall have the right to pay
the amount in excess of the Estimated Cost ("Excess Cost"), in which case the City shall
no longer have the right to terminate this Agreement. Developer acknowledges and agrees
that payment of any Excess Cost shall not be a Reimbursable Cost under this Agreement.
In the event that the Agreement is terminated pursuant to this Section 6.2, the Developer's
design, development, and/or construction costs will be reimbursed to Developer from the
Sewer Income Fund for the actual Reimbursable Costs expended by Developer prior to
termination of this Agreement. Developer shall provide City with copies of all executed
contracts awarded in accordance with this Section 6.2.
6.3. Equal Employment Opportunities and Equal Opportunity Contracting,
6.3.1. Equal Employment Opportunity Nondiscrimination. Developer shall not
discriminate against any employee or applicant for employment on any basis
prohibited by law. Developer shall provide equal opportunity in all employment
practices. Developer shall instruct its consultants, subeonsultants, General
Contractor, and Subcontractors, to comply with this provision. Nothing in this
10 City or Chula Vista Agi�sanent Na.: ] 8G75
RIDA CHULA VISTA, LLC
subsection 6.3.1 shall be interpreted to hold Developer liable for any discriminatory
practice of its General Contractor, Subcontractors or any other party.
6.3.2. Equal Employment Opporluriity Certification, Developer shall require all bidders
to submit signed equal employment opportunity certifications', on forms approved
by the City, with their bid packages.
6.3.3. Equal Opportunity Contracting Nondiscrimination. Developer shall not
discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual
orientation, age, or disability in the solicitation, selection, hiring, or treatment of
bidders, the General Contractor, Subcontractors, vendors, or suppliers. Developer
shall provide equal opportunity for bidders, contractors, the General Contractor,
and Subcontractors to participate in contracting and subcontracting opportunities.
Developer understands and agrees that violation of this subsection 6.3.3 shall be
considered a material breach of this Agreement and may result in termination of
this Agreement, debarment, or other sanctions. The language in this subsection
6.3.3 shall be inserted in contracts between Developer, the General Contractor, any
Subcontractors, vendors, and suppliers awarded in accordance with Section 6.2.
ARTICLE VII. DESIGN AND CONSTRUCTION STANDARDS
7.1. Standard of Care. Developer agrees that it will require that the services provided as part
of this Agreement be performed in accordance with the standards customarily adhered to
by experienced and competent professional architectural, engineering, landscape
architecture, and construction firms (as applicable) using the degree of care and skill
ordinarily exercised by reputable professionals practicing in the same field of service in the
State of California.
7.1.1. Compliance with all Laws. Developer shall comply, and require compliance by
any of its General Contractor, Subcontractors, employees, and agents, with all laws,
including but not limited to all local, City, San Diego County, State of California,
and federal laws, codes and regulations, ordinances and written publicly available
policies, including, but not limited to, Development Services Department permits,
hazardous material permits, site safety, state and local building codes, stormwater
regulations, etc.
7.2. Compliance with Design and Construction Standards. Developer shall comply, and require
compliance by any of its General Contractor, Subcontractors, employees, and agents, with
the Design and Construction Standards.
' NTD: City to provide standard certifications for Developer's review.
11 I City of Chula Vista Agixetuefl Ni.: I
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7.2.1. Standard Specifications. Developer shall comply, and require compliance by any
of its General Contractor, Subcontractors, employees, and agents, with the editions
of the following reference specifications that are in effect as of the date ❑f the
approval of the Approved Drawings and Specifications for purposes of the bids
when designing, developing, and constructing the Project: the Greenbook and the
regional and any local supplement amendments thereto that are listed on Exhibit B
attached hereto.
7.2.1.1.City Standards. Developer's professional services shall be provided in
conformance with the professional standards of practice established by City. This
includes amendments and revisions of these standards as adopted by City. The
professional standards of practice established by City include the Standard
Specifications and the Approved Drawings and Specifications.
7.3. Changes to Standards. Developer shall not be required to comply, nor to cause any of its
General Contractor, Subcontractors, employees, and agents to comply, with any design
standard or any construction standard or any amendment, update, supplement or other
modification to the Design and Construction Standards after the date of the approval of
the Approved Drawings and Specifications for purposes of the bids.
7.4. City Approval Not a Waiver of Obligations. Where approval by the City, the City
Manager, or other representatives of City is required, it is understood to be general approval
only and does not relieve Developer of responsibility for complying with all applicable
laws, codes, and good consulting, design, or construction practices and is not an assumption
of liability by the City, except in the case of City's express waiver of the requirement to
comply with (a) any City requirement, to the extent such requirement is waivable, or (b)
any good consulting, design, or construction practice. Nor shall City, through approval,
become an insurer or surety of work associated with the approvals.
ARTICLE VIII. CONSTRUCTION
8.1. Site Safety, Security, and Compliance. Developer shall be responsible for Project Site
safety, security, and compliance with all related laws and regulations.
8.1. I. Persons. As between the Developer and the City, and without expanding the
Developer's contractual obligations or duties to any person other than the City, the
❑eveloper shall be fully responsible for the safety and security of its officers,
agents, and employees authorized by Developer to access the Project Site.
8.1.2. Other. Developer is responsible for Project Site, materials, equipment, and all other
incidentals on the Project Site until the completed Project has been accepted by the
City pursuant to Article X,
12 City of Chula Vista Agreement No.: 18075
RIDA (HULA VISTA, LLC
8.1.3. Environment. Developer shall comply with all environmental laws and regulations,
including the Clean Air Act of 1970, the Clean Water Act, Executive Order number
11738, and the Stonnwater Management and Discharge Control Ordinance No. 0-
17988 and any and all Best Management Practice ("BMP") guidelines and pollution
elimination requirements as may be established by an enforcement official.
Furthermore, Developer shall prepare and incorporate into the drawings and
specifications a Stormwater Pollution Prevention Plan ("SWPPP") to be
implemented by Developer during Project construction and, until Acceptance,
maintenance. Where applicable, the SWPPP shall comply with both the California
Regional Water Quality Control Board Statewide General Construction Storm
Water permit and National Pollution Discharge Elimination System permit
requirements and shall be in conformance with the City of Chula Vista BMP Design
Manual and CVMC Chapter 14.20 (Storm Water Management and Discharge
Control).
8.1.4. Access to Project Site. City officers, agents, and employees that have Project -
related business shall have the right to enter the Project Site at any time for Project
related purposes; provided that such person complies with all written applicable
security and safety procedures provided by Developer to City, written instructions
given by Developer to City and oral instructions given by Developer or the General
Contractor to such person on the Project Site, and uses commercially reasonable
efforts to minimize any interference with Developer's operation and use of the
Project Site while on the Project Site.
8.2. Public Right -of -Way. All work, including materials testing, special testing, and surveying
to be conducted in the public right-of-way shall be coordinated with the City.
8.2.1. Follow all Laws, Rules, and Regulations. Developer agrees to follow all Federal
and State laws and regulations, and all written and publicly available City standards
and regulations while working in the public right-of-way, including, but not limited
to, utilizing proper traffic control and obtaining necessary permits.
8.3. Traffic Control. Developer shall comply with all written traffic control requirements for
Project, including, if applicable, all traffic control plans and/or notes.
8.4. Maintenance. Developer shall maintain and be responsible for the Project and the Project
Site until Acceptance, including ongoing erosion prevention measures. Upon Acceptance,
City shall be responsible for maintenance of the Project.
ARTICLE IX. REIMBURSEMENTIPAYMENT OF COSTS AND EXPENSES
9.1. Payment of Costs Associated with Project
13 1 City of Chula Vista Agreement No.: 18075
RIDA CHtfLA VISTA, LLC
9.1.1. Maximum Reimbursement Amount. The maximum amount of reimbursement for
Project shall not exceed the Maximum Reimbursement Amount. Neither
Developer nor the General Contractor nor any Subcontractor, nor any combination
thereof, shall be entitled to payment in excess of the Maximum Reimbursement
Amount.
9.1.2. Funds for Payment of Costs/Expenses. The source of funds for the payment of
costs/expenses associated with Project shall be limited to that listed below. No
other City funds, or monies held by, owed to, or in trust for, the City, shall be used
by the City or sought to be collected by Developer, its employees, agents, the
General Contractor, or Subcontractors other than those identified in Section 9.1.2.1.
9. I.2.1. Funds for Project. Funds for payment of costslexpenses for Project shall
be limited to the City's Sewer Facility Contribution.
9.1.3. Prerequisites to Payment.
9.1.3.1. Reimbursement Request_ Prior to reimbursement of any costs or expenses
for the Project, Developer shall provide the City with a Reimbursement
Request containing the following:
a. Invoices. Developer shall provide the Director of Development
Services all invoices for Reimbursable Costs associated with
Project, not previously paid by the City, within 30 days after receipt
thereof
b. Proof of Payment. Developer shall provide the Director of
Development Services with proof of payment of all invoices for
Reimbursable Costs submitted within 30 days alter such payment.
c. Lien Releases/Stop Payment Notices. Developer shall provide the
Director of Development Services with statutory lien/stop payment
notice releases associated with all work performed or supplies
provided in a form satisfactory to the City Attorney.
d. Certification of Payment. Developer shall provide the Director of
Development Services with a written certification that all trade and
soft costs for which Developer is seeking reimbursement have been
paid.
e. Certification of Prevailing Wage Compliance. Developer shall
provide the Director of Development Services with a written
14 City of C]nda Vida Agreement No.: 18075
RIDA CHULA VISTA, LLC
certification of compliance with all applicable Prevailing Wage laws
and regulations.
f. Acknowledgement of General Contractor and Subcontractors.
Developer shall provide the Director of Development Services with
a letter from each fine (e.g. civil, survey, and geotechnical)
acknowledging that eligible soft costs included in the relevant
invoices have been paid.
g. Time sheets. Developer shall provide the Director of Development
Services with time sheets from Developer's construction manager
to justify the Project management costs.
h. Graphics. Developer shall provide the Director of Development
Services with a graphic depicting the areas within the Project for
which the Reimbursement Request is being submitted.
Other Documents. Developer shall provide the Director of
Development Services with any other documents that reasonably
may be needed to evaluate the eligibility of the cost/expense as
Reimbursable Costs as determined necessary by the Director of
Development Services in his/her sole discretion.
City shall not have an obligation to make payment to Developer unless
and until Developer provides the Director of Development Services with
a Reimbursement Request containing all of the applicable items listed
above and such Reimbursement Request is approved by the Director of
Development Services as provided below.
9.1.3.2. Inspection. The Project shall be subject to City inspection as provided in
section 2.11 of the Greenbook. Developer shall ensure that all persons
and entities providing work or services for the Project comply with the
inspection requirements provided in section 2-11 of the Greenbook.
9.1.3.3. Prevailing Wage Compliance. Developer shall ensure that all persons and
entities providing work or services for the Project comply with Prevailing
Wage requirements, as established by the California Department of
Industrial Relations, as applicable, in accordance with applicable law.
9.1.3,4. City Approval. The Director of Development Services shall review each
Reimbursement Request and the supporting documentation. if the
Director of Development Services finds that any such Reimbursement
15 City DI Chiila Visla Agnranent No.: 18075
RIDA ('HULA VISTA, LLC
Request is incomplete, improper, or otherwise not suitable for
reimbursement, then the Director of Development Services shall so
inform Developer in writing within fifteen (15) Working Days after
receipt thereof, of the reasons for his/her finding. If the Director of
Development does not find that any such Reimbursement Request is
incomplete, improper, or otherwise not suitable for reimbursement, then
the Director of Development Services shall so inform Developer in
writing within fifteen (15) Working Days after receipt thereof and within
that time period approve the Reimbursement Request. Developer shall
have the right to respond to such finding by submitting further
documentation requested in such finding after receipt of said finding. The
Director of Development Services shall review any further documentation
received from Developer in support of the Reimbursement Request and
inform Developer of his/her approval or denial of the Reimbursement
Request within ten (10) Working Days after receipt or such further
documentation. If the Director of Development Services determines that
the Reimbursement Request is incomplete, but that sufficient and
complete information exists with respect to a portion of the
Reimbursement Request, then the Director of Development Services may
but is not obligated to approve the Reimbursement Request with respect
to such portion of the Reimbursement Request. The City shall cause the
Director of Development Services to carry out its duties under this Section
9.1.3.3 in a reasonable and good faith manner.
9.1.4. Time of'Payment. After Developer has obtained City's approval pursuant to 9.1.3,
City shall reimburse Developer for the approved costs/expenses associated with
each Reimbursement Request by the Payment Date, If the Payment Date falls on a
weekend or holiday, the Payment Date shall be extended to the next Working Day.
9.1.4.1. Additional Costs. Any costs that may accrue, such as interest on late
payments to Developer's Genera! Contractors, Subcontractors, or
suppliers as a result of the Developer's failure to provide a complete
Reimbursement Request, shall not be the obligation of the City if the City
has not received a complete Reimbursement Request. Such additional
costs shall be the obligation of the Developer and not eligible for
reimbursement.
9.1.5. Reimbursement Amount per Reimbursement Request. The City shall pay Developer
approved amounts in the Reimbursement Request, less any Non -Reimbursable
Costs and Contested Charges (as defined below) on or before the Payment Date. If
the Payment Date falls on a weekend or holiday, the Payment Date shall be
14 C-iiy ofChula vista Agreement No.: 18075
RID.k C14ULA VISTA, I.LC
extended to the next Working Day. Additional costs that result from the City's
failure to make payments when required by this Agreement will be the obligation
of the City.
9.1.5.1. Withholding. The prime contract and subcontracts for the Project may
provide for withholding from each payment to the General Contractor or
the Subcontractor, as applicable, until Acceptance. Except as otherwise
provided in this Agreement or at law, the City shall not withhold any
additional amounts from the Reimbursement Requests submitted by
Developer, beyond the actual General Contractor or Subcontractor
withholding amount.
a. Payment and Invoicing for Withholding. Developer shall not pay
the General Contractor and the Subcontractors the amounts withheld
until (I) forty-five (45) calendar days from recordation of the Notice
of Completion and (2) confirmation has been submitted to the
Director of Development Services by Developer that no stop
payment notices or mechanic's liens have been filed and not
released with respect to the Project and the following work has been
completed_
i. All Project improvements have been installed.
ii. As-builts have been submitted to the City.
iii. Form PWEIO� is completed.
iv, The final punch list is complete.
Where a stop payment notice or mechanic's lien has been filed following
the recordation of the Notice of Completion, Developer shall continue to
withhold the amount in controversy until a fully executed release of stop
payment notice or mechanic's lien or a bond releasing the stop payment
notice or mechanic's lien has been filed and a conformed copy delivered
to the City. Notwithstanding anything in this Agreement to the contrary,
Developer shall not be required to withhold any funds from the General
Contractor or any Subcontractor to the extent doing so would violate any
applicable law.
9.1.5.2. Non -Reimbursable Costs. The fallowing costs/expenses shall not be
eligible for reimbursement under this Agreement.
a. Costs Incurred Due to Negligence. Developer shall not be entitled
to payment for any incremental cost or expense incurred due to
negligent acts, negligent omissions, or willful misconduct of
171 City of Chula Vista Agrccmcnt Na.. 18075
RIDA CHULA VISTA, LLC
Developer, the General Contractor, or Subcontractors, or any of
their respective subcontractors, material suppliers, equipment
providers, employees, or agents.
b. Unapproved Costs, Developer shall not be entitled to
reimbursement for any cost or expense that has not been approved
by the City pursuant to Section 9.1.3.3.
c. Excess Costs. Developer acknowledges and agrees that any Excess
Cost (as defined in section 6.2 of this Agreement) shall not be a
Reimbursable Cost.
d. Non -Project Shared Costs, The parties acknowledge that Developer
may share certain costs (e.g. mobilization, traffic control) for the
Project with other projects contemplated under the DDA. Developer
acknowledges and agrees that any shared project costs that are not
directly attributable to or reasonably apportioned to the Project, as
reasonably determined by the City, shall not be a Reimbursable
Cost.
e. Defective Work Costs. Developer acknowledges and agrees that
defective work costs as provided in Section 12.3 of this Agreement
shall not be a Reimbursable Cost.
9.1.5.3. Contested Charges. In the event that the City contests any costs/expenses
on an invoice received ("Contested Charge"), the City shall provide
Developer a written statement of the Contested Charges, the reason why
the costs/expenses are contested, and a proposed resolution.
a. Appeal to City Manager. Developer may appeal the City's
determination of any Contested Charges. The appeal must be
received within 30 days after the City notifies the Developer of such
Contested Charge. During the appeal period, and as long as any
Contested Charge remains disputed, Developer shall proceed with
the Project, and the City shall compensate Developer for the
undisputed amounts. If, following the appeal, the City Manager
determines that any Contested Charges are eligible for
reimbursement, such amounts shall be included in the next payment
to Developer.
9.1.6. Cutoff fbrSubmission of'Invoices. Developer shall submit its final Reimbursement
Request not later than the Cutoff Date. Any Reimbursement Requests submitted
18 City of Chula Vista Agreement No.: 18075
RII7A CHULA VISTA, LLC.
after the Cutoff Date shall not be reviewed or included in Reimbursable Cost, The
final payment by the City for the Project will be made only after Developer has
submitted all documentation reasonably necessary to substantiate the cost of
construction and completing the Improvements associated with that phase,
mechanic's lien free, stop payment notice free, in accordance with the Contract
Documents, Final inspection and sign -off by the City's inspectors with associated
mechanic's lien and stop payment notice releases (or bonds releasing contested
mechanic's liens or stop payment notices) shall be sufficient evidence of the
mechanic's lien or stop payment notice free completion of the Improvements.
9.1.7. Final Accounting. Following completion of the Project, Developer shall submit a
final accounting ("Final Accounting") to the City in order to determine the cost of
design, development, construction, and related work thereto to complete the
Improvements. Developer shall also submit all supporting information reasonably
necessary to document costs/expenses for the Improvements, including specific
details on the costs and work attributable to the Improvements, including, as
applicable, third -party invoices, billings, and receipts for construction surveying,
soil testing, blue printing, actual construction costs, and similar expenses.
9.1.7.1. True -up Payments. Within 30 Working Days following a Final
Accounting, the City shall determine whether the actual payments made
to Developer equal the audited approved costs and expenses. In the event
that the amount of the approved costs and expenses exceeds the amount
of the actual payments, the City shall make a true -up payment to
Developer for the difference; however, in no event, shall the true -up
payment cause the total amount paid to exceed the Maximum
Reimbursement Amount. If the Final Accounting shows that the amount
of actual payments to Developer exceeds the amount of the approved costs
and expenses. Developer shall remit or cause the remittance of the
difference to the City within twenty (20) Working Days of a notice of
deficiency.
ARTICLE X. PROJECT ACCEPTANCE AND FINAL COMPLETION
10.1. No Waiver. Developer shall cause the work to be performed and completed in accordance
with the Contract Documents, as reasonably determined by the City Engineer and the
Director of Development Services. Neither recommendation of any progress payment or
acceptance of work, nor any payment by City to Developer under this Agreement, nor any
use or occupancy of the Improvements or any part thereof by the City, nor any act of
acceptance by the City, nor any failure to act, nor any review of a shop drawing or sample
19 1 City or Chula Vista Agi Bement No.: 18071
RIDA CFHULA VISTA. Ll.C
submittal, will constitute an acceptance of work, which is not substantially in accordance
with the Contract Documents.
ARTICLE XI. WARRANTIES
11.1. Enforcement of Warranties. Developer shall enforce for the City's benefit all warranties
provided in the Contract Documents and any other implicit or explicit warranties or
guarantees required or implied by law.
11.1.1. Materials and Workmanship. Developer shall require the General Contractor and
Subcontractor(s) to guarantee all work on the Project against Defective Work for a
period of one (1) year from the date of Acceptance.
11.1.2.New Materials and Equipment. Developer shall require the General Contractor and
Subcontractor(s) to warrant and guarantee to City that all materials and equipment
incorporated into the Project are new unless otherwise specified.
11.1.3. Design, Construction, and Other Defects. Developer shall require the General
Contractor and Subcontractor(s) to warrant and guarantee to City that all work is in
accordance with the Contract Documents and is not Defective Work in any way in
design, construction, or otherwise.
11.2. Term of Warranties. Unless otherwise specified or provided by law, warranties shall
extend for a term of one (1) year from the date of Acceptance.
ARTICLE XII. DEFECTIVE WORK
12.1. Correction, Removal, or Replacement. The Developer shall require that if, within the
designated warranty period, or such additional period as may be required by law or
regulation, the City determines the Project contains Defective Work, the General
Contractor or applicable Subcontractor, as applicable, shall promptly and in accordance
with the City's written instructions and within the reasonable time limits stated therein,
either correct, repair, or both remove and replace the Defective Work.
12.2. City's Right to Correct. If circumstances warrant, including but not limited to an
emergency or the Developer's failure, the General Contractor's failure, or such
Subcontractor's failure, as applicable, to adhere to Section 12.1, City may correct, remove,
or replace the Defective Work. In such circumstances, the Developer, the General
Contractor, and such Subcontractor(s), as applicable, shall not recover costs associated
with the Defective Work.
12.3. Non -Reimbursable Costs. Any costs incurred by Developer, the General Contractor,
Subcontractors or its agents to remedy defects are Non -Reimbursable Costs, unless the
20 CityofCltula Vista Agreement No.: 15075
RIDA CHULA VISTA, LLC
Contract Documents require the Developer to reimburse for such costs. Notwithstanding
the foregoing, for the avoidance of doubt, the parties acknowledge and agree that the
following shall constitute Non -Reimbursable Costs: (i) costs to remedy defects due to the
negligence of the General Contractor, Subcontractors, or their agents; (ii) costs to remedy
defects due to the failure of General Contractor, Subcontractors, or their agents to comply
with the Contract Documents to the extent such costs exceed the guaranteed maximum
price contained in the Contract. Documents, or (iii) costs to remedy defects where such
costs have been recovered from an alternate source (e.g. insurance or bond). If the City
has already reimbursed Developer, the General Contractor, Subcontractors or its agents, as
applicable, for the Defective Work, City is entitled to an appropriate decrease in
Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against
Developer's bond, if Developer, the General Contractor, Subcontractors or agents, as
applicable, have been paid in full, until the Defective Work is remedied unless the Contract
Documents require the Developer to reimburse for such costs.
1 2.4. Extension of Warranty. When Defective Work, or damage therefrom, has been corrected,
repaired, replaced or removed, as applicable, during the warranty period, the one (1) year
or another relevant warranty period, as applicable, will be extended for an additional time
period equal to that of the initial warranty period, from the date of the satisfactory
completion of the correction, repair, replacement or removal, as applicable, but, in no
event, beyond one (1) year from the date of the expiration of the initial warranty period.
12.5. No Limitation on Other Remedies. Exercise of the remedies for Defective Work pursuant
to this Article XII shall not limit the remedies City may pursue under this Agreement or at
law.
12.6. Disputes. If Developer and City are unable to reach agreement on disputed work, City may
direct Developer to proceed with the work and compensate Developer for undisputed
amounts. Payment of disputed amounts shall be as later determined in accordance with
9.3.5.3. Developer shall maintain and keep all records relating to disputed work for a
period of three (3) years in accordance with Article XIV.
ARTICLE XIII. SECURITY FOR CONSTRUCTION
13.1- Bond. The Contract Documents shall require the General Contractor or Subcontractors to
provide a payment bond and a performance bond, on forms acceptable to the City, for the
construction of the Project in an amount of no less than the Estimated Cost. Developer
shall cause the City to be named as a co -obligee of the payment bond and performance
bond. Developer shall deliver copies of the payment bond and performance bond to City
prior to commencement of construction for the Project. Developer shall ensure the
payment bond and performance bond are maintained until such time as the Project is
complete and Accepted by the City.
21 City o1Chula Visla Agreeu itt No,; 18075
RIDA CHULA VISTA. LLC'
13.2. Insolvency or Bankruptcy. If the surety on any of the above -mentioned bonds 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, Developer shall within five (5) Working Days after the
City notifies the Developer thereof substitute or require the substitution of another bond
and surety, reasonably acceptable to the City.
13.3. Calling the Bond. Developer acknowledges and agrees that if Developer's construction of
the Improvements has not been completed in accordance with Section 5.1, has not been
performed in accordance with the Contract Documents, or if the Developer has failed to
cure any Defective Work within the commercially reasonable time specified in a written
notice of defect, the City may use the security referenced in Section 13,1 above to complete
the Improvements. This remedy is not a limitation on remedies of the City and is in
addition to any other remedy that the City may have at law or in equity.
ARTICLE XIV. INDEMNITY AND DUTY TO DEFEND
14.1. Defense, Indemnity, and Hold Harmless.
14.1.1. General Requb-emenl. (a) Developer shall defend, indemnify, protect, and hold
harmless (collectively, "Indemnify") the City, its elected and appointed officers,
agents and employees (collectively, the "Indemnified Parties"), from and against any
and all claims, demands, causes of action, costs, expenses, liabilities, loss, damages,
and injuries (collectively, "Loss"), in law or equity, to property, including takings
claims, or persons, including wrongful death, to the extent and proportion directly or
indirectly caused by any negligent acts or negligent omissions, or negligence or
willful misconduct of Developer, its officials, officers, the General Contractor,
Subcontractor(s), agents, or employees arising out of or in connection with the
performance of the Project or this Agreement; provided, however, Developer shall
have no obligation to Indemnify the Indemnified Parties for any Loss that arises out
of any design or other defect in connection with the Project more than ten (10) years
after Acceptance.
(b) This indemnity provision does not include any claims, damages, liability, costs
and expenses (including without limitations, attorneys' fees) arising from the sole
negligence, active negligence or willful misconduct of the City, its officials,
officers, agents or employees.
(c) Also covered by this provision is liability arising from, connected with, caused
by, or claimed to be caused by the active or passive negligent acts or negligent
omissions of the City, its agents, officers, officials or employees which may be in
combination with, and to the extent and proportion caused by, the active or passive
22 City of Chula Vida Agreement m4o.; 18075
RIDA CHULA VISTA, LLC
negligent acts or negligent omissions of Developer or its officials, officers, the
General Contractor, Subcontractor(s), agents, or employees.
14.1.1.1. Damage to Downstream or Adjacent Properties. 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 and to the extent of and
proportion caused by the negligence by Developer, its officials, office><s,
the General Contractor, Subcontractor(s), agents, or employees in the
construction of the improvements in accordance with the Contract
Documents 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 and to the extent of and proportion
caused by the negligence by Developer, its officials, officers, the General
Contractor, Subcontractor(s), agents, or employees in the construction of
the Improvements in accordance with the Contract Documents.
14.1.2. Hazardous Materials. (a) Developer agrees to defend, indemnify, and hold
harmless, the City, its agents, officers and employees from and against any and all
costs, damages, claims, and liabilities, including reasonable attorney fees,
foreseeable or unforeseeable, directly or indirectly, arising from or related to the
release of Hazardous Materials by Developer, its officials, officers, the General
Contractor, Subcontractor(s), contractors, agents, or employees in association with
the construction, maintenance, or repair of the Project, or any act taken or omission
under the Agreement.
(b) Notwithstanding the foregoing, Developer shall have no obligation to
indemnify any Indemnified Party for any Loss related to any Pre -Existing
Hazardous Material except to the extent Developer, any of its officials, officers, the
General Contractor, Subcontractor(s), contractors, agents, or employees, or any
combination thereof, is negligent in releasing, allowing a release, or causing a
release of such Pre -Existing Hazardous Material. Developer expressly preserves
its rights against other parties and does not release or waive its rights to contribution
against any other party.
14.1.3. Illegal Discharge to &or►n Drains, Developer shall defend, indemnify, protect, and
hold harmless City, its agents, officers, and employees, from and against all claims
asserted, or liability established for damages or injuries to any person or property
resulting from a discharge to public storm drains in violation of applicable laws to
the extent arising out of the construction of the Improvements (an "Illegal
23 City of Chula Vista Raiment Ni,.: 18075
H1DA C14ULA VISTA, LLC
Discharge") caused by any action or failure of Developer, its officials, officers, the
General Contractor, Subcontractor(s), agents, or employees to take reasonable
measures to prevent an Illegal Discharge or any Illegal Discharge by any such
persons or entities. Developer shall also be responsible for payment of any fines or
penalties assessed against City for an Illegal Discharge. Developer's duty to
indemnify and hold harmless shall not include any claims or liability arising from
the established sole negligence or willful misconduct of City, its officials, officers,
agents or employees.
14.1.4. Costs of Defense and Award. Developer shall immediately accept all tenders and
defend, at Developer's own cost, expense and risk, any and all claims, demands,
suits, actions, or other legal or administrative proceedings that may he brought or
instituted against the City, its officials, officers, employees and/or agents and that
appear to be covered by the defense obligation defined in Section 14.1.1(a),
14.1.1(c), 14.1.1.1, 14.1.2(a), or 14.1.3. Developer acknowledges and agrees that
its obligation to accept tender and defend the City, its officials, officers, employees,
and/or agents as provided in this Section 14.1.4 is absolute and not subject to any
limitations in Sections 14.1.1(b) and 14.1.2(b) of this Agreement, or elsewhere.
Developer shall pay and satisfy any judgement, award, or decree that may be
rendered against City or its officials, officers, employees and/or agents, for any and
all related legal expense and costs incurred by each of them to the extent of
Developer's actual determined negligence, subject to the limitations in Sections
14.1.1 and 14.1.2 and only to the extent Section 14.1.1 or 14.1.2 requires Developer
to do so. The City may, in its reasonable discretion, participate in the defense of
any and all suits, actions, or other legal proceedings that may be brought or
instituted against the City, its officials, officers, employees and/or agents, and the
Developer shall have the obligation to reimburse the City for any costs of defense
incurred by the City, including, without limitation, reimbursement for attorneys'
fees, experts' fees and other costs. Prior to incurring any defense costs, City agrees
to notify Developer and offer to meet -and -confer with Developer to discuss
practicable measures to manage total defense costs. The City's participation shall
not relieve the Developer of any of its obligations under this Article XIV.
14.1.5. Insurance Proceeds. Developer's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its officials, officers, employees
and/or agents.
14.1.6. No Use of Security. The security identified in Article XIII shall not be used to
satisfy the obligations of Developer under this Article XIV.
24 City of Chula Visla Agncemcnt No.: 18475
FUDA C1 [ULA VISTA, L.LC
14.1.7. Declarations. Developer's obligations under Article XIV shall not be limited by
any prior or subsequent declaration by Developer.
14.1.8. Enforcement of Costs. Developer agrees to pay any and all costs, including
attorneys' fees, that the City incurs enforcing the indemnity and defense provisions
set forth in Article XIV.
14,1.9. Suri.ive d. Developer's obligations under Article XIV shall survive the expiration
and/or termination of this Agreement.
ARTICLE XV. INSURANCE REQUIREMENTS
15.1. Insurance R uirements. Developer shall, and shall require its architects, engineers,
contractors, subcontractors, and other persons and entities providing services for or
performing work on the Project to purchase and maintain insurance in the same manner
and to the same extent as required by Section 4.10 of the DDA. The parties agree to meet -
and -confer to try to identify insurance coverage to cover losses to Project supplies,
materials, and equipment prior to Acceptance.
ARTICLE XVI. RECORDS AND AUDITS
16.1. Retention of Records. Developer shall maintain data and records related to this Agreement
f'or a period of not less than three (3) years following receipt of final payment under this
Agreement.
16.2, Audit of Records. At any time during normal business hours and as often as the City deems
necessary, Developer, the General Contractor and any or all of Subcontractors shall make
available to the City for examination at reasonable locations within the City/County of San
Diego all of the data and records with respect to all matters covered by this Agreement.
Developer, the General Contractor and Subcontractors will permit the City to make audits
of all invoices, materials, payrolls, records of personnel, and other data and media relating
to all matters covered by this Agreement. If records are not made available within the
City/County of San Diego, then Developer shall pay all the City's travel related costs to
audit the records associated with this Agreement at the location where the records are
maintained. Such costs will not be Reimbursable Costs.
16.1.1. Costs. Developer and Developer's agents shall allow City to audit and examine
books, records, documents, and any and all evidence and accounting procedures
and practices that City reasonably determines are necessary to discover and verify
all costs of whatever nature, which are claimed to have been incurred, anticipated
to be incurred, or for which a claim for additional compensation or for extra work
have been submitted under this Agreement.
25 City of Chula Vista Abreemcst No.: 18075
RFDA CIHULA VISTA, LLC
ARTICLE XVII. MISCELLANEOUS PROVISIONS
17.1. Notices. All notices and demands given pursuant to this Agreement shall be written. They
shall be deemed served (i) immediately, upon persona] delivery; (ii) the next. Working Day,
if sent prepaid by recognized overnight service such as FedEx for delivery the next
Working Day; or (iii) three (3) Working Days after deposit in the United States mail,
certified or registered mail, return receipt requested, first-class postage prepaid. Until
notice of a change of address is properly given, notice shall be given:
If to City: City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
Chula Vista, California 91910
If to Developer: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Legal Department
With a copy to: Latham & Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
17.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do
not define, describe or limit any term of this Agreement.
17.3. Entire Agreement. This Agreement embodies the entire agreement and understanding
between the Parties regarding the subject matter hereof. No prior or contemporaneous oral
or written representations, agreements, understandings and/or statements regarding its
subject matter shall have any force or effect. This Agreement is not intended to supersede
or amend any other agreement between the Parties unless expressly noted. However, all
previous written agreements, remain in full force and effect except to the extent they
conflict with this Agreement.
26 Cily ofCh 4 Vista Agrccm nl No, 18475
RIDA CHU LA VISTA, LLC
17.4. Severability. If any provision of this Agreement or its particular application is held invalid
or unenforceable, the remaining provisions of this Agreement, and their application, shall
remain in full force and effect, unless a Party's consideration materially fails as a result.
17.5. Recordation. The City may record this Agreement in the Office of the County Recorder of
San Diego County, California.
17.6. Preparation ofA eement. No inference, assumption or presumption shall be drawn from
the fact that a Party or its attorney drafted this Agreement. It shall be conclusively
presumed that all Parties participated equally in drafting this Agreement.
17.7. Authority. Each Party warrants and represents that it has legal authority and capacity to
enter into this Agreement, and that it has taken all necessary action to authorize its entry
into this Agreement.
17.8. 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.
17.9. Governing Law and 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 shall be the City of San Diego.
17.10. Administrative Claims. 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 CVMC, 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 City in the implementation of'same.
17.11. Non -liability of City Officials and Employees. No member, official, employee or
consultant of the City shall be personally liable to Developer in the event of any default or
breach by City, or for any amount which may become due to Developer, or on any
obligations under the terms of this Agreement.
17.12. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be the original and all of which shall constitute one and the same document.
I End of page. Signature page follows this page.)
27 l City cif Chula Vista Agreement No.: 18875
I RIDA CHULA VISTA. LLC
2 City of Chu 3a Vista Agreement No.: ]075
RIDA Cl IULA VISTA, Ii.C
IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and
year first set forth above.
CITY
10] 3 L4
CITY OF CHULA VISTA, a California RIDA CHULA VISTA, LLC, a Delaware
charter city and municipal corporation limited liability company
California Contractor License Number:
1039979
By:
Gary Halbert, City Manager
ATTEST.
By:
Kerry Bigelow, City Clerk
APPROVED AS TO FORM:
By:
Glen R. Goggins, City Attorney
* Signatories to provide signature authority
for signatory.
29 r City of Grub Vista Agreement No.: ISD75
` RIDA CFIULA VISTA. LLC
Exhibit A
Estimated Cost
Sewer
Improvement Description
Improvement Cost
Estimate'
E Street (G Street to H Street)
730,000
G Street Connection
85,000
H-3 Utility Corridor
380,000
Total
1,195,000
' Cost estimates are in 2019 dollars. Estimates include hard costs, soft costs, and continencies.
30 City of Chula Visla Agreement No.: 18075
RICA CHULA VISTA, LLC
Exhibit B
Amendments to the Greenbook
311 City of Chula Vista Agreement No.: 18075
RIDA CHULA VISTA, LLC
September 10, 2019File ID: 19-0432
TITLE
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDED
AND RESTATED AGREEMENT AND ALL ASSOCIATED DOCUMENTS MEMORIALIZING A STATE
DENSITY BONUS PURSUANT TO GOVERNMENT CODE SECTION 65915 ET SEQ. BETWEEN THE
CITY AND HAMILTON PLAZA LTD, INCLUDINGALLOWINGTHE RENTAL OF DWELLING UNITS AT
AN AFFORDABLE RENT UNTIL THEY ARE SOLD AT AN AFFORDABLE SALES PRICE AT KINGSWOOD
MANOR
RECOMMENDED ACTION
Council adopt the resolution.
SUMMARY
In May 2000 and subsequently in June 2010, the City approved the construction of an additional 10
residential units to an existing 40-unit apartment development known as Kingswood Manor, with 17 of the
units to be set aside as affordable for sale to lower and moderate-income households in accordance with
State Density Bonus Law, Government Code Section 65915 et seq (“State Density Bonus law”). The
additional residential units were constructed in 2017. An Amended and Restated Housing Cooperation
Agreement is proposed to allow for the rental of residential units until such time as the units are sold to
qualified lower-and moderate-income households.
ENVIRONMENTAL REVIEW
The proposed activity has been reviewed for compliance with the California Environmental Quality Act
(CEQA) and it has been determined that the activity is not a “Project” as defined under Section 15378 of the
state CEQA Guidelines because it will not result in a physical change in the environment; therefore, pursuant
to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Notwithstanding the
foregoing, it has also been determined that the activity qualifies for an Exemption pursuant to Section
15061(b)(3) of the California Environmental Quality Act State Guidelines. Thus, no environmental review is
required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable.
v.001 Page|1
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DISCUSSION
Kingswood Manor,located at 54-94 Kingswood Drive, just west of Hilltop Drive(the “Project”) was originally
developedwith five two-story buildings, totaling 40 three-bedroom apartment units and 100 parking spaces.
Under State Density Bonus Law, Hamilton Plaza LTD., a California Limited Partnership, (the “Applicant”)has
constructed an additional 10 three-bedroom units, a trash collection area, a children’s play area, and
redesignedthe parking area to accommodate 107 spaces.
The Project wasoriginallyapproved on May 9, 2000viaCity CouncilResolution 2000-149with a 20 percent
density bonusor 10 additional units, areduction inparking required under the Precise Plan (76-14)butto
be consistent with the City’s MunicipalCode, and 16 percent compact parking spaces. To ensure that the
Project would be constructed, used and operated in accordance with State Density Bonus Law, the City and
the Declarant entered into an agreement titled “Housing Cooperation Agreement”, recorded as Document
No.2000-0252932in the Office of the San Diego County Recorder, settingforth terms and conditions relating
to 20% of the Project’s units to be occupied and affordable “for rent”to qualifying lower income households
(the “Restricted Units”).
Subsequently, in 2010, Applicant requested the Property beconsidered for condominium conversion and a
parcel map wasapproved. On June 15, 2010 by City Council Resolution 2010-152,the Housing Cooperation
Agreement was amended via “First Amendment to Housing Cooperation Agreement”, recorded as Document
No. 2010-0421268 in the Office of the San Diego County Recorder, providing for a “for sale” affordable
project. Under the First Amendment, 33% of the Project’s units are to be occupied and affordable for
purchase to qualifying low-income households at or below 80 percent of the Area Median Income (“AMI”)
and moderate-incomehouseholds at or below 120 percent of AMI for sale (three units forlow-income and
14 units for moderate-incomeor “For-Sale Restricted Units”).
The Project was constructed and completed in December 2017. However, due to market conditions the
Project remains as a rental property and no units have been converted for saleto individual homebuyers. To
ensure that the Project is in compliance with State Density Bonus Law, the City and the Declarant seek to
enter into an Amended and Restated Agreement, attached as Exhibit 2.
The Amended and Restated Housing Cooperation Agreement (the “Agreement”) authorizes Applicant to rent
the Restricted Units in the Project as affordable to low-income households until such time the For-Sale
Restricted Units are sold to low-and moderate-income households. This Agreement provides for noticing
and incentives to those low-income tenants of the Restricted Units impacted by the potential sale of their
unit. These low-income tenants will be provided the following:
1.One hundred and eighty (180) days’ notice that their unit will be sold or impacted by the sale;
2.Right of first refusal to purchase the unit that is to be sold or impacted by the saleat the incomelevel
(low-or moderate-income) that may be availableand for which tenant qualifies.
3.Three thousand five hundred dollars ($3,500) to be used as a down payment toward the purchase of
the For-Sale Restricted Unitor, if they do not purchase the property, to be used as relocation
assistance.
Page|2
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If the Project remains as a rental property for 30 years, the restrictions for occupancy and affordability for
low-income households and sale of the units to low-and moderate-income homebuyers will be terminated.
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the City Councilmembers and has found no property holdings
within1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this item
does not present a disqualifying real property-related financial conflict of interest under California Code of
Regulations Title 2, section 18702.2(a)(7) or (8), for purposes of the Political Reform Act (Cal. Gov’t Code
§87100, et seq.).
Staff is not independently awareand has not been informed by any City Council member, of any other fact
that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
All costs associated with the preparation and execution of the Amended and Restated Housing Cooperation
Agreementare included in existing departmental budgets,resulting in no additionalfiscal impact to the
General Fund or Housing Fund in the current year.
ONGOING FISCAL IMPACT
There is no new or ongoing fiscal impact created by the execution of the Agreement. Staff costs associated
withmonitoring of the Project for compliance with the Agreement will be included in futuredepartmental
operating budgets.
ATTACHMENTS
1.Location Map
2.Amended and Restated Housing Cooperation Agreement, including Property Description, for Rent
requirements, Promissory Note, and Deed of Trust
Staff Contact: Leilani Hines, Housing Manager
Page|3
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVINGAN AMENDED AND RESTATED
AGREEMENTAND ASSOCIATED DOCUMENTS
MEMORIALIZING A STATE DENSITY BONUS PURSUANT
TO GOVERNMENT CODE SECTION 65915 ET SEQ.
BETWEEN THE CITY AND HAMILTON PLAZA LTD,
INCLUDING ALLOWING THE RENTAL OF DWELLING
UNITS AT AN AFFORDABLE RENT UNTIL THEY ARE SOLD
AT AN AFFORDABLE SALES PRICE AT KINGSWOOD
MANOR
WHEREAS, Hamilton Plaza LTD., a California Limited Partnership, (“Property Owner”)
as the legal owner of the fee title to the real property described as 54 through 94 Kingswood Drive
(the “Property”), submitted to the City of Chula Vista (“City”)a proposalpursuant to State Density
Bonus Law, Government Code Section 65915 et seq(“Stated Density Bonus Law”)for the
development of ten (10) additional three-bedroom units with associated parking and amenities to
an existing forty (40) unit residential development known as Kingswood Manor;and
WHEREAS, consistent State Density Bonus Law, Property Owner proposedto construct
ten (10) additional units, a twenty-five percent density bonus over the existing forty (40) unit
residential development, with any three (3) three bedroom units to be affordable for purchase by
low income households at or below 80 percent of the Area Median Income ("AMI") and fourteen
(14) three bedroom units affordable to moderate income households at or below 120 percent of
AMI ("Project"); and
WHEREAS, to ensure that the Project would be constructed, used and operated in
accordance with State Density Bonus Law, City and Property Owner entered into an agreement
titled “Housing Cooperation Agreement” dated May 9, 2000 and recorded as Document No. 2000-
0252932 in the Office of the San Diego County Recorder (the “Original Agreement) setting forth
terms and conditions relating to the Project’s ten units to be occupied and rented as affordable to
qualifying lower-income households;and
WHEREAS, that Original Agreement was subsequently amended via the “First
Amendment to Housing Cooperation Agreement” dated June 15, 2010 and recorded as Document
No. 2010-0421268 in the Office of the San Diego County Recorder (the “First Amendment”) to
providefor thesale of individual units at an affordable purchase price to three qualifying low-
income households at or below 80 percent of the Area Median Income (“AMI”) and 14 moderate
income households at or below 120 percent of AMI;and
WHEREAS, the Project has been constructed and Property owner now seeks to provide
the Project with individual units available for sale to low-and moderate-income households
consistent with the First Amendment, but also seeks to be able to rent units as “for rent” affordable
units until such time individual units are sold, which shall be in accordance with the Original
Agreement; and
ΑΏΐΘȃΏΘȃΐΏ !¦¤£ Packet0 ¦¤ 78
Resolution No.
Page 2
WHEREAS, it is City’s and Property Owner’s intent to enter into an Amended and
Restated Agreement (“Amended and Restated Agreement” or “Agreement”) to(i) provide for the
density bonus, incentives and waiversin accordance with the State Density Bonus Law and (ii) the
creation and maintenanceof a specified percentage of the dwelling units on the Property for lower-
and moderate-income housingin accordance with the Original Agreement and First Amendments
hereby incorporated into this Amended and Restated Agreement; and,
WHEREAS, the Development Services Director has reviewed the proposed activity for
compliance with the California Environmental Quality Act (CEQA) and has determined that the
activity is not a “Project” as defined under Section 15378 of the California Environmental Quality
Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c)(3) no
environmental review is required.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista,
that it approves the Amended and Restated Agreement, between the City and Hamilton Plaza
LTD., a California Limited Partnershipto provide benefits to project sponsors of housing projects
that set aside residential units on site at below market rate rent or sales in accordance with the State
Density Bonus Law, Government Code section 65915 et seq.and all other associated documents
necessary for implementation of theAgreement,in the formspresented, with such minor
modifications as may be required or approved by the City Attorney, a copy of which shall be kept
on file in the Office of the City Clerk, and authorizes and directs the City Manager or his designee
to execute same.
Presented byApproved as to form by
Kelly G. Broughton, FASLAGlen R. Googins
Director of Development ServicesCity Attorney
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Exhibit 1
Location Map
Kingswood Manor
54-94 Kingswood Drive
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September 10, 2019File ID: 19-0399
TITLE
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE PERFORMING AND
VISUAL ARTS GRANT REVIEW PANEL’S AWARD RECOMMENDATIONS FOR FISCAL YEAR 2019/20 WITH A
TOTAL MONETARY GRANT AWARD FOR THIS FISCAL YEAR TOTALING $80,390
RECOMMENDED ACTION
Council adopt the resolution.
SUMMARY
The Performing and Visual Arts Fund Grant Program (PVAG) was established in 1997 to promote and
stimulate the growth of cultural arts within the City of Chula Vista. The PVAG is fundedthrough a sublease
agreement with Live Nation wherebya portion ofannualticket sales from the Amphitheaterare allocated
to Chula Vista Cultural Arts. The amount received thisyearfrom the North Island Credit Union
Amphitheater(Amphitheater)was $80.462.00dollars. The PVAG funds projects in a variety of artistic
fields including dance, design arts, media arts, music, photography, theater, traditional/folk arts and visual
arts, and interdisciplinary expressions with the purpose of creating a robust and sustainable cultural arts
scene in Chula Vista. This year’s PVAG Review Panel has recommendedgrant funding in the amount of
$80,390.00dollars.
ENVIRONMENTAL REVIEW
..Environmental Notice
Theactivity is not a “Project” as defined under Section 15378 of the California Environmental Quality Act
State Guidelines; therefore, pursuant to State Guidelines 15060(c)(3) no environmental review is required.
..Body
Environmental Determination
The Director of Development Services has reviewed the proposed activity for compliance with the
California Environmental Quality Act (CEQA) and has determined that the activity is not a “Project” as
defined under Section 15378 of the State CEQA Guidelines, because it will not result in a physical change in
the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is
not subject to CEQA. Thus, no environmental review is required.
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BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Council adopt the resolution
DISCUSSION
Funded through a portion of ticket sales from the Amphitheater, the PVAG has granted upwards of $1
millionsince its inception and is a primary City funding source of cultural arts in Chula Vista. It is the
objective of the PVAG Program to supportprojects that nurture and cultivate innovation and creativity,
strengthen Chula Vista’s competitive edge, and create a better quality of life for all residents. To further
opportunity and to maximize grant monies, allPVAG project proposals must demonstrate a collaborative,
strategic, and meaningful partnership.Projectsfunded through the PVAG must also have a community
benefit and be accessible to the public.
This year, the proceeds received from Live Nation totaled $80,462.00dollars. With these monies, the
ReviewPanel has recommended fundingfor 21of the 26grant requests received for a total PVAG grant
recommendation of $80,390 dollars (Attachment 1).
2019/2020 Grant Review Panel Members
Devonte Roberts–Cultural Arts Commissioner
Lorise Maynard–Cultural Arts Commissioner
Taylor Ward –Cultural Arts Commissioner
Jared Valentine–Live Nation –North Island Credit Union Amphitheater
Caroline Nordquist–Mingei Museum
Erwin Magbanua–Chula Vista Civic Center Library
Alexandra Mares–CommunityMember At Large
Jawaher Dominguez Karram -Community Member At Large
Cynthia Fernandez –Community Member At Large
DECISION-MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific
andconsequently, the real property holding of the City Council members do not create a disqualifying real
property-related financial conflict of interest under the Political
CURRENT-YEAR FISCAL IMPACT
There is no current year fiscal impact associated with the Performing and Visual Arts Grant. The
recommendedgrant awards would be fully funded through the monies received from Live Nationand
existing unencumbered PVAG grant monies from last fiscal year.
ONGOING FISCAL IMPACT
There are no on-going fiscal impacts associated with this action.
ATTACHMENTS
1.FY19/20PVAG Award Recommendations
Staff Contact: Lynnette Tessitore; Cultural Arts Manager
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COUNCIL RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING THE PERFORMING AND
VISUAL ARTS GRANT REVIEW PANEL’S AWARD
RECOMMENDATIONS FOR FISCAL YEAR 2019/20 WITH A
TOTAL MONETARY GRANT AWARD FOR THIS FISCAL
YEAR TOTALING $80,390
WHEREAS,in 1997, the City Council approved a Sublease with Live Nation, Inc. that
established a process whereby ticket sale proceeds from the Amphitheater would be paid to the City
and utilized for a Performing and Visual Arts Fund(PVAG Fund); and
, the PVAG Fund was established to stimulate and grow Cultural Arts in the
WHEREAS
City of Chula Vista; and
WHEREAS,all grant money awarded will fund cultural arts in the City of Chula Vista,
including artists, artistic collaborations,materials such as supplies and costumes for
programs/performances, and to assist in strengthening and growing the cultural arts scene in
Chula Vista; and
WHEREAS, the proceeds received from Live Nationfor Fiscal Year20 (FY20) total
$80,462 dollars; and
WHEREAS,there is $11,300.00dollars in encumbered FY19grant monies(residual
monies)in thePVAGfund; and
WHEREAS, there is a total of $80,462 dollars available to award for FY20 and
WHEREAS, there were 26applications received for FY20, which includedapplications
fromindividual artists, City departments, and a variety of arts organizations and non-profits; and
WHEREAS, the Performing and Visual Arts Grant Review Panel (Review Panel)
reviewed and scored assigned applications; and
WHEREAS, the Review Panel recommended funding 21 of the 26 grant applicationsin
the amount of $80,390dollars; and
WHEREAS, at a regularly scheduled meeting on June 10th, 2019, the Cultural Arts
Commission accepted the Review Panel’s FY20grant recommendations; and
WHEREAS, the Development Services Director has reviewed the proposed activity for
compliance with the California Environmental Quality Act (CEQA) and has determined that the
activity is not a “Project” as defined under Section 15378 of the State of California CEQA
Guidelines because the activity consists of a governmental administrative/fiscal activity that will
not result in direct or indirect physical changes in the environment. Therefore, pursuant to
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Resolution No. _________
Page 2
Section 15060(c)(3) of the State of California CEQA Guidelines, the activity is not subject to
CEQA. Thus, no environmental review is required; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista, that it hereby accepts the PVAG Review Panel’s FY20recommendations.
PresentedbyApproved as to form by
Tracy LambGlen R. Googins
Community ServicesDirectorCity Attorney
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2019/2020
Performing and Visual Arts Grant Recommendations
1.Chula Vista Heritage MuseumAward$5,000
RUTH ExhibitPhotos, printing, mounting, installation, and
marketing
Curation of a 1year Exhibition of Holocaust
artifacts, pictures, documents andscreenings of
thefilm Try to Remember Never Forget. The
proposal provides aneducationalopportunity
wherethe audience willsee and hear first-hand
about significant historical events.
2. Chula VistaArt Guild (CVAG)Award$2,000
Educational programming artist stipends and art
demonstrations.
The longest existing Arts organization in Chula
Vista, CVAG is expanding their outreach through
new community partnerships, more diversity in
their membership, and Artist development
opportunities through workshops and demos
3.Amanda KachadoorianAward$2,000
Paint, supplies, and Artist Fee.
Amanda Kachadoorian is collaborating with the
Chula Vista Library as the Artist for the Botanical
Hybridity of Chula Vista’s Multicultural History
project. Ms. Kachadoorian will create a body of
work that will incorporate sculptural elements into
large scale paintings to bring a message of
inclusivity, diversity, and community.
4. Mariachi Scholarship FoundationAward$4,000
Mariachi Instructor stipends to run workshops.
Instruction will be given in the genres of guitar,
vihuela, guitarron, and trumpet and ballet
folklorico dance,, providing students instruction
from world renownedmaster mariachis and ballet
folkorico teachers. High school and middle school
students, along with students of Southwestern
College will also participate.
5. OnStage PlayhouseAward$4,000
Student Apprentice Stipends, Intern and
This program provides students Assistant Production supplies, production expenses,
scholarship
(shadowing) position opportunities in all phases of
live theatre operation. As an “assistant” they
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2019/2020
Performing and Visual Arts Grant Recommendations
would train in all phases of theatre operation on a
one to one basis. The grant provides selected
candidates a stipend to cover transportation and
other participation costs. Participant will also
receive free ticketsto OnStage theater
performances and attendance at theatre events in
the larger theatre community.
6. Starlight ParadeAward$5,000
Children’s Faire Arts and Culture Activities
The historic Starlight Parade now includes a free
Children’s Faire which includes family friendly art
experiences. The Children’s Faire transforms
Memorial Bowl into a Winter Wonderland.
7. The New Children’s MuseumAward $2,500
Workshops, art making supplies, Artist Stipends
Mass Creativity: Comunidad (Comunidad), strives
to deepen relationships and diversify the
Museum’s audience through art-making
workshops and professional development training.
Includes a field trip to The New Children’s
Museum.
8. Brad CollinsAward $5,000
HedenKamp/Camarena Elementary SchoolsThe purchaseofguitars
This project proposes to purchase guitarstocreate
a creative guitar instruction program that will
include a mentoring program by High School
musicians and a collaboration with Music Tech
classes to record and develop the music. The
guitars will be apart of theschools growingmusic
programs.
9. San Diego BalletAward $3,500
Production and Artist Stipends
This program will continue what was started in the
last funding cycle where San Diego Ballet,
professional teaching Artists conducted 10 master
classes with Middle School students and
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2019/2020
Performing and Visual Arts Grant Recommendations
culminates with a free public professional ballet
performance at the Jack Tygett Theater.
10. Friends of the Chula Vista LibraryAward $1,800
Film Forum
Film Forum provides free films for the public twice
per month on the second and fourth Wednesday
of each month at the Civic Center Library
auditorium.The films include contemporary
American foreign films, classic cinema and cult
movies, with a discussion or Question & Answer
(Q&A) session with the audience. Cultural Arts will
continue tocollaboratewith Film Forum to grow
theChula Vista Film Festival
11. Arts For Learning Award $3,040
For Artist Fees and Books
Arts for Learning provides a free performance
series with a variety of professional performers.
The program provides free access to the
performing arts and free books to local families.
Cultural Artswill be working with Arts for Learning
to increase attendance and to provide more
access to community members
12.California Ballet AssociationAward$3,350
Artistic Instructors, materials for workshops
Theproposal states that Teaching artists will lead
various structured ballet exercises that focus on
proper body alignment, healthy movement
pathways, coordination, and the development of
flexibility and strength. This program is intended
to expose students to the mind-body connection
gained from performing exercises and will
encourage both a deeper awareness of one’s body
in space and a more comprehensive
understanding of how dance technique can build a
healthierbody overall.
13.TranscenDANCE Youth Art ProjectAward $3,800
Artist Stipends and program materials
TranscenDANCE Youth Arts Project will collaborate
with Chula Vista High School to create a one-week
intensive dance and spoken word CREATE EXPRESS
Camp (residency). The program will engage 20-25
young people ages 14-18 for 6 hours a day for 5
3
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2019/2020
Performing and Visual Arts Grant Recommendations
days learning dance (hip hop, modern, improv
technique) and performing arts, including
choreography and spoken word, while immersed
in a social change/emotional resiliency curriculum.
14.Mexi’cayotl Indio Cultural CenterAward $2,900
Artists, teachers, supplies and regalia.
Mexi’cayotl, the only Azteca dance group in the
region,will collaborate with local community
organizations to provide cultural dance,
educational programming and storytelling
experiences in Chula Vista.
15.Museum of Contemporary ArtAward$3,500
Teaching Artists, Art Making Supplies, Gallery
The Extended School Partnership program (ESP) Educators, production costs.
will provide professional exhibition curriculum to
two local high schools ( ChulaVista High and High
Tech High). The program includes in-class
instruction, and development of a showcase
exhibitionboth in the Museum and in Chula Vista.
16.San DiegoYouth Symphony and Award $5,000
ConservatoryTeaching Artists
San Diego Youth Symphony Community Opus
Project provides free professional music
instruction to Chula Vista Elementary School
students.
17.Outside the LensAward $5,000
Teaching Artists, Panel Moderation, Film
This project promotes the intersection of Arts and Screening, workshop.
social justice. Outside the Lens will partner with
Cultural Arts Chula Vista and community
stakeholders to present a screening of the award-
winning documentary film Skid Row Marathon,
film panel, and photography workshop.
18.Community Through HopeAward$2,500
Art materials
This project proposes to curate a community art
piece as part of the inaugural HeART of the City
Music Fest. The requestis tooffset thecosts to
schools forart materials so they canparticipate in
the music festival.
4
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2019/2020
Performing and Visual Arts Grant Recommendations
19.Guild of PuppetryAward $4,000
Puppetry performances, and booths, Circus
Guild of Puppetry is partnering with Fern Street Artists and Musicians
Circus for thethirdyear to bring a unique day of
folk arts programming to activate one of Chula
Vista’s parks in one of the City’s underserved
areas. The event is both performance based and
interactive and provides the community access to
a type of arts programming that isnot typical in
the region.
20.Music In the ParkAward $7,500
Artist stipends andproduction costs
Music in the Park is a series of free family friendly
summer concerts held in Memorial Bowl each with
a community experience.
21.HarborFestAward $5,000
Community Stage, Artist in the Park, and Maker
HarborFest is one of Chula Vista premier signature Faire
events. Cultural Arts Chula Vista curates the Art in
the Park and Maker Faire area, provides
sponsorships to local artists, creatives, and
innovators to exhibit and sell their work, and
produces, manages and pays all artists and talent
on the community stage
PVAG Grant Panel RecommendationTotal :$80,390.00
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September 10, 2019File ID: 19-0416
TITLE
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS; AWARDING THE
CONTRACT FOR THE COMBINED ADVERTISEMENT OF THE “S
EWER ACCESS ROAD REHABILITATION FOR
FY 2013/2014 (CIP# SWR0282)” AND “SEWER ACCESS ROAD REHABILITATION FOR FY 2014/2015 (CIP#
SWR0288)” PROJECTS TO BLUE PACIFIC ENGINEERING AND CONSTRUCTION IN THE AMOUNT OF
$192,089; AND APPROPRIATING$44,000FROMTHE AVAILABLE BALANCE OF THE SEWER FACILITY
REPLACEMENT FUNDTO CIP# SWR0282 (4/5 VOTE REQUIRED)
RECOMMENDED ACTION
Council adopt the resolution.
SUMMARY
On August7, 2019, the Director of Engineering and Capital Projects received three(3) sealed bids for the
advertisementof the “Sewer Access Road Rehabilitation for FY 2013/2014 (CIP# SWR0282)” and “Sewer
Access Road Rehabilitation for FY 2014/2015 (CIP# SWR0288)” projects. The project consists of routine
pavement rehabilitation of seweraccess roads, adjustment of manholes, and installation ofmanhole
concrete pads.
Staff recommends (1) awarding the contract to Blue Pacific Engineering and Construction, and(2)
appropriating$44,000 fromSewer Facility Replacement Fundto CIP# SWR0282.
ENVIRONMENTAL REVIEW
The City’s Development Services Director has reviewed the proposed project for compliance with the
California Environmental Quality Act (CEQA) and has determined that the project qualifies for a Categorical
Exemption pursuant to State CEQA Guidelines Section 15301 Class 1 (Existing Facilities) and Section 15302
Class 2 (Replacement or Reconstruction) because the proposalinvolves negligible or no expansion of use,
would not result in a significant effect on the environment or create acumulative impact. Thus, no further
environmental review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable
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DISCUSSION
CIP projects SWR0282 and SWR0288 are funded by Sewer Facility Replacement funds. The scope of work
includes:
Overlay of existing asphalt concrete pavement at the Hampton Court and Timber Street access
roads.
Construction of new pavement, crack seal and slurry seal on Foxboro Avenue access road.
Crack seal and slurry seal at the Nantucket Street, Hawthorne Creek Drive, and Discovery Falls
Drive access roads.
The scope of this project also includes adjustment of utility manholes, construction of manhole PCC pads,
excavation and minor grading, removal and disposal of existing improvements, vegetation and debris,
removal and replacement of AC dike, public safety and convenience measures, water pollution control,
protection and restoration of existing improvements, and other related work.
The CIP SWR0282 and CIP SWR0288 projects was advertisedon July 12, 2019. The Director of Engineering
and Capital projectsreceived and opened three (3) base bids for the project on August7, 2019as follows
(listed in numerical order of bid total amount):
RANKINGCONTRACTORBID AMOUNT
Blue Pacific Engineering & Construction
$192,089.00
1
$193,329.95
Pal General Engineering Inc
2
$236,214.28
R G C General Engineering Inc
3
The apparent low bid by Blue Pacific Engineering & Constructionof $192,089.00is $32,147(approximately
20.1%) above the Engineer’s estimate of $159,942. Blue Pacific Engineering & Constructionis currently an
active licensed Class “A, B, C27, C-8, C10” general engineeringcontractor (License No. 824455) and has
performed similar work in the region with satisfactory performance.
Staff has reviewed the bid package from Blue Pacific Engineering & Constructionand has determined it to
be responsive in all material respects to the bid specifications and requirements andhas determined Blue
Pacific Engineering and Construction to be the lowest responsive and responsible bidder.
Change Orders
On May 9, 2017, City Council approved Resolution 17-0174 to adopt ordinance (Ord. 3400 § 1, 2017) of the
City of Chula Vista and amend Chapter 2.56 of the Chula Vista Municipal Code –“Purchasing System”. This
ordinance amends the change order limits and authorizes the City Engineer to approve change orders up to
the remaining CIP budget available for the CIP project.
Wage Statement
The Contractor and its subcontractors are required by bid specifications to pay prevailing wage
(“Prevailing Wage Rates”) to persons employed by them for work under this Contract. In accordance with
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the provisions of Section 1773 of the Labor Code of the State of California, the City of Chula Vista has
ascertained the general prevailing wage scales applicable to the work to be done. The prevailing wage
scales are those determined by the Director of Industrial Relations, State of California.
Disclosure Statement
Attachment 1isa copy of the Contractor’s Disclosure Statement.
Staff recommends awarding CIP SWR0282 and CIP SWR0288to Blue Pacific Engineering & Construction.
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the CityCouncilmembers and has found no property holdings
within1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this
item does not present a disqualifying real property-related financial conflict of interest under the Political
Reform Act (Cal. Gov’t Code §87100, et seq.).
Staff is not independently aware andhas not been informed by any CityCouncilmember, of any other fact
that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
Approval of the resolution will (1) initiate the construction phase of SWR0282 and SWR0288,and(2)
appropriate $44,000 from the Sewer Facility Replacement Fundto CIP# SWR0282, accelerating the repair
of critical assets.
The following is a summary of anticipated project costs for bid:
FUNDS REQUIRED FOR CONSTRUCTION
192,089.00
A. Contract Amount
$29,200
B. Contingencies (Approx. 15%)
$36,498
C. Construction Staff Time, Material Testing & OtherCosts (Approx. 19%)
$257,787
TOTAL
FUNDING SOURCES (ROUNDED)
$80,058
A. Fund SWR0282-428
$133,729
B. Fund SWR0288-428
$44,000
C. Appropriationfrom Sewer Facility ReplacementFund
$257,787
TOTAL
ONGOING FISCAL IMPACT
Upon completion of the project, the improvements will require only routine maintenance.
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ATTACHMENTS
1.Contractor’s Disclosure Statement
Property Holdings Conflict Check
2.
Staff Contact: Claudia Estupinan, Associate Engineer
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA ACCEPTING BIDS; AWARDING THE
CONTRACT FOR THE COMBINED ADVERTISEMENT OF
THE “SEWER ACCESS ROAD REHABILITATION FOR FY
2013/2014 (CIP# SWR0282)” AND “SEWER ACCESS ROAD
REHABILITATION FOR FY 2014/2015 (CIP# SWR0288)”
PROJECTS TO BLUE PACIFIC ENGINEERING AND
CONSTRUCTION IN THE AMOUNT OF $192,089; AND
APPROPRIATING $44,000 FROM THE AVAILABLE
BALANCE OF THE SEWER FACILITY REPLACEMENT
FUND TO CIP# SWR0282
WHEREAS, section2.56.160of the Chula Vista Municipal Code authorizes the City to
contract for public works; and
WHEREAS, on July 12, 2019, the Department of Engineering and Capital Projects
solicited bids for the combined advertisement of the “Sewer Access Road Rehabilitation for FY
2013/2014 (CIP# SWR0282)” and “Sewer Access Road Rehabilitation for FY 2014/2015 (CIP#
SWR0288)” projects in accordance with Chula Vista Municipal Code section 2.56.160.A; and
WHEREAS, on August 7, 2019, the Director of Engineering and Capital Projects
received three (3) sealed bids for the combined advertisement of the “Sewer Access Road
Rehabilitation for FY 2013/2014 (CIP# SWR0282)” and “Sewer Access Road Rehabilitation for
FY 2014/2015 (CIP# SWR0288)” projects; and
WHEREAS, the apparent low bid for the project was submitted by Blue Pacific
Engineering and Construction in the amount of $192,089, which is abovethe engineer’s estimate
of $159,942 by $32,147 (approximately 20.1% abovethe engineer’s estimate); and
WHEREAS, staff has determined that the bid submitted by Blue Pacific Engineering and
Construction is responsive in all material respects to the bid specificationsand requirements, and
that Blue Pacific Engineering and Construction is the lowest responsive and responsible bidder;
and
WHEREAS, staff recommends awarding the contract to Blue Pacific Engineering and
Construction in the amount of $192,089; and
WHEREAS, staff is recommends appropriating $44,000 from the Sewer Facility
Replacement Fund to CIP# SWR0282to complete the project; and
WHEREAS, the Sewer Replacement Fund has a sufficient balance available to fund the
transfer to CIP# SWR0282.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista
that it awards the contract for the “Sewer Access Road Rehabilitation for FY 2013/2014 (CIP#
SWR0282)” and “Sewer Access Road Rehabilitation for FY 2014/2015 (CIP# SWR0288)”
projects to Blue Pacific Engineering and Construction in the amount of $192,089.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
authorizes the mayor, or designee, to execute the project contract on behalf of the City of Chula
Vista, and directs a copy to be kept on file with the City Clerk.
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
appropriates$44,000 fromthe available balance of the Sewer Facility Replacement Fundto CIP#
SWR0282.
Presented byApproved as to form by
William S. ValleGlen R. Googins
Director of Engineering and Capital ProjectsCity Attorney
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September 10, 2019File ID: 19-0417
TITLE
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS, AWARDING THE
CONTRACT FOR THE “INSTALLATION OF PEDESTRIAN COUNTDO
WN INDICATIONS AND TRAFFIC SIGNAL
MODIFICATIONS (TRF0405)” PROJECT TO HMS CONSTRUCTION, INC., IN THE AMOUNT OF $1,045,000; AND
TRANSFERRING $135,000IN TRAFFIC SIGNAL APPROPRIATIONS FROM TRF0398 TO TRF0405(4/5 VOTE
REQUIRED)
RECOMMENDED ACTION
Council adopt the resolution.
SUMMARY
On July 24, 2019, the Director of Engineering and Capital Projects received six(6) sealed bids for the
“Installation of Pedestrian Countdown Indications and Traffic Signal Modifications (TRF0405)” project. The
project is included in the Capital Improvement Program for Fiscal Year 2017/2018. The proposed resolution,
if approved, would 1) accept bids; 2) award the contract for this project toHMS Construction, Inc. in the
amount of $1,045,000; and 3) transfer $135,000in Traffic Signal fundsfromTRF0398 to TRF0405.
ENVIRONMENTAL REVIEW
The City’s Development Services Director has reviewed the proposed project for compliance with the
California Environmental Quality Act (CEQA) and has determined that the project qualifies for a
Categorical
Exemption pursuant to State CEQA Guidelines Section 15301 Class 1 (Existing Facilities), Section 15302 Class
2 (Replacement or Reconstruction), and Section 15303 class 3 (New Construction or Conversion of Small
Structures)because the proposed projectwould not result in a significant effect on the environment, create
a cumulative impact, damage a scenic highway, or cause a substantial adverse change in the significance of a
historical resource. Thus, no further environmental review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable.
DISCUSSION
CIP project TRF0405is a federally funded project in the Highway Safety Improvement Program(HSIP)
administered by Caltrans. The scope of work includes the installation of pedestrian countdown indications
at 117signalized intersections citywideand traffic signal upgrades at the intersections of Third
Avenue/Davidson Street, J Street/Fifth Avenue, and L Street/First Avenueto installprotected permissive left
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turn phasingon all approaches, to reduce traffic delays and improve traffic circulation. The project also
includes the installation of bicycle detection, pedestrian countdown timer indications, accessible pedestrian
signals, and new ADA compliant curb rampsat the 3 intersections mentioned above.
Bidding Process
On June 28, 2019, Engineering and Capital Projects Staff advertised the project and receivedsix(6) sealed
bids on July 24,2019. The base bid totals from the prime contractors were as follows:
ContractorBase Bid Amount
Ranking
1HMS Construction, Inc.(Vista, CA)$1,045,000
2T&M Electric, Inc. DBA Perry Electric$1,067,973
(Santee, CA)
3International Line Builders, Inc.$1,124,366
(Corona, CA)
4CalPromax Engineering, Inc.(Placentia, CA)$1,350,283
5DBX, Inc.(Temecula, CA)$1,446,849
6Crosstown Electrical& Data, Inc.$1,474,764
(Irwindale, CA)
The low bidby HMS Construction, Inc. of $1,045,000 is $70,100(approximately 7%)above the Engineer’s
estimate of $974,900. HMS Construction, Inc.is currently an active Class “A”licensed, General Engineering
Contractor (License No. 765590) and has performed similar work in the City with satisfactory performance.
Staff reviewed the bid submitted by HMS Construction, Inc. and determined that it was responsive in all
material respects to the bid specifications and requirements, and that HMS Construction, Inc. was the lowest
responsive and responsible bidder.
Disclosure Statement
Attachment 1is a copy of the Contractor’s Disclosure Statement.
Wage Statement
The Contractor that is awarded the contract and its subcontractors are required to pay prevailing wages to
persons employed by them for work under this contract. The prevailing wage scales are those determined
by the Director of Industrial Relations, State of California.
Basedon the foregoing, Staff recommends awardingthe contract for CIP TRF045 toHMS Construction, Inc.
DECISION-MAKER CONFLICT
Staff has reviewed the property holdings of the City Counciland has found that Mayor Salas has real property
holdings within 500 feet of the boundaries of the property which is the subject of this action. However,the
decision solely concerns repairs, replacement, or maintenance of existing streets, water, sewer, storm
drainage, or similar facilities, and the member’s property will not be affected disproportionately to other
properties receiving the same services. Consequently, pursuant to California Code of Regulations Title 2,
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sections 18700 and18702.2(d)(1),this item does not presenta disqualifying real property-related conflict
of interest under the Political Reform Act (Cal. Gov’t Code §87100,et seq.).
Staff is not independently aware, and has not been informed by any Council member, of any other fact that
may constitute a basisfor a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
Approval of this resolution will transfer $135,000in Traffic Signalfunds from TRF0398to TRF0405and
the construction phase of TRF0405. Sufficientfunds are availableinTRF0398forsaidtransfer;
initiate
therefore, there is no additional impact to Traffic Signal Fund.
Funds Required for Construction
A.Contract Amount$1,045,000
B.Contract Contingency $130,000
C.Construction Inspection Staff Cost$132,807
Total Funds Required for Construction$1,307,807
Available Funding
A.Project Budget (TRF0405)$1,172,807
B.Transfer Funds (Traffic Signal)from TRF0398to TRF0405$135,000
Total Funds Available for Construction$1,307,807
ONGOING FISCAL IMPACT
Upon completion of the project, the improvements will require only routine City maintenance.
ATTACHMENTS
1.Disclosure Statement
Staff Contact: Luis Pelayo, Associate Civil Engineer
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTAACCEPTING BIDS, AWARDING THE
CONTRACT FOR THE “INSTALLATION OF PEDESTRIAN
COUNTDOWN INDICATIONS AND TRAFFIC SIGNAL
MODIFICATIONS (TRF0405)” PROJECT TO HMS
CONSTRUCTION, INC., IN THE AMOUNT OF $1,045,000;
AND TRANSFERRING $135,000 IN TRAFFIC SIGNAL
APPROPRIATIONS FROM TRF0398 TO TRF0405
WHEREAS, section2.56.160of the Chula Vista Municipal Code authorizes the City to
contract for public works; and
WHEREAS, on June 28, 2019, the Department of Engineering and Capital Projects
solicited bids for the“Installation of Pedestrian Countdown Indications and Traffic Signal
Modifications (TRF0405)”project in accordance with Chula Vista Municipal Code section
2.56.160.A; and
WHEREAS, on July 24, 2019, the Director of Engineeringand Capital Projects received
six (6) sealed bids for the “Installation of Pedestrian Countdown Indications and Traffic Signal
Modifications (TRF0405)” project; and
WHEREAS, the apparent low bid for the project was submitted byHMS Construction,
Inc.in the amount of $1,045,000, which is above the Engineer’s estimate of $974,900by
$70,100(approximately 7% above the Engineer’s estimate); and
WHEREAS, staff has determined that the bid submitted byHMSConstruction, Inc. is
responsive in all material respects to the bid specifications/requirements, and thatHMS
Construction, Inc. is the lowest responsive and responsible bidder; and
WHEREAS, staff recommends awarding the contract toHMS Construction,Inc. in the
amount of $1,045,000; and
WHEREAS, staff is recommending a transfer in Traffic Signalfunds from TRF0398to
TRF0405in the amount of $135,000 for purposes of completing the project; and
WHEREAS, TRF0398 has a sufficient balance available to fund the inter-project transfer
to TRF0405.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista
that it awards the contract for the “Installation of Pedestrian Countdown Indications and Traffic
Signal Modifications (TRF0405)” project to HMS Construction, Inc. in the amount of
$1,045,000.
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BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista that it
authorizes the transfer of $135,000 in Traffic Signal appropriations from TRF0398to TRF0405.
Presented byApproved as to form by
William S. ValleGlen R. Googins
Director of Engineering and Capital ProjectsCity Attorney
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September 10, 2019File ID: 19-0415
TITLE
INVESTMENT REPORT FOR THE QUARTER ENDED JUNE 30, 2019
RECOMMENDED ACTION
Council receive the report.
SUMMARY
Transmitted herewith is the City’s investment report for the quarter ended June 30, 2019. To meet the
reportingrequirements set forth in the California Government Code Sections 53600 et seq. and the City of
Chula Vista Investment Policy and Guidelines, aseparate report was distributed to the City Council in July.
ENVIRONMENTAL REVIEW
The activity is not a “Project” as defined under Section 15378 of the California Environmental Quality Act
StateGuidelines; therefore, pursuant to State Guidelines Section15060(c)(3) no environmental review is
required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not Applicable.
DISCUSSION
The total cash and investment portfolio held by the City as of June 30, 2019 was $372,119,348 and total
cash and investments held by the trustees was $104,405,776.
The cash and investments held by the City are composed of the following components: Managed
Investment Portfolio ($291,856,053), State of CA Local Agency Investment Fund ($51,135,044), County of
San Diego Pooled Investment Fund ($10,629,419), Cash/Time Deposits ($16,055,924), and accrued interest
on investment ($2,442,907). Cash and investments held by the City and the Trustees continue to be
invested in accordance with the Government Code and the Council Investment Policy as adopted by
Resolution 2019-086 on May 21, 2019.
During the quarter, eight investments matured totaling $26,500,000. In order to maximize investment
earnings, $31,600,000 was transferred from the City’s Bank of America checking account to Bank of New
YorkMellon and used for investment purchases. In addition, $15,000,000 in short term excess cash was
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transferred from Bank of America to the State of California Local Agency Investment Fund (LAIF) in order
to maximize interest earnings on those funds. The funds from the matured investments and transfers from
Bank of New York Mellon were utilized to purchase thirty-nine new securities. Those investment
purchases include: twenty certificates of deposit ($4,958,000); sixteen federal agency bonds ($44,000,000);
and three corporate notes ($10,282,000).
Finance staff continued to manage the portfolio and work with multiple brokers/dealers for investment
purchases throughout this quarter. Ongoing portfolio management activity will continue to be performed
in-house by the Director of Finance and finance staff. There is no further activity to report on other than
routine investments by the City’s Finance Department.
In June, the Federal Open Market Committee (FOMC) decided to maintain the Fed Funds target range at
2.25% to 2.50%. The Committee will closely monitor the implications of incoming information for the
economic outlook and will act as appropriate in determining the timing and size of future adjustments to
the target range for the federal funds rate.
Two-year Treasuries yielding 2.27% at the beginning of the quarter ended lower at the end of the quarter
at 1.75%, which was a decrease of 52 basis points for the quarter.
As of June 30, 2019, the Weighted Yield to Maturity on the Managed Investment Portfolio was 2.62%, which
was an increase of 4 basis points from the previous quarter. The City’s investment portfolio continued to
outperform the two-year treasury yield this quarter.
At the end of this quarter, the Weighted Average Maturity of the Managed Investment Portfolio was 2.10
years, which is an increase from 1.87 the previous quarter and is within the Council Policy.
DECISION-MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site-
specific andconsequently, the real property holdings of the City Council members do not create a
disqualifying real property-related financial conflict of interest under the Political Reform Act (Cal.
Gov’t Code §87100, et seq.).
Staffis not independently aware, and has not been informed by any City Council member, of any other
fact that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
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. There is no direct fiscal impact by this action.
ONGOING FISCAL IMPACT
There is no ongoing fiscal impact by this action.
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ATTACHMENTS
1.Summary of Cash and Investments as of June 30, 2019
Investment Report for the Quarter Ended June 30, 2019
2.
Staff Contact: Lisa Partee, Fiscal & Management Analyst, Finance Department
David Bilby, Director of Finance/Treasurer, Finance Department
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September 10, 2019File ID: 19-0434
TITLE
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE ASSISTANCE TO
FIREFIGHTERSGRANT (AFG) AWARD FROM THE U.S.DEPARTMENT OF HOMELAND SECURITY,
APPROPRIATING $156,736 IN THE FEDERAL GRANT FUND, AND AUTHORIZING THE FIRE CHIEF OR HIS
DESIGNEE TO EXECUTE ALL RELATED DOCUMENTATION AND PROCUREMENT ASSOCIATED WITH THIS
GRANT (4/5 VOTE REQUIRED)
RECOMMENDED ACTION
Council adopt the resolution.
SUMMARY
The Chula Vista Fire Department applied for the FEMA Assistance to Firefighters Grant (AFG) program to
purchasenew P25-compliant radios and for training costs to train all firefighters to the National Wildfire
Coordination Group (NWCG) Firefighter Type 2 standard. The grantapplication was awarded for the
purchase of 25 radios, wildfire training materialsand supplies, and instructor costs for two NWCG courses
for all Fire Department members.
ENVIRONMENTAL REVIEW
The Director of Development Services has reviewed the proposed activity for compliance with the California
Quality Act (CEQA) and has determined that the activity is not a “Project” as defined under
Environmental
Section 15378 of the State CEQA Guidelines;therefore, pursuant to Section 15060(c)(3) of the State CEQA
Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable.
DISCUSSION
The Chula Vista Fire Department applied for the FEMA Assistance to Firefighters Grant (AFG) program to
purchasenew P25-compliant radios and for training costs to train all firefighters to the National Wildfire
Coordination Group (NWCG) Firefighter Type 2 standard. The grantapplication was awarded for the
purchase of 25 radios, wildfire training materialsand supplies, and instructor costs for two NWCG courses
for all Fire Department members.
Radios
New P25 radios will replace existing non-compliant radios currently installed in thefirefighting apparatus
fleet. This award will offset costs that would have been borne by the general fund and/or Measure P. With
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the award of P25-compliantradios, the Fire Department will reset the usable life span on thefrontline
firefighting fleet and reducemaintenance and replacement costs.
NWCG Training
Wildland firefighting is a constant reality in southern California and poses a significant threat in Chula Vista.
The Fire Department has made wildland firefighting a training priority; however, funding sources are scarce
in orderto accomplish training and certification in the National Wildfire Coordination Group (NWCG)
Firefighter Type 2 standard. Similar training has been provided to ensure Fire Departmentpersonnel are
prepared and safe when fighting wildland fires. However, attaining the NWCGcertificate courses will validate
this training and bring the Department toindustry standards. These courses will also allow Department
members to achieve additional qualifications specific to the wildland firefighting discipline.
DECISION-MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific and
consequently,the real property holdings of the City Councilmembers do not create a disqualifying real
property-related financial conflict of interest under the Political Reform Act (Cal. Gov't Code § 87100, et seq.).
Staff is not independently aware andhas not been informed by any City Councilmember, of any other fact
that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
This is a cost-matching grant, with a City share of $14,248 and the Federal share of $142,488 totaling
$156,736. Approval of this resolution will result in the following fiscal year 2020budget amendments and
appropriationsfor this grant revenueand will authorize the expenditure of said revenue in the prescribed
manner:
The City’s share of the grant match for radios will be $12,538 and will come from the Fire Department’s
operations division.
The City’s share of the grant match for training will be $1,709 and will come from the Fire Department
training division’ssupplies and services fund.
Staff is requesting a total appropriationof $156,736 to the Federal Grants Fund,with $29,360 to the
Personnel category and $127,376 to the Supplies and Services category.
ONGOING FISCAL IMPACT
There are no ongoing fiscal impacts that do not already exist within Fire Department funded operating
budgets.
ATTACHMENTS
None.
Staff Contact: Harry Muns, Deputy Chief
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RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTAACCEPTING THE ASSISTANCE TO
FIREFIGHTERS GRANT (AFG) AWARD FROM THE U.S.
DEPARTMENT OF HOMELAND SECURITY,
APPROPRIATING $156,736 IN THE FEDERAL GRANT
FUND, AND AUTHORIZING THE FIRE CHIEF OR HIS
DESIGNEE TO EXECUTE ALL RELATED
DOCUMENTATIONAND PROCUREMENT ASSOCIATED
WITH THIS GRANT (4/5 VOTE REQUIRED)
WHEREAS,the Department of Homeland Security (DHS), Federal Emergency
Management Agency’s (FEMA), Grant Program Directorate (GPD), is responsible for the
implementation and administration of the Assistance to Firefighters Grant (AFG) Program; and
WHEREAS,the purpose of the AFG program is to enhance the safety of the public and
firefighters with respect to fire and fire-related hazards by providing direct financial assistance to
eligible agencies for critically needed resources to equip and train emergency personnel to
recognize standards, enhance operational efficiencies, foster inter-operability and support
community resilience; and
WHEREAS,the Fire Department has evaluated the radio equipmentin their firefighting
fleet and determined this equipment has exceeded its useful life and needs to be replaced to attain
P25 compliance; and
WHEREAS,the Fire Department has evaluated its wildland firefighting training program
and determined the need to meet industry best practice certifications; and
WHEREAS, on October 26, 2018 the Fire Department applied for the Department of
Homeland Security FY2018Assistance to Firefighters Grant (AFG) program to purchase new
P25-compliant radiosand to trainFire Department members in two NWCG wildland firefighting
courses; and
WHEREAS, on August 30, 2019the Fire Department received notification of approvalof
thegrant application,andthe DHSawarded the Fire Department $142,488, which has a 10%
match requirement equivalent to $14,248,for a total project budget in the amount of $156,736;
and
WHEREAS, theFireDepartment’sfiscal year 2020operations and training division
budgets include fundingfor firefighting equipmentand training, of whichportionswill be used
for the grant match; and
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WHEREAS,the Fire Department will use this grantfundingto purchase radios and
provide trainingas approved by the grantand within the performance period ending on August
29, 2020.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista, that it acceptsthe Assistance to Firefighters Grant (AFG) award from the U.S Department
of Homeland Security.
BE IT FURTHER RESOLVED by the City Council of theCity of Chula Vista that it
appropriates $156,736 in theFederal Grant Fund, as described in the staff report ($29,360 to the
Personnel category and$127,376 to the Supplies and Services category.)
BE IT FURTHER RESOLVED bythe City Council oftheCity of Chula Vista that it
authorizesthe Fire Chief or his designee to execute all related documentation and procurement
associated with this grant.
Presented byApproved as toform by
Jim GeeringGlen R. Googins
Fire ChiefCity Attorney
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September 10, 2019File ID: 19-0425
TITLE
A.RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE COMPENSATION
SCHEDULE
AND CLASSIFICATION PLAN TO REFLECT THE ADDITION AND DELETION OF VARIOUS
POSITION TITLESAND AMENDING THE AUTHORIZED POSITION COUNTSIN VARIOUS DEPARTMENTS
WITH A NET INCREASE INAUTHORIZED STAFFING
B.RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE REVISED FISCAL
YEAR 2019-2020COMPENSATION SCHEDULE EFFECTIVE SEPTEMBER 13, 2019, AS REQUIRED BY
CALIFORNIA CODE OF REGULATIONS, TITLE 2, SECTION 570.5
C.ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHULA VISTA MUNICIPAL CODE SECTION
2.05.010 TO ADD THE UNCLASSIFIED POSITIONS OF FA CYBER SECURITY PROGRAM MANAGER, FA
NETWORK ADMINISTRATOR III, AND FACILITIES FINANCING MANAGER AND TO DELETETHEFA
INFORMATION SECURITY PROGRAM MANAGER POSITION (FIRST READING) (4/5 VOTE REQUIRED)
RECOMMENDED ACTION
Council adopt the resolutions and place the ordinance on first reading.
SUMMARY
In an effort to address the needs of various departments and the City's workforce, the Human Resources
Department, in conjunction with the affected departments, is proposing the addition and deletion of certain
classifications.
Staff is also recommending approval of the revised Fiscal Year 2019-2020Compensation Schedule.
effective September 13, 2019.
ENVIRONMENTAL REVIEW
The Director of Development Services has reviewed the proposed activity for compliance with the
CaliforniaEnvironmental Quality Act (CEQA) and has determined that the activity is not a “Project” as
defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of
the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is required.
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BOARD/COMMISSION/COMMITTEE RECOMMENDATION
The Measure A Citizens' Oversight Committee (COC) reviewed and approved the addition of the twoDigital
ForensicsTechnician II positions at their July 11, 2019 meeting, in compliance with the Measure A
Expenditure Plan.
DISCUSSION
1.Classification Plan Changes
Civil Service Rule 1.02(A), which applies to the City’s classified positions, provides for necessary reviews
andchanges so that the City’s classification plan is kept current, and that changes in existing classes, the
establishment of new classes, or the abolition of classes are properly reflected in the classification plan.
In an effort to address the needs of various departments and the City's workforce, the Human Resources
Department, in conjunction with the affected departments, isproposing certainposition changes. The
following identifies the department, affected positions and proposed changes.
DepartmentPosition TitleFTE
Accounting Assistant-1.00
Finance
(General Fund)
Fiscal and Management Analyst1.00
Community Services
Fiscal Office Specialist1.00
(General Fund)
Police
Digital Forensics Technician II2.00
(Measure A Fund)
Senior Civil Engineer1.00
Public Works Inspector II2.00
Associate Engineer3.00
Engineering
(General Fund*)
Storm Water Compliance Inspector II1.00
Senior Engineering Technician1.00
Associate Engineer1.00
Engineering (Sewer Fund)Associate Engineer-1.00
Senior Fiscal Office Specialist-1.00
Public Works
(General Fund)
Senior Office Specialist1.00
Engineering Technician II-1.00
Development Services Technician II1.00
Development Services
(Development Services Fund)
Building Inspector II3.00
Facilities Financing Manager1.00
Total City-Wide Position Changes (Net Increase/Decrease)15.00
* The Engineering Department staffing changes will be reimbursed to the General Fund from the Capital Improvement Program
(CIP) and other funding sources.
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Summary of New Classifications
Position TitleBargaining GroupE Step
Digital Forensics Technician IACE$2,404.13bi-weekly
Digital Forensics Technician IIACE$2,764.75bi-weekly
Facilities Financing ManagerSenior Management$4,601.72bi-weekly
2.Compensation Schedule Requirement
California Code of Regulations, Title 2, Section 570.5 requires that, for purposes of determining a retiring
employee'spension allowance, the pay rate be limited to the amount listed on a pay schedule that meets
certain requirements and be approved by the governing body in accordance with the requirements of the
applicable public meeting laws. The revised Fiscal Year 2019-2020Compensation Schedule
("Compensation Schedule") was last approved by the City Council at their meeting of August 13, 2019.
This item ensures continued compliance with California Code of Regulations, Title 2, Section 570.5, by
ensuring the City has an up-to-date,publiclyapproved Compensation Schedule.
3.Resolutions
Approval of Resolution A will approve the addition and deletion of various position titlesandamend the
authorizedposition count in theFinance,Community Services, Development Services, Engineering and
PoliceDepartmentswith anetincreaseto authorized staffing(Community Services, Development Services,
Engineering and Policeonly).
Approval of Resolution Bwill approve the revised Compensation Schedule effective September 13,2019to
reflect the addition of the Digital Forensics Technician I, Digital Forensics Technician II, Facilities Financing
Managerand Development Automation Specialist position titles. The Development Automation Specialist
position titlewasapproved in the Fiscal Year 2019-2020 budget but inadvertently not included in the
Fiscal Year 2019-2020 Compensation Schedule.
4.Ordinance
Chula Vista Municipal Code Section 2.05.010 also needs to be updated to reflect the position changes
impactingthe unclassified positions. Chula Vista City Charter Section 500 requires that all unclassified
positions not mentioned specifically in Charter Section 500 be adopted by ordinance. Adoption of the
ordinance will add the position title of Facilities Financing Manager, FA Network Administrator III and FA
Cyber Security Program Manager anddelete the position title of FA Information Security ProgramManager.
DECISION-MAKER CONFLICT
Staff has determined that the action contemplated by this item is ministerial, secretarial, manual, or clerical
innature and, as such, does not require the City Council members to make or participate in making a
governmental decision, pursuant to California Code of Regulations Title 2, Section 18702.4(a).
Consequently, this item does not present a conflict under the Political Reform Act (Cal. Gov't Code § 87100,
et seq.). Staff is not independently aware, and has not been informed by any City Council member, of any
other fact that may constitute a basis for a decision maker conflict of interest in this matter.
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LINK TO STRATEGIC GOALS
The City’s Strategic Plan has five major goals: Operational Excellence, Economic Vitality, Healthy
Community, Strong and Secure Neighborhoods and a Connected Community. The position changes support
the City-wide strategic goal of Operational Excellence by providing more accurate position titles that better
reflect the needs of the City’s workforce. Furthermore, approval of the revised Fiscal Year 2019-2020
Compensation Schedule and its posting on the City's internet website supports the goal of Operational
Excellence as it enhances disclosure and transparency of employee compensation and, asa result, fosters
public trust through an open and ethical government.
CURRENT-YEAR FISCAL IMPACT
The estimated current year net fiscal impact (all funds) for these items is approximately $73,600. There is
noGeneral Fund fiscal impactas a result of this action. The Finance Department staffing changes will be
paid out of the Measure A Support allocation received in the General Fund for services provided to the Fire
Department, and the Engineering Department staffing changes will be reimbursed to the General Fund
from the Capital Improvement Program (CIP) and other funding sources. The Community Services
Department staffing changes will be paid from personnel savings in hourly wages in the department budget
within the General Fund. The Public Works position changes will have no fiscal impact on the General Fund
and just a change in the position title.
The Measure A Fund negative fiscal impact is approximately $187,900 for the addition of 2.0 positions, the
Sewer Fund will have a cost reduction, or positive fiscal impact, of approximately $122,300 due to the
transfer of 1.0 position to the General Fund. The Development Services Departmentstaffing changes will
be full revenue offset, resulting in no fiscal impactto the Development Services Fund.
No additional appropriations are requested as this time, staff will request additional appropriations as part
of the Quarterly Financial Report.
ONGOING FISCAL IMPACT
There are no ongoing general fund impacts as the departments are utilizing existing funds or
reimbursementsfrom other funding sources to add or reclassify positions. Funding for non-general fund
positions are offset by Sewer Fund, Measure A or Development Services Fund revenues.
ATTACHMENTS
1.Revised Fiscal Year 2018-2019 Compensation Schedule Effective September 13, 2019
Staff Contacts: Courtney Chase, Director of Human Resources/Risk Management; Kelly Broughton, Director of
Development Services; RoxanaKennedy, Chief of Police; and William Valle, Director of Engineering
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE COMPENSATION
SCHEDULE AND CLASSIFICATION PLAN TO REFLECT
THE ADDITION AND DELETION OF VARIOUS POSITION
TITLES AND AMENDING THE AUTHORIZED POSITION
COUNTS IN VARIOUS DEPARTMENTS WITH A NET
INCREASE IN AUTHORIZED STAFFING
WHEREAS, Civil Service Rule 1.02(A), which applies to the City’s classified positions,
provides for necessary reviews and changes so that the City’s classification plan is kept current,
and that changes in existing classes, the establishment of new classes or the abolition of classes
are properly reflected in the classification plan; and
WHEREAS, in an effort to address the needs of various departmentsand the City's
workforce, the Human Resources Department, in conjunction with theaffected departments, is
proposingtheaddition and deletion of certain classifications;and
WHEREAS, a summary of the new classificationsand the E-Step salariesareas follows:
Position TitleBargaining GroupE Step
Digital Forensics Technician IACE$2,404.13bi-weekly
Digital Forensics Technician IIACE$2,764.75bi-weekly
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista, that it approves the amendments to the Compensation Schedule and Classification Plan to
reflect the change described above.
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BE ITFURTHERRESOLVED by the City Council of the City of Chula Vista, that it
approves the following changesto the fiscal year 2019-2020authorized position count with a
netincreasechangein authorized staffing:
DepartmentPosition TitleFTE
Accounting Assistant-1.00
Finance
Fiscal and Management Analyst1.00
Community ServicesFiscal Office Specialist1.00
Police
Digital Forensics Technician II2.00
(Measure A Fund)
Senior Civil Engineer1.00
Public Works Inspector II2.00
Associate Engineer3.00
Engineering
(Gas Tax/DevelopmentFees)
Storm Water Compliance Inspector II1.00
Senior Engineering Technician1.00
Associate Engineer1.00
Engineering (Sewer Fund)Associate Engineer-1.00
Senior Fiscal Office Specialist-1.00
Public Works
Senior Office Specialist1.00
Engineering Technician II-1.00
Development Services
(Development Services Fund)
Development Services Technician II1.00
Total City-Wide Position Changes (Net Increase/Decrease)11.00
Presented byApproved as to form by
Courtney ChaseGlen R. Googins
Director of Human Resources/Risk ManagementCity Attorney
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE REVISED FISCAL YEAR
2019-2020COMPENSATION SCHEDULE EFFECTIVE
SEPTEMBER 13, 2019, AS REQUIRED BY CALIFORNIA
CODE OF REGULATIONS, TITLE 2, SECTION 570.5
WHEREAS, California Code of Regulations, Title 2, Section 570.5 requires that, for
purposes of determining a retiring employee's pension allowance, the pay rate be limited to the
amount listed on a pay schedule that meets certain requirements and be approved by the
governing body in accordance with the requirements of the applicable public meeting laws; and
WHEREAS, therevisedFiscal Year 2019-2020Compensation Schedule ("Compensation
Schedule") waslastapproved by the City Council at their meeting of August 13, 2019; and
WHEREAS, any changes including but not limited to, across-the-board increases,
classification changes and salary adjustments approved subsequent to this date, will be reflected
on a revised Compensation Schedule and submitted to Council approval; and
WHEREAS, the revised Compensation Schedule effective September 13, 2019, reflects
the reflect the addition oftheDigital Forensics Technician I, Digital Forensics Technician II and
Development Automation Specialistposition titles.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula
Vista, that it hereby does adopt, as required by California Code of Regulations Title 2, Section
570.5, the revised Fiscal Year 2019-2020Compensation Scheduleeffective September 13, 2019,
a copy of which is available in the City Clerk’s Office, to reflect the addition of the Digital
Forensics Technician I, Digital Forensics Technician II and Development Automation Specialist
position titles.
Presented byApproved as to form by
Courtney ChaseGlen R. Googins
Director of Human Resources/Risk ManagementCity Attorney
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ORDINANCE NO.
ORDINANCE OF THE CITY OF CHULA VISTA AMENDING
CHULA VISTA MUNICIPAL CODE SECTION 2.05.010 TO
ADD THE UNCLASSIFIED POSITIONS OF FA CYBER
SECURITY PROGRAM MANAGER, FA NETWORK
ADMINISTRATOR III, AND FACILITIES FINANCING
MANAGER AND TO DELETE THEFA INFORMATION
SECURITY PROGRAM MANAGERPOSITION(FIRST
READING) (4/5 VOTE REQUIRED)
WHEREAS, the Human Resources Department has created new classifications to better
reflect the needs of the City’s workforce; and
WHEREAS, Chula Vista City Charter Section 500(a) requires that all new unclassified
management level positions be adopted by ordinance and a four-fifths vote of the Council.
NOW,THEREFORE,the City Council of the City of Chula Vista does ordain as follows:
Section I.That Section 2.05.010 of the Chula Vista Municipal Code is hereby
amended to read as follows:
2.05.10Unclassified positions established.
In addition to those unclassified positions specifically delineated in Section 500 of the Charter of
the City, there are established the unclassified positions entitled: Administrative Secretary
(Mayor, At Will), Administrative Services Manager, Animal Care Facility Administrator,
Animal Care Facility Manager, Assistant Chief of Police, Assistant Director of Development
Services, Assistant Director of Engineering, Assistant Director of Human Resources, Assistant
Director of Finance, Assistant Director of Public Works, Assistant Director of Recreation,
Budget and Analysis Manager, Building Official/Code Enforcement Manager, Chief of Staff,
Chief Sustainability Officer, City Engineer, City Librarian, Constituent Services Manager,
Deputy City Manager, Deputy Fire Chief, Development Services Department Director, Director
of Community Services, Director of Conservation and Environmental Services, Director of
Economic Development, Fire Division Chief, FA Accounting Technician, FA Administrative
Analyst I, FA Administrative Analyst II, FA Analyst,FA Cyber Security Program Manager,FA
Deputy Executive Director, FA Executive Director, FA Public Private Partnership and Exercise
Program Manager, FA Director of San Diego Law Enforcement Coordination Center, FA
Executive Assistant, FA Financial Manager, FA Geospatial Intelligence Analyst, FA Graphics
Designer/Webmaster, FA Information Security Program Manager, FA IVDC-LECC Executive
Director, FA Law Enforcement Coordination Center Information Technology Manager, FA
Intelligence Analyst, FA Management Assistant, FA Microcomputer Specialist, FA Network
Administrator I, FA Network Administrator II, FA Network Administrator III, FA Program
Analyst, FA Program Assistant Supervisor, FA Program Manager, FA Network Engineer, FA
Senior Financial Analyst, FA Senior Intelligence Analyst, FA Senior Program Assistant, FA
Senior Secretary, FA Supervisory Intelligence Analyst, Facilities Financing Manager,Finance
Manager,Housing Manager, Human Resources Operations Manager, Information Technology
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Ordinance No.
Page No. 2
Manager, Law Office Manager, Office Specialist (Mayor’s Office), Parks and Recreation
Administrator, Performance and Organizational Development Manager, Planning Manager,
Police Administrative Services Administrator, Police Captain, Policy Aide, Public Works
Superintendent, Purchasing Agent, Real Property Manager, Redevelopment and Housing
Manager, Revenue Manager, Risk Manager, Senior Council Assistant, and Traffic Engineer.
Section II.Severability
If any portion of this Ordinance, or its application to any person or circumstance, is for
anyreason held to be invalid, unenforceable or unconstitutional, by a court of competent
jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or
unconstitutionality shall not affect the validity or enforceability of the remaining portions of the
Ordinance, or its application to any other person or circumstance. The City Council of the City of
Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase
of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses
or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional.
Section III. Construction
The City Council of the City of Chula Vista intends this Ordinance to supplement, not to
or contradict, applicable state and federal law and this Ordinance shall be construed in
duplicate
light of that intent.
Section IV. Effective Date
This Ordinance shall take effect and be in force on the thirtieth day after its final passage.
Section V. Publication
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause
the same to be published or posted according to law.
Presented byApproved as to form by
Courtney ChaseGlen R. Googins
Director of Human Resources/Risk ManagementCity Attorney
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September 10, 2019File ID: 19-0413
TITLE
A.ORDINANCE OF THE CITY OF CHULA VISTA ESTABLISHING COMMUNITY CHOICE
AGGREGATION IN THE CITY OF CHULA VISTA (FIRST READING)
B.RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AND
AUTHORIZING THE EXECUTION OF THE JOINT EXERCISE OF POWERS AGREEMENT
CREATING THE SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY
RECOMMENDED ACTION
Council place the ordinance on first readingand adopt the resolution.
SUMMARY
As identified in the 2017 Climate Action Plan staff have conducted a Community Choice Aggregation
(CCA)feasibility study that was accepted by the City Council at the July 23, 2019City Council
meeting. That study found that a CCA program in Chula Vista is economically viable and would
th
provide various community benefits. On August 13City Staff returned to City Council with
information on requested CCA governance options and was directed to pursue the Regional CCA JPA
option, formally called the San Diego Regional Community Choice Energy Authority (SDRCCEA). To
join the Regional JPA City Council will need to approve the attached CCA ordinance andJPA
st
agreementbefore October 1. The other partners in the JPA are The Citiesof San Diego, La Mesa,
Encinitas, and Imperial Beach. The JPA Agreement is aligned with the City’s Climate Action Plan
goal of achieving 100% clean energy by 2035 and will help increase local control of energy
resources in our community. Later in the year the CCA board will meet and vote to approve CCA
formation documents, includingan Implementation Plan that will be filed with the California Public
Utilities Commission (CPUC).
ENVIRONMENTAL REVIEW
The proposed activity has been reviewed for compliance with the California Environmental Quality
Act (CEQA) and it has been determined that the activity is not a “Project” as defined under Section
15378 of the state CEQA Guidelines because it will not result in a physical change in the
environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity
is not subject to CEQA. Notwithstanding the foregoing, it has also been determined that the activity
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qualifies for an Exemption pursuant to Section 15061(b)(3) of the California Environmental Quality
Act State Guidelines. Thus, no environmental review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
The Sustainability Commission CCA Subcommittee supports City Council implementation of the
Regional JPA.
DISCUSSION
Background
As part of the 2017 Climate Action Plan,the Cityof Chula Vistaidentified several actions that should
be taken to provide more grid-delivered clean energy to help reach the City’s goal of offering our
community 100% clean,renewable energy by 2035. One of the implementation actions with the
largest potential to increase clean energy on the grid and reduce greenhouse gas emissions was
conducting a feasibility study to identify costs and benefits of pursuing a CCA program for Chula
Vista.In October of 2018,a Request for Proposal (RFP) was issuedseeking a consultantto conduct
a CCA feasibility report. In December,staff selected EES Consulting, Inc. (EES) and the contract was
approvedby City Council in February2019. Two CCA community workshops were held in Chula
Vista in May2019to informinterested residents on the basics of CCAsand what issues would be
coveredin the feasibility study. City Council unanimously accepted the CCA Feasibility Report on
th
July 23, 2019and directed staff to return on August 13to further discussthe potential of either
partnering with the City of San Diego through the “Regional JPA” governance option or creating an
enterprise CCA and partnering with other enterprise CCAs through the “Enterprise JPA” governance
option. City Council directed staffto pursue the Regional JPA approach.
CCA and JPA Formation
In early2019as the CCA Feasibility Study was underway, staff from the City of San Diego reached
out to jurisdictions thathad expressed interest in pursuing CCA. The Cityof San Diegohosted
regularmeetings with executive level staff from the County and several cities that resulted in the
development of a JPA term sheet and a subsequent JPA Agreement negotiated over several months
with input from the various municipalities and several local stakeholder groups.
The final version of the JPA Agreement is attached to this report and will be also considered by the
City ofLa Mesa on September 10, the City of Encinitas on September 11,the City of Imperial Beach
on September 17thand the City of San Diego’s Environment Committee on September 12.Cityof
San Diego staff have alsodeveloped a detailed timeline/workplan showing the pathway to a 2021
launchandcontracted for CCA finance and implementation support.
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Pursuit of a Regional JPA
Per California law, in order for a JPA to be formed, at least 2 municipalities must agree to become
members. Although the City of San Diego could have pursued a CCA on its own,the Mayor and
CityCouncil established its preference for a regional JPA governance model, primarily due to
financial and legal separations that protect a JPA member’s general fund as well as the opportunity
to work cooperatively with other jurisdictions throughout the San Diego region. Additional
reasons to pursue a regional JPA include:
(a)Market benefits resulting from economies of scale;
(b)Ability to quickly repay start up debt, fund reserves and roll-out regional customer programs;
(c)Organizational efficiencies that avoid regional redundancy, confer cost benefits and support
regional economic development goals;
(d)Ability to achieve regionwide carbon reduction and renewable power goals faster;
(e)Consistency for San Diego region ratepayers which builds confidence and reduces customer
confusion; and
(f)A unified voice through which to exercise influence with State regulatory and legislative
bodies.
Key Elements of the JPA Agreement
As noted, City staffhave been meeting regularlywith their counterparts in neighboring cities to
negotiate the terms of a San Diego Regional CCA JPA Agreement. The JPA Agreement serves as the
“constitution” of a new Authoritythat will be formed for the purpose of implementing and
operating a CCA program for the City and other Founding Members that adopt the required
ordinances by October 1 of this year. Once the JPA Board is seated in late October, the Boardwill
take the next steps in hiring key vendors and Authoritystaff, setting a myriad of operational
policies, establishing the Authority’s power mix, rates and programs, and moving toward
customer enrollment and launch planned for 2021.
During the months of meetingsand negotiations, several issues and provisions of the JPA were
discussed. The following provides a brief summary of the most debated issues and how they were
ultimately resolved to achieve consensus among multiple municipalities and stakeholder groups,
some of whom had opposing views.
IssueConcern/RequestResolution
Weighted VotingThe City of San Diego Understanding that the weighted vote
has too much power in a is rarely used (only once in the 9
weighted vote situation; years CCAs have existed) and
Prefer equal vote (1acknowledging the concerns of the
smaller cities, the City of San Diego
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member, 1 vote) in all made the following concessions in
cases.Section 4.11.2 to mitigate concerns: 1)
three (not 2) directors are needed to
call for a weighted vote after an equal
vote; 2) the City agreed to cap its
weighted vote at 49% even though its
annual energy usage puts it at ~75%;
3) it takes 67% or 2/3rds vote to
overturn an action taken by equal
vote; 4) no action can be taken solely
by weighted vote.
Environmental GoalsOriginal JPA draft Updated language in recital 6(c) and
language not specific section 2.3 to achievea 100%
enough w/r/t renewable renewable energy portfolio by 2035,
energy goals, use of or sooner. Strengthened language in
unbundled RECs, and section 6.4 to prioritize use of
coal/nuclear sources “category1” and avoid (but not
prohibit) use of “category2 and 3”
1
RECs; stated no procurement of coal
and avoidance of nuclear resources.
BoardSmaller cities requested
Amended section 4.1.3 to say that
Representationflexibility with Alternate directors need not be a
appointment of
member of the City’s governing body.
alternate Director.
Local Power Local power Amended language in Recital 6(e) to
Developmentdevelopment is not give local power procurement priority
adequately prioritized weighting.
Customer ProgramsConcern about Language amended in Recital 6(g) and
subsidizing programs section 4.6.1 to clarify that programs
serving only certain will serve all SDRCCEA customers and
customers; concern
also allow support of community-
about limiting benefit to
based energy/sustainability
local community groupsprograms.
MemberConcern about asking Amended language in section 7.3.4
Contributionsfor member that clarifies that parties are not
contributions to the JPArequired to make financial
contributions to the JPA.
CommitteesRequest Community Amended language in section 5.10.3
Advisory Cmte (CAC) be to require a CAC; left technical
committee permissive since staff will
1
Category 1 RECs are bundled together with procurement of energy delivered to a California Balancing Authority
(CBA). Category 2 RECs come from the procurement of energy from a Renewable Portfolio Standard eligible facility
that has not already committed energy to another party and energy is not sold back to the generator; renewable
energy is firmed and shaped with substitute energy scheduled into a CBA within a calendar year. Category 3 RECs are
unbundled and procured separately from underlying energy.
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required rather than be energy/utility experts and the
permissiveBoard/CEO can decide once formed.
Coalition/CommunityEquity/Communities of Addedlanguage as new Recital 6 (m):
ConcernsConcernPursue purposeful and focused
investment in communities of
concern, prioritization of local
renewable power and workforce
development and policies and
programs centered on economic,
environmental and social equity.
Coalition/CommunityPrevailing wageAdded prevailing wage jobs,to the
Concernsquantifiable economic benefitsthat
are listed in recital 6 (h).
Coalition/CommunityCollective bargainingAmended language in Recital 6 (O) to
Concernsinclude “efficient consideration of
petitions to unionize”.
Timing to Support 2021 Launch
The desire to launch CCA service in 2021 has been a consistent objective among the cities
interested in forming a regional JPA. In February 2018, the California Public Utilities Commission
issued Resolution E-4907 establishing a registration process and timeline for new and expanding
CCAs. E-4907 requires a one-year period between submittal of a CCA Implementation Plan, which
must occur on or before January 1 of a given year, and program launch/customer enrollment.
Thus, in order for SDRCCEA to begin serving customers in 2021 as is the stated goal, the JPA must
submit to the CPUC an Implementation Plan and Statement of Intent by January 1, 2020 at the
latest.
We recognize that this is an extremely tight timeline with many tasks to complete by year end. To
meet the State-mandated timeline, staff has established a deadline of October 1, 2019 for
interested jurisdictions to adopt the required CCA/JPA ordinances in order to seat the Board by
late October. This leaves November and December to set power targets, update load projections
and complete the Implementation Plan, which we hope to have adopted and submitted prior to the
holiday break. We are on target to complete these and other required tasks within the established
timeframe.
Itis worth noting that any delay such as a need to renegotiate JPA terms will make a 2021
program launch virtually impossible. For this reason, we respectfully ask that Council consider
this agenda item a pass/fail vote since other cities have already set a vote toadopt their
ordinances and there will be no time to renegotiate terms and schedule new votes in advance of
the October 1 deadline.
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Risks of Delay
Given the time sensitivity, staff has been asked to provide an explanation of the risks of delaying
implementation by a year and launching in 2022. The following risks have been identified:
(a)Environmental: The environmental costs of delaying one year slows the momentum toward
achieving the City’s CAP targetsto reach 100% renewable electricity supply city-wide by 2035,
or potentially sooner with a CCA.In light of other emissions sources being more difficult to
achieve, moving this initiative forward demonstrates commitment by the City of Chula Vistato
implementing our CAP.
(b)Economic: The economic impacts of a delay affect ratepayers who will continue to pay higher
electric generation rates as well as the new Authoritywhich may be strapped with higherexit
fees and higher costs of power due to market fluctuationswith one year less of revenue
collection. Both of these conditions affect the Authority’s ability to offer customer rate
discounts.
(c)Regulatory: The regulatory and legislative landscape relating to energy supply and markets is
dynamic. Without more substantial representation by the San Diego region, decisions will
continue to be made without true representation of our residents’ and businesses’ best
interests.
(d)Political: Many San Diego jurisdictions are considering CCA under various governance models.
If SDRCCEA does not move forward toward a 2021 launch, it is possible that cities previously
committed to the regional JPA effort will go elsewhere for CCA partnerships.
Board Appointments
Asper Section 4.1 of the JPA Agreement, each member agency is allocated oneBoard members
becausethere are at least 5 members of the JPA. The Board will be seated at the end of October, so
appointments need to be made by September to allow time for scheduling and briefings.
Next Steps
The following is a brief timeline of the steps required between now and the end of the year to
meet the January 1 Implementation Plan submission deadline. Please keep in mind that there are
additional tasks to be completed in the coming months, but these are the main ones:
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DATEACTION ITEM
Mid-September Issue Request For Proposals for credit and banking services and
wholesale power services(City of San Diego)
October 1Deadline for jurisdictions to pass CCA and JPA ordinances; Appoint
JPA Board members
Late OctoberFirst JPA Board meeting –Orientation and initial direction for
Implementation Plan
Early NovemberSelect power service vendor(s) and review credit and banking
proposals
NovemberSecond Board Meeting; Board to review initial draft of
Implementation Plan and bank partner finalists
Mid-DecemberThird Board Meeting –Adopt Implementation Plan and select
banking partner
December 20 Submit SDRCCEA Implementation Plan to the CPUC for certification
(prior to Jan. 1,
2020)
DECISION-MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site-
and consequently, the real property holdings of the City Council members do not create a
specific
disqualifying real property-related financial conflict of interest under the Political Reform Act (Cal.
Gov't Code § 87100, et seq.).
Staff is not independently awareofand has not been informed by any City Council member, of any
other fact that may constitute a basis for a decision-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
Joining the Regional JPA CCA would be doneusing existing departmental fundsresulting in no new
fiscal impact in the current year.
ONGOING FISCAL IMPACT
Joining the Regional JPA CCA would be done using existing departmental fundsresulting in no
fiscal impacts additionally.
ongoing
ATTACHMENTS
1.San Diego Regional Community Choice Energy Authority Joint Powers Agreement
Staff Contact: Cory Downs
Page|7
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ORDINANCE NO.________
ORDINANCE OF THE CITY OF CHULA VISTA
ESTABLISHING COMMUNITY CHOICE AGGREGATION IN
THE CITY OF CHULA VISTA
WHEREAS, Assembly Bill 117 (Stat. 2002, ch.838; see California Public Utilities Code
section 366.2; the “Act”), added statutes to the Public Utilities Code authorizing local
governmental bodiesto individually or jointly provide retail electric commodity service to an
aggregation of customers within their jurisdictions, a service referred to as Community Choice
Aggregation(CCA); and
WHEREAS, the City of Chula Vista(City) adopted a Climate Action Plan in 2017 which
contains a goal for 100% percent of electricity used in the City to be generated from renewable
fuel sources by 2035; and
WHEREAS, since October, 2018the City has been actively investigating the feasibility of
commencing CCA servicefor electric customers within the City,with the objective of making
greaterrenewable electric portfolio content available to customers, providing greaterlocal
involvement over the provisionof electric commodity services,and promoting competitive
commodity rates;and
WHEREAS, the City completed aCCA Feasibility Study which determined that a CCA
program could result in local benefits including the use of renewable energy at levels above the
State Renewables Portfolio Standard,the provision of competitive ratesto consumers,and
economic opportunity for the City; and
WHEREAS, pursuant to Sections 331.1(b) and366.2 of the Act, two or more entities
authorized to be a community choice aggregator may participate jointly in a CCA program through
a Joint Powers Authorityestablished pursuant to Chapter 5 (commencing with Section 6500) of
Division 7 of Title 1 of the Government Code, if each entity adopts the ordinance required by
Public Utilities Section 366.2; and
WHEREAS, the City wishes to implement a CCA program at this timethrough a Joint
Powers Authority together with other Founding Member local governmentswhich will be called
the San Diego Regional Community Choice Energy Authority (SDRCCEA); and
WHEREAS, under Public Utilities Code section 366.2, customers have the right to opt out
of the CCA program and continue to receive bundled electric commodity service from the
incumbent utility; and
WHEREAS, Public Utilities Code section 366.2(c)(12)provides that an entity which elects
to implement a CCA program within its jurisdiction must do so by ordinance; and
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WHEREAS, this ordinance is exempt from the requirements of the California
Environmental Quality Act (CEQA) pursuant to the State CEQA Guidelines, as it is not a “project”
and has no potential to result in a direct or reasonably foreseeable indirect physical change to the
environment. (14 Cal. Code Regs. § 15378(a).) Further, the ordinance is exempt from CEQA as
there is no possibility that the ordinance or its implementation would have a significant negative
effect on the environment. (14 Cal. Code Regs.§ 15061(b)(3).)
NOW, THEREFORE,the City Council of the Cityof Chula Vista does ordainas follows:
Section I. That the recitals set forth above are true and correct and are incorporated as
though fully set forth herein.
Section II. Based upon the findings and declarations set forth in this ordinance, and to
provide businesses and residents within the jurisdictional boundaries of the City with a choice of
electric commodity providers and with the benefits described in the recitals above, the City Council
hereby elects pursuant to Public Utilities Code section 366.2(c)(12) to implement a CCA program
within the jurisdiction of the Cityof Chula Vistaby participating in the CCA program of the
SDRCCEA, under the termsand conditions provided in itsJoint Powers Agreement, on file with
the Office of the City Clerk as Document No. ACN 19102.
Section III.Severability
If any portion of this Ordinance, or its application to any person or circumstance, is for any
reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction,
that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality
shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its
application to any other person or circumstance. The City Council of the City of Chula Vista
hereby declares that it would have adopted each section, sentence, clause or phrase of this
Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or
phrases of the Ordinance be declared invalid, unenforceable or unconstitutional.
Section IV.Construction
The City Council of the City of Chula Vista intends this Ordinance to supplement, not to
duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in
light of that intent.
Section V. Effective Date
This Ordinance shall take effect and be in force on the thirtieth day after its final passage.
Section VI. Publication
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause
the same to be published or posted according to law.
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Presented byApproved as to form by
Eric C. CrockettGlen R. Googins
Director of Economic DevelopmentCity Attorney
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RESOLUTION NO. __________
RESOLUTION OF THE CITY COUNCIL OF THE CITY OFCHULA VISTA
APPROVING AND AUTHORIZING THE EXECUTION OF THE JOINT
EXERCISE OF POWERS AGREEMENT CREATING THE SAN DIEGO
REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY
WHEREAS, Section 6500et seq. of the Government Code authorizes the joint exercise by two
or more public agencies of any power common to them as a Joint Powers Authority ("JPA"); and
WHEREAS, Public Utilities Code Section 366.2(c)(12) specifically authorizes two or more cities
and counties to conduct a Community Choice Aggregation (CCA) program through the creation
of a Joint Powers Authority; and
WHEREAS, the creation of a JPA would allow its members to share resources and jointly
provide and achieve the environmental and economic benefits of a CCA program on a regional
basis; and
WHEREAS, the City of Chula Vistadesires to enter into a Joint Exercise of Powers Agreement
to establish the San Diego Regional Community Choice Energy Authority along with Cities of
San Diego, La Mesa, Encinitas, and Imperial Beach, and any additional members approved by
the JPA Board in the future.
NOW, THEREFORE, the City Council of the City of Chula Vista hereby resolves as follows:
1.The Joint Exercise of Powers Agreement Creating the San Diego Regional Community
Choice Energy Authority (SDRCCEA) is hereby approved, and the Mayor is directed and
authorized to execute the Agreement in substantially the form attached hereto as Exhibit
A, together with minor technical or clerical corrections, if any,as may be approved by the
City Attorney.
2.Staff is authorized and directed to take such further actions as may be necessary and
appropriate to implement the intent and purposes of this Resolution.
3.This Resolution and the creation of the SDRCCEA is exempt from the requirements of
the California Environmental Quality Act (CEQA), as it involves organizational and
administrative activities of government that will not result in direct or indirect physical
changes on the environment, and therefore is not considered a “project.” (14 Cal. Code
Regs. §15378(b)(5).) Further, the resolution is exempt from CEQA as there is no
possibility that the resolutionor its implementation would have a significant negative
effect on the environment,pursuant to the StateCEQA Guidelines (14 Cal. Code Regs.§
15061(b)(3).)
Presented by
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Eric Crockett
Director of Economic Development
Approved as to form by
Glen R. Googins
City Attorney
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San Diego Regional Community Choice Energy Authority
-Joint Powers Agreement –
Effective _____________
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SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
JOINT POWERS AGREEMENT
SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY
JOINTPOWERS AGREEMENT
This Joint Powers Agreement (the “Agreement”), effective as of _____________, is made by the
Founding Members of San Diego Regional Community Choice Energy Authority (Authority)
including cities of San Diego, Chula Vista, La Mesa, Encinitas, and Imperial Beach, and entered
into pursuant to the provisions of Title 1, Division 7, Chapter 5, Article 1 (Section 6500 et seq.)
of the California Government Code relating to the joint exercise of powers amongthe public
agencies set forth in Exhibit B.
RECITALS
1.The Parties are public agencies sharing various powers under California law, including
but not limited to the power to purchase, supply, and aggregate electricity for themselves
and their inhabitants.
2.SB 350, adopted in 2015, mandates a reduction in greenhouse gas emissions to 40 percent
below 1990 levels by 2030 and to 80 percent below 1990 levels by 2050. In 2018, the
State Legislature adopted SB 100, which directs the Renewable Portfolio Standard to be
increased to 60% renewable by 2030 and establishes a policy for eligible renewable
energy resources and zero-carbon resources to supply 100 percent of electricity retail
sales to California end-use customers by 2045.
3.The purposes for the Founding Members (as such term is defined in Exhibit A) entering
into this Agreement include procuring/developing electrical energy for customers in
participating jurisdictions, addressing climate change by reducing energy-related
greenhouse gas emissions, promoting electrical rate price stability, and fostering local
economic benefits such as job creation, local energy programs and local power
development. It is the intent of this Agreement to promote the development and use of a
wide range of renewable energy sources and energy efficiency programs, including but
not limited to State, regional, and local solar and wind energy production and energy
storage.
4.The Parties to this Agreement desire to establish a separate public agency, known as the
San Diego Regional Community Choice Energy Authority ("Authority"), under the
provisions of the Joint Exercise of Powers Act of the State of California (Government
Code Section 6500 et seq.) ("Act") in order to collectively study, promote, develop,
conduct, operate, and manage energy programs.
5.The Founding Members have each adopted an ordinance electing to implement through
the Authority a Community Choice Aggregation program pursuant to California Public
Utilities Code Section 366.2 ("CCA Program"). The first priority of the Authority will be
the consideration of those actions necessary to implement the CCA Program on behalf of
participating jurisdictions.
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SAN DIEGO REGIONAL COMMUNITY CHOICE ENERGY AUTHORITY –
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6.By establishing the Authority, the Parties seek to:
(a)Provide electricity service to residents and businesses located within the municipal
boundaries of the public agencies that signed on to this agreement in a responsible,
reliable, innovative, and efficient manner;
(b)Provide electric generation rates to all ratepayers that are lower or at least
competitive with those offered by the Investor Owned Utility (IOU), San Diego Gas
& Electric (SDG&E), for similar products;
(c)Offer differentiated energy products for standard commodity electric service that
provide a cleaner power portfolio than that offered by the IOU for similar service
and a 100 percent renewable content option in which communities and customers
may "opt-up" and voluntarily participate, with the ultimate objective of achieving—
and sustaining—100 percent renewable energy availability and usage, at competitive
rates, within the Authority service territory by no later than 2035, and then beyond;
(d)Develop an aggregate electric supply portfolio with overall lower greenhouse gas
(GHG) emissions than the IOU, and one that supports near-term achievement of the
Parties' greenhouse gas reduction goals and renewable electricity goals;
(e)Prioritize the use and development of local, cost-effective renewable and distributed
energy resources in ways that encourage and support local power development and
storage, avoids the use of unbundled renewable energy credits, and excludes coal
and avoids nuclear contracts;
(f)Promote an energy portfolio that incorporates energy efficiency and demand
response programs and pursues ambitious energy consumption reduction goals;
(g)Provide a range of energy product and program options, available to all Parties and
customers, that best serve their needs, their local communities, and support regional
sustainability efforts.
(h)Demonstrate quantifiable economic benefits to the region including prevailing wage
jobs, local workforce development, economic development programs, new energy
programs, and increased local energy investments;
(i)To the extent authorized by law, support a stable, skilled, and trained workforce
through a variety of mechanisms, including neutrality agreements, that are designed
to ensure quality workmanship at fair and competitive rates and which benefit local
residents by delivering cost-effective clean energy programs and projects;
(j)Promote supplier and workforce diversity, including returning veterans and those
from regional disadvantaged and under-represented communities of concern, to
reflect the diversity of the region;
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(k)Promote personal and community ownership of renewable generation and energy
storage resources, spurring equitable economic development and increased resilience
throughout the region.
(l)Ensure that low-income households are provided with affordableelectric rates and
have access to special utility rates including California Alternative Rates for Energy
(CARE) and Family Electric Rate Assistance (FERA) programs;
(m)Pursue purposeful and focused investment in communities of concern, prioritization
of local renewable power, workforce development, and policies and programs
centered on economic, environmental, and social equity.
(n)Use discretionary program revenues to support the Authority’s long-term financial
viability, enhance customer rate stability, and provide all Parties and their customers
with access to innovative energy programs, projects and services throughout the
region; and
(o)Create an administering Authority that is financially sustainable, responsive to
regional priorities, well-managed, and a leader in fair and equitable treatment of
employees through adopting appropriate best practice employment policies,
including but not limited to efficient consideration of petitions to unionize,
participating in collective bargaining, if applicable,and providing appropriate wages
and benefits.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and conditions
hereinafter set forth, it is agreed by and among the Parties as follows:
1.D EFINITIONS A ND E XHIBITS
1.1Definitions. Capitalized terms used in this Agreement shall have the meanings
specified in ExhibitA, unless the context requires otherwise.
1.2Documents Included. This Agreement consists of this document and the
following exhibits, all of which are hereby incorporatedinto this Agreement:
ExhibitA: Definitions
ExhibitB: List of Founding Members
ExhibitC: Annual Energy Use by Jurisdiction
ExhibitD: Voting Shares of Founding Members
ExhibitE: Signatures
2.F ORMATION OF THE SANDIEGOREGIONALCOMMUNITYCHOICEENERGY
AUTHORITY
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2.1Effective Date and Term. This Agreement shall become effective and the
Authority shall exist as a separate public agency on the date this Agreement is
executed by the City of San Diegoand at least one other public agency after the
adoption of the ordinances required by Public Utilities Code Section366.2(c)(12).
The Authority shall provide notice to the Parties of the Effective Date. The
Authority shall continue to exist, and this Agreement shall be effective, until the
Agreement is terminated in accordance with Section 8.4 (Mutual Termination) of
this Agreement, subject to the rights of the Parties to withdraw from the
Authority, pursuant to Section 8.1.
2.2Formation of the Authority. Under the Act, the Parties hereby create a separate
joint exercise of power agency which is named San Diego Regional Community
Choice Energy Authority. Pursuant to Sections 6506 and 6507 of the Act, the
Authority is a public agency separate from the Parties. The jurisdiction of the
Authority shall be all territory within the geographic boundaries of the Parties;
however, the Authority may, as authorized under applicable law, undertake any
action outside such geographic boundaries as is necessary and incidental to the
accomplishment of its purpose.
2.3Purpose. The purpose and objectives of this Agreement are to establish the
Authority, to provide for its governance and administration, and to define the
rights and obligations of the Parties. This Agreement authorizes the Authority to
provide opportunities by which the Parties can work cooperatively to create
economies of scale, provide for stronger regulatory and legislative influence at the
State level, and implement sustainable energy initiatives that reduceenergy
demand, increase energy efficiency, and advance the use of clean, efficient, and
renewable resources in the region for the benefit of all the Parties and their
constituents, including, but not limited to, establishing and operating a
Community Choice Aggregation program.
2.4Addition of Parties. After the initial formation of the Authority by the Founding
Members, any incorporated municipality, county, or other public agency
authorized to be a community choice aggregator under Public Utilities Code
Section 331.1located within the service territory of the IOU may apply to and
become a member of the Authority if allthe following conditions are met:
2.4.1The adoption by a two-thirds vote of the Board satisfying the requirements
described in Section 4.11 (Board Voting) of this Agreement, of a
resolution authorizing membership into the Authority;
2.4.2The adoption by the public agency of a CCA ordinance as required by
Public Utilities Code Section 366.2(c)(12) and approval and execution of
this Agreement and other necessary program agreements by the public
agency;
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2.4.3Payment of a membership fee, if any, as may be required by the Board to
cover Authority costs incurred in connection with adding the new party;
and
2.4.4Satisfaction of any other reasonable conditions established by the Board.
Pursuant to this Section 2.4 (Addition of Parties), all Parties shall be
required to commence electric service as soon as is practicable within
statutory and regulatory requirements, as determined by the Board and
Authority management,as a condition to becoming a Party to this
Agreement.
2.5Continuing Participation. The Parties acknowledge that membership in the
Authority may change by the addition, withdrawal and/or termination of Parties.
The Parties agree to participate with such other Parties as may later be added by
the Board, as described in Section 2.4 (Addition of Parties) of this Agreement.
The Parties also agree that the withdrawal or termination of a Party shall not
affect this Agreement or the remaining Parties' continuing obligations under this
Agreement.
3.P OWERS
3.1General Powers.The Authority shall have the powers common to the Parties
which are necessary or appropriate to the accomplishment of the purposes of this
Agreement, subject to the restrictions set forth in Section 3.4 (Limitation on
Powers) of this Agreement.
3.2Specific Powers. Specific powers of the Authority shall include, but not be
limited to, each of the following powers, which may be exercised at the discretion
of the Board:
3.2.1make and enter into contracts;
3.2.2employ agents and employees, including but not limited to a Chief
Executive Officer;
3.2.3acquire, own, contract, manage, maintain, and operate any buildings,
public works, improvementsor other assetsincluding but not limited to
public electric generation resources;
3.2.4acquire property for electric generation/interconnection purposes by
eminent domain, or otherwise, except as limited under Section 6508 of the
Act and Sections 3.6 and 4.12.3 of this Agreement, and to hold or dispose
of any property; provided, however, the Authority shall not exercise the
power of eminent domain within the jurisdiction of a Party over its
objection;
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3.2.5lease any property;
3.2.6sue and be sued in its own name;
3.2.7incur debts, liabilities, and obligations, including but not limited to loans
from private lending sources pursuant to its temporary borrowing powers
authorized by law pursuant to Government Code Section 53850 et seq. and
authority under the Act;
3.2.8issue revenue bonds and other forms of indebtedness;
3.2.9apply for, accept, and receive all licenses, permits, grants, loans or other
aids from any federal, state or local public agency;
3.2.10form independent corporations or entities, if necessary, to carry out energy
supply and energy conservation programs at the lowest possible cost or to
take advantage of legislative or regulatory changes;
3.2.11submit documentation and notices, register, and comply with orders,
tariffs and agreements for the establishment and implementation of the
CCA Program and other energy programs;
3.2.12adopt rules, regulations, policies, bylaws and procedures governing the
operation of the Authority;
3.2.13make and enter into service agreements relating to the provision of
services necessary to plan, implement, operate and administer the CCA
Program and other energy programs, including the acquisition of electric
power supply and the provision of retail and regulatory support services;
3.2.14enter into neutrality agreements where the Authority has a proprietary or
significant financial interest, negotiate project labor agreements,
community benefits agreements and collective bargaining agreements with
the local building trades council and other interested parties;and
3.2.15receive revenues from sale of electricity and other energy-related
programs.
3.3Additional Powers to be Exercised.In addition to those powers common to
each of the Parties, the Authority shall have those powers that may be conferred
upon itbylaw and by subsequently enacted legislation.
3.4Limitation on Powers. As required by Section 6509 of the Act, the powers of
the Authority are subject to the restrictions upon the manner of exercising power
possessed by the Cityof Encinitasand any other restrictions on exercising the
powers of the Authority that may be adopted by the Board.
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3.5Obligations of the Authority. The debts, liabilities, and obligations of the
Authority shall not be the debts, liabilities, and obligations of any of the Parties
unless a Party agrees in writing to assume any of the debts, liabilities, and
obligations of the Authority with the approval of its Governing Body, in its sole
discretion. In addition, pursuant to the Act, no Director shall be personally liable
on the bonds or subject to any personal liability or accountability by reason of the
issuance of bonds.
3.6Compliance with Local Zoning and Building Laws.Notwithstanding any other
provisions of this Agreement or state law, any facilities, buildings or structures
located, constructed or caused to be constructed by the Authority within the
territory of the Authority shall comply with the General Plan, zoning and building
laws of the local jurisdiction within which the facilities are constructed.
3.7Compliance with the Political Reform Act and Government Code
Section1090. The Authority and its officers and employees shall comply with
the Political Reform Act (Government Code Section 81000 et seq.) and
Government Code Section 1090 et seq. The Boardshall adopt a Conflict of
Interest Code pursuant to Government Code Section 87300. The Board may
adopt additional conflict of interest regulations in the Operating Policies and
Procedures.
4.GOVERNANCE
4.1Board of Directors.
4.1.1The Governing Body of the Authority shall be a Board of Directors
("Board") consisting of two Directors for each Party appointed in
accordance with Section 4.2 (Appointment and Removal of Directors) of
this Agreement until there are five or more Parties ofthe Authority. When
the fifth Party joins the Authority, the number of Directors per Party shall
be reduced to one Director per Party; each Party shall determine which
Director shall be that Party’s representative on the Board within 45 days of
the date the fifth Party joins the Authority.
4.1.2Each Director(s) must be a member of the Governing Body of the
appointing Party. Each Director shall serve at the pleasure of the
Governing Body of the Party whom appointed such Director and may be
removed as Director by such Governing Body at any time. If at any time a
vacancy occurs on the Board, then a replacement shall be appointed to fill
the position of the previous Director within 45 days after the date that
position becomes vacant.
4.1.3Once the Authority reaches five members and becomes governed by a
single appointed Director for each Party, then the Governing Body of each
Party shall appoint an alternate to serve in the absence of the primary
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Director. The alternate is not required to be a member of the Governing
Body of the appointing Party. The alternate shall have all the rights and
responsibilities of the primary Director when serving in his/her absence.
4.1.4Any change to the size and composition of the Board other than what is
described in this section shall require amendment of this Joint Powers
Agreement in accordance with Section 4.12.
4.2Appointment and Removal of Directors.The Directors shall be appointed and
may be removed as follows:
4.2.1The Governing Body of each Party shall appoint and designate in writing
two regular Directors if there are four or fewer Parties to this Agreement,
or one regular Director if there are five or more Parties to this Agreement,
who shall be authorized to act for and on behalf of the Party on matters
within the powers of the Authority. The Governing Body of each Party
shall appoint and designate in writing one alternate Director if there are
five or more Parties in the Authority who may vote on matters when the
regular Director is absent from a Board meeting. The alternate Director
may vote on matters in committee, chair committees, and fully participate
in discussion and debate during meetings. All Directors and alternates
shall be subject to the Board's adopted Conflict of Interest Code.
4.2.2The Authority’s policies and procedures,to be developed and approved by
the Board, pursuant to Section 3.2.12, shall specify the reasons for and
process associated with the removal of an individual Director for cause.
Notwithstanding the foregoing, no Party shall be deprived of its right to
seat a Director on the Board and any such Party for which its Director
and/or alternate Director have been removed may appoint a replacement.
4.3Director Compensation. The Board may adopt by resolution a policy relating to
the compensation of its Directors.
4.4Terms of Office. Each Party shall determine the term of office for their regular
and alternate Director.
4.5Purpose of Board. The general purpose of the Board is to:
4.5.1Provide structure for administrative and fiscal oversight;
4.5.2Retain a Chief Executive Officer to oversee day-to-day operations of the
Authority;
4.5.3Retain legal counsel;
4.5.4Identify and pursue funding sources;
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4.5.5Set policy;
4.5.6Maximize the utilization of available resources; and
4.5.7Oversee all Committee activities.
4.6Specific Responsibilities of the Board. The specific responsibilities of the
Board shall be as follows:
4.6.1Identify Party and ratepayer needs and requirements;
4.6.2Formulate and adopt an annual budget prior to the commencement of the
fiscal year;
4.6.3Develop and implement a financing and/or funding plan for ongoing
Authority operationsand capital improvements, if applicable;
4.6.4Retain necessary and sufficient staff and adopt personnel and
compensation policies, rules and regulations;
4.6.5Develop a workforce policy that promotes a local, sustainable, and
inclusive workforce;
4.6.6Adopt policies for procuring electric supply and operational needs such as
professional services, equipment and/or supplies;
4.6.7Develop and implement a Strategic Plan to guide the development,
procurement, and integration of renewable energy resources consistent
with the intent and priorities identified in this Agreement;
4.6.8Adopt rules for the disposal of surplus property;
4.6.9Establish standing and ad hoc committees as necessary to ensure that the
interests of the Authority and concerns of each Partyare represented to
ensure effective operational, technical, and financial functioning of the
Authorityandmonitor the distribution and usage of Authority programs
and benefits throughout the Authority’sservice territory;
4.6.10The setting of retail rates for power sold by the Authority and the setting
of charges for any other category of retail service provided by the
Authority;
4.6.11To wind up and resolve all obligations of the Authority in the event the
Authority is terminated pursuant to Section 8.2;
4.6.12Address any concerns of consumers and customers;
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4.6.13Conduct and oversee Authority operational audits at intervals not to
exceed three years including review of customer access to Authority
programs and benefits, where applicable;
4.6.14Arrange for an annual independent fiscal audit;
4.6.15Adopt such bylaws, rules and regulations as are necessary or desirable for
the purposes hereof; provided that nothing in the bylaws, rules and
regulations shall be inconsistent with this Agreement;
4.6.16Exercise the Specific Powers identified in Sections 3.2 and 4.6 except as
those which the Board may elect to delegate to the Chief Executive
Officer; and
4.6.17Discharge other duties as appropriate and/or required by law.
4.7Startup Responsibilities. The Authority shall have the duty to do the following
within one year of the Effective Date of the Agreement:
4.7.1Oversee the preparation of,adopt, and updatean implementation plan,
pursuant to Public Utilities Code Section 366.2(c)(3), for electrical load
aggregation;
4.7.2Prepare a statement of intent, pursuant to Public Utilities Code
Section366.2(c)(4), for electrical load aggregation;
4.7.3Encourage other qualified public agencies to participate in the Authority;
4.7.4Obtain financing and/or funding as is necessary to support start up and
ongoing working capital;
4.7.5Evaluate the need for, acquire, and maintain insurance;
4.7.6Consider and take action on the assumption of City of San Diego
consulting and services agreements related to the Authority’s start up and
implementation activities, subject to the City of San Diego continuing to
advance payment, or ifanother source is secured by the JPA, until such
time as an agreement is executed for payment of Initial Costs as specified
under Section 7.3.2.
4.8Meetings and Special Meetings of the Board. The Board shall hold at least four
regular meetings per year, but the Board may provide for the holding of regular
meetings at more frequent intervals. The date, hour, and place of each regular
meeting shall be fixed annually by resolution of the Board. The location of
regular meetingsmay rotate for the convenience of the Parties, subject to Board
approvaland availability of appropriate meeting space. Regular meetings may be
adjourned to another meeting time. Special meetings of the Board may becalled
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in accordance with the provisions of Government Code Section54956. Directors
may participate in meetings telephonically, with full voting rights, only to the
extent permitted by law. Board meeting agendas generally shall be set, in
consultation with the Board Chair, by the Chief Executive Officer appointed by
the Boardpursuant to Section 5.5. The Board itself may add items to the agenda
upon majority vote pursuant to Section 4.11.1.
4.9Brown Act Applicable. All meetings of the Board shall be conducted in
accordance with the provisions of the Ralph M. Brown Act (Government Code
Section 54950, et seq.).
4.10Quorum. A simple majority of the Directors shall constitute a quorum. No
actions may be taken by the Board without a quorum of the Directors present. If a
Party fails to be represented by a Director(s) or alternate Director in more than
one meeting in a 12-month period, the Board may take action bypublicly noticing
the Party that they are at risk of lack of representation within the Authority.
4.11Board Voting.
4.11.1Equal Vote. Once a quorum has been established, in general, except when
Special Voting is expressly required pursuant to Section 4.12 hereof,
Board action shall require votes of a majority of the total number of the
Directors of the Board. All votes taken pursuant to this Section 4.11.1
shall be referred to as an “Equal Vote.” The consequence of a tie vote
shall generally be “no action” taken. Notwithstanding the foregoing, an
“Equal Vote” may be subject to a “Voting Shares Vote” as provided in
Section 4.11.2, below.
4.11.2Voting Shares Vote. At the same meeting at which an Equal Vote
action was taken, three or more Directors shall have the right to
request and have conducted a “Voting Shares Vote” to reconsider that
action. Approval of a proposed actionby a Voting SharesVote to
reconsider an Equal Vote action shall require the affirmative vote of
Directors representing a two-thirds supermajority (66.7%) of the
“Voting Shares” cast. The formula and process for allocating Voting
Shares is set forth in Section 4.11.3, below. If a Voting Shares Vote
for reconsideration fails, the legal effect is to affirm the Equal Vote
with respect to which the Voting Shares Vote was taken. If the
Voting Shares Vote succeeds, the legal effect is to nullify the Equal
Vote with respect to which the Voting Shares Vote was taken. If the
underlying Equal Vote was a tie, the Voting Shares Vote replaces that
tie vote. No action may be taken solely by a Voting Shares Vote
without first having taken an Equal Vote.
4.11.3VotingShares Vote Formula and Process. For the process of a Voting
Shares Vote, each Director shall have a Voting Share as determined by the
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following formula: (Annual Energy Use/Total Annual Energy) multiplied
by 100, where:
(a)“Annual Energy Use” means, (i) with respect to the first year
following the Effective Date, the annual electricity usage,
expressed in kilowatt hours (“kWh”), within the Party’s respective
jurisdiction and (ii) with respect to the period after the first
anniversary of the Effective Date, the annual electricity usage,
expressed in kWh, of accounts within a Party’s respective
jurisdiction that are served by the Authority; and
(b)“Total Annual Energy” means the sum of all Parties’ Annual
Energy Use. The initial values for Annual Energy Use will be
designated in Exhibit Cand shall be adjusted annually as soon as
reasonably practicable after January 1, but no later than March 1 of
each year. These adjustments shall be approved by the Board.
The combined voting share of all Directors representing a Party
shall be based upon the annual electricity usage within the Party’s
jurisdiction. If a Party has two Directors, then the voting shares
allocated tothatParty shall be equally divided between its two
Directors.
The initial voting shares will be set forth in Exhibit D. Exhibit D
shall be revised no less than annually as necessary to account for
changes in the number of Parties and changes in the Parties’
Annual Energy Use. Exhibit D and adjustments shall be approved
by the Board.
Notwithstanding the formula for Voting Shares set forth above, for
the purposes of the Voting Shares Vote, no one Party to this
Agreement shall have a Director (or Directors, as the case may be)
with a Voting Share that exceeds 49%, regardless of the Party’s
actual annual electric usage. If a Party would have a voting share
that exceeds 49%, the excess above 49% shall be distributed
among the other Parties in accordance with their relative annual
electricity usage, as shown in Exhibit D.
4.12Special Voting.
4.12.1Except as provided below, matters that require Special Voting as
described in this section shall require 72 hours prior notice to any Brown
Act meeting or special meeting.
4.12.2Two-thirds vote (or such greater vote as required by state law)of the
appointed Directors shall be required to take any action on the following:
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(a)Issue bonds or other forms of debt;
(b)Adding or removing Parties;
(c)Amend or terminate this Agreement or adopt or amend the bylaws
of the Authority. At least 30 days advance notice shall be provided
for such actions. The Authority shall also provide prompt written
notice to all Parties of the action taken and enclose the adopted or
modified documents; and
4.12.3Three-Fourths Vote shall be required to initiate any action for Eminent
Domain
4.12.4Matters requiring Special Voting under the terms of this Section shall not
be subject to Voting Shares Voting pursuant to Section 4.11.2, above.
5.INTERNALORGANIZATION
5.1Elected and Appointed Officers.For each fiscal year,the Board shall elect a
Chair and Vice Chair from among the Directors and shall appoint a Secretary and
a Treasurer as provided in Government Code section 6505.5. No Director may
hold more than one such office at any time and elected officers shall represent
different Parties of the Authority. Appointed officers shall not be elected officers
of the Board.
5.2Chair and Vice Chair. For each fiscal year, the Board shall elect a Chair and
Vice Chair from among the Directors. The term of office of the Chair andVice
Chair shall continue for one year, but there shall be no limit on the number of
terms held by either the Chair or Vice Chair. The Chair shall be the presiding
officer of all Board meetings, and the Vice Chair shall serve in the absence of the
Chair. The Chair shall perform duties as may be imposed by the Board. In the
absence of the Chair, the Vice-Chair shall perform all of the Chair’s duties. The
office of the Chair or Vice Chair shall be declared vacant and a new selection
shall be made if: (a)the person serving dies, resigns, or the Party that the person
represents removes the person as its representative on the Board, or (b) the Party
that he or she represents withdraws from the Authority pursuant to the provisions
of this Agreement. Upon avacancy, the position shall be filled at the next
regular meeting of the Board held after such vacancy occurs or as soon as
practicable thereafter. Succeeding officers shall perform the duties normal to said
offices.
5.3Secretary. The Board shall appoint aqualified person who is not on the Board to
serve as Secretary. The Secretary shall be responsible for keeping the minutes of
all meetings of the Board and all other office records of the Authority. If the
appointed Secretary is an employee of any Party, such Party shall be entitled to
reimbursement for any documented out of pocket costs it incurs in connection
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with such employee’s service as Secretary of the Authority, and full cost recovery
for any documented hours of service provided by such employee during such
Party’s normal working hours.
5.4Treasurer/Chief Financial Officerand Auditor. The Board of Directors shall
appoint a Treasurer who shall function as the combined offices of Treasurer and
Auditor and shall strictly comply with the statutes related to the duties and
responsibilities specified in Section6505.5 of the Act. The Treasurer for the
Authority shall be the depository and have custody of all money of the Authority
from whatever source and shall draw all warrants and pay demands against the
Authority as approved by the Board. The Treasurer shall cause an independent
audit(s) of the finances of the Authority to be made by a certified public
accountant, or public accountant, in compliance with Section6505 of the Act.
The Treasurer shall report directly to the Board and shall comply with the
requirements of treasurers of incorporated municipalities. The Board may
transfer the responsibilities of Treasurer to any qualified person or entity as the
law allows at the time. The duties and obligations of the Treasurer are further
specified in Section 7. The Treasurer shall serve at the pleasure of the Board. If
the appointed Treasurer is an employee of any Party, such Party shall be entitled
to reimbursement for any documented out of pocket costs it incurs in connection
with such employee’s service as Treasurer of the Authority, and full cost recovery
for any documented hours of service provided by such employee during such
Party’s normal working hours.
5.5Chief Executive Officer. The Board shall appoint a Chief Executive Officer for
the Authority, who shall be responsible for the day-to-day operation and
management of the Authority and the CCA Program. The Board shall appoint a
qualified person, hired through a transparent, competitive process, to act as the
Chief Executive Officer; he or she may not be an elected member of the Board or
otherwise representing any Party to the Authority. The Chief Executive Officer
may exercise all powers of the Authority, except those powers specifically
reserved to the Board including but not limited to those set forth in Section 4.6
(Specific Responsibilities of the Board) of this Agreement or the Authority’s
bylaws, or those powers which by law must be exercised by the Board. The Chief
Executive Officer may enter into and execute power purchase agreements and
other contracts, in accordance with criteria and policies established by the Board.
5.6General Counsel.The Board shall appoint a qualified person to act as the
Authority’s General Counsel, who shall not be a member of the Board, or an
elected official or employee of a Party.
5.7Bonding of Persons Having Access to Property. Pursuant to the Act, the Board
shall designate the public officer or officers or person or persons who have charge
of, handle, or have access to any property of the Authority exceeding a value as
established by the Board, and shall require such public officer or officers or
person or persons to file an official bond in an amount to be fixed by the Board.
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5.8Other Employees/Agents. The Board shall have the power by resolution to hire
employees or appoint or retain such other agents, including officers, loan-out
employees, or independent contractors, as may be necessary or desirable to carry-
out the purpose of this Agreement, pursuant to terms and conditions adopted by
the Board.
5.9Privileges and Immunities from Liability.All of the privileges and immunities
from liability, exemption from laws, ordinances and rules, all pension, relief,
disability, workers’ compensation and otherbenefits which apply to the activities
of officers, agents or employees of a public agency when performing their
respective functions shall apply to the officers, agents or employees of the
Authority to the same degree and extent while engaged in the performance of any
of the functions and other duties of such officers, agents or employees under this
Agreement. None of the officers, agents or employees directly employed by the
Board shall be deemed, by reason of their employment by the Authority to be
employed by the Parties or by reason of their employment by the Authority, to be
subject to any of the requirements of the Parties.
5.10Commissions, Boards and Committees. The Board may establish any advisory
commissions, boards, and committees as the Board deems appropriate to assist the
Board in carrying out its functions and implementing the CCA Program, related
energy programs, and the provisions of this Agreement. To the extent possible,
the commissions, boards, and committees should have equal representation from
each Party. The Board may establish criteria to qualify for appointment on said
commissions, boards, and committees. The Board may establish rules,
regulations, policies, or procedures to govern any such commissions, boards, or
committees and shall determine whether members shall be compensated or
entitled to reimbursement for expenses.
5.10.1Executive Committee. The Board may establish an executive committee
consisting of a subset of its Directors. The Board may delegate to the
Executive Committee suchauthority as the Board might determine
appropriate to serve as a liaison between the Board and the Chief
Executive Officer and to make recommendations to the Board regarding
the operations of the Authority. Notwithstanding the foregoing, the Board
may not delegate authority regarding essential Board functions, including
but not limited to, approving the fiscal year budget or hiring or firing the
Chief Executive Officer, and other functions as provided in the Authority
bylaws or policies. Further, the Board may not delegate to the Executive
Committee, or any other committee, the Board’s authority under Section
3.2.12 to adopt and amend Authority policies and procedures.
5.10.2Finance and Risk Management Committee.The Board shall establish a
finance and risk management committee consisting of a subset of its
Directors. The primary purpose of the Finance and Risk Management
Committee is to review and recommend to the Board:
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(a)A funding plan;
(b)A fiscal year budget; and
(c)Financial policies and procedures to ensure equitable contributions
by Parties; and
The Finance and Risk Management Committee may have such
other responsibilities as may be approved by the Board, including
but not limited to advising the Chief Executive Officer on fiscal
and risk management policiesand procedures, rules and
regulations governing investment of surplus funds, audits to
achieve best practices in corporate governanceand selection and
designation of financial institutions for deposit of Authority funds,
and credit/depository matters.
5.10.3Community Advisory Committee. The Board shall establish a Community
Advisory Committee comprised of non-Board members. The primary
purpose of the Community Advisory Committee shall be to advise the
Board of Directors and providefora venue for ongoing citizen support
and engagement in the strategic direction, goals, and programs of the
Authority. The Community Advisory Committee is advisory only, and
shall not have decision-making authority, nor receive any delegation of
authority from the Board of Directors. Each Party may nominate a
committee member(s) and the Board shall determine the final selection of
committee members, who should represent a diverse cross-section of
interests, skills sets and geographic regions.
5.10.4Technical Advisory Committee. The Board may establish a Technical
Advisory Committee comprised of non-Board members. The primary
purpose of the Technical Advisory Committee shall be to advise the Board
of Directors andprovide the Authority with technical support and
engagement in the energy-related operations of the Authority,
supplementing the expertise of the Authority staff, independent
contractors, and consultants. Each Party may nominate a committee
member(s) and the Board shall determine the final selection of committee
members, who should have significant expertise in electric markets,
programs, procurement, regulatory and legislative engagement, and/or
energy law.
5.10.5Meetings of the Advisory Committees. All meetings of the committees
shall be held in accordance with the Brown Act. For the purposes of
convening meetings and conducting business, unless otherwise provided
in the bylaws, a majority of the members of the committee shall constitute
a quorum for the transaction of business, except that less than a quorum or
the secretary of each committee may adjourn meetings from time-to-time.
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As soon as practicable, but no later than the time of posting, the Secretary
of the committee shall provide notice and the agenda to each Party,
Director(s), and Alternate Director(s).
5.10.6Officers of Advisory Committees. Unless otherwise determined by the
Board, each Committee shall choose its officers, comprised of a Chair, a
Vice Chair, and a Secretary.
6.IMPLEMENTATION ACTION AND AUTHORITY DOCUMENTS
6.1Preliminary Implementation of the CCA Program.
6.1.1Enabling Ordinance. In addition to the execution of this Agreement, each
Party shall adopt an ordinance in accordance with Public Utilities Code
Section 366.2(c)(12) for the purpose of specifying that the Party intends to
implement a CCA Program by and through its participation in the
Authority.
6.1.2Implementation Plan. The Authority shall cause to be prepared and secure
Board approval of an Implementation Plan meeting the requirements of
Public Utilities Code Section 366.2 and any applicable Public Utilities
Commission regulations, and consistent with the terms of this Agreement,
as soon after the Effective Date as reasonably practicable.
6.2Authority Documents.The Parties acknowledge and agree that the affairs of the
Authority will be implemented through various documents duly adopted by the
Board through Board resolution or minute action, including but not necessarily
limited to operational procedures and policies, the annual budget, and specific
plans such as a local renewable energy development and integration plan and
other policies defined as the Authority Documents by this Agreement. All such
Authority Documents shall be consistent with and designed to advance the goals
and objectives of the Authority as expressed in this Agreement. The Parties agree
toabide by and comply with the terms and conditions of all such Authority
Documents that may be adopted by the Board, subject to the Parties' right to
withdraw from the Authority as described in Section 8 (Withdrawal and
Termination) of this Agreement.
6.3Integrated Resource Plan and Regulatory Compliance.The Authority shall
cause to be prepared an Integrated Resource Plan in accordance with California
Public Utilities Commission regulations, and consistent with the terms of this
Agreement, that will ensure the long-term development and administration of a
variety of energy programs that promote local renewable resources, conservation,
demand response, and energy efficiency, while maintaining compliance with
other regulatory requirements including the State Renewable Portfolio Standard
(RPS) and customer rate competitiveness. The Authority shall prioritize the
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development of cost competitive clean energy projects in San Diego and adjacent
counties.
6.4Renewable Portfolio Standards.The Authority shall provide its customers
energy primarily from Category 1 eligible renewable resources, as defined under
the California RPS and consistent with the goals of the CCA Program. The
Authority shall avoid the procurement of energy from Category 2 or 3 eligible
renewable resources (unbundled Renewable Energy Credits orRECs)to the
extent feasible. The Authority’s ultimate objective shall be to achieve—and
sustain—a renewable energy portfolio with 100 percent renewable energy
availability and usage, at competitive rates, within the Authority service territory
by no later than 2035, and then beyond.
7.F INANCIAL PROVISIONS
7.1Fiscal Year.The Authority's fiscal year shall be 12 months commencing July 1
and ending June 30. The fiscal year may be changed by Board resolution.
7.2Depository.
7.2.1All funds of the Authority shall be held in separate accounts in the name
of the Authority and not commingled with funds of any Party or any other
person or entity.
7.2.2All funds of the Authority shall be strictly and separately accounted for,
and regular reports shall be rendered of all receipts and disbursements, at
least quarterly during the fiscal year. The books and records of the
Authority shall be open to inspection and duplication by the Parties at all
reasonable times. Annual financial statements shall be prepared in
accordance with Generally Accepted Accounting Principles of the United
States of America within 6 months of the close of the fiscal year. The
Board shall contract with a certified public accountant to make an annual
audit of the financialstatements of the Authority, which shall be
conducted in accordance with the requirements of Section 6505 of the Act.
7.2.3All expenditures shall be made in accordance with the approved budget
and upon the approval of any officer so authorized by the Board in
accordance with its policies and procedures.
7.3Budget and Recovery Costs.
7.3.1Budget. The initial budget shall be approved by the Board. The Board
may revise the budget from time to time as may be reasonably necessary
to address contingencies and unexpectedexpenses. All subsequent
budgets of the Authority shall be prepared and approved by the Board in
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accordance with its fiscal management policiesthat should include a
deadline for approval.
7.3.2Funding of Initial Costs.
(a)The City of San Diego shall fund theInitial Costs of establishing
the Authority and implementing its CCA Program. In the event
that the CCA Program becomes operational, the City of San Diego
will be reimbursed for its Initial Costs on the terms set forth in this
Section. The City shall first submit to the Founding Members a
description of the types of costs, cost estimates, and interest for
which it expects reimbursement. Reimbursable costs shall include,
but not limited to, repayment of hard costs associated with CCA
vendor contracts and Authority formation, reimbursement for the
portion of staff costs associated with managing Authority and
program formation and other out-of-pocket expenses directly
attributable to the implementation of CCA through the Authority.
The Citywill meet and confer with Founding Members in the
development of its proposal for reimbursement to the Authority.
The amount and the terms for City reimbursementshall be subject
to the approval ofthe AuthorityBoard. The Authority Board may
establish a reasonable time period over which such Initial Costs are
recovered once Authority revenues commence. In the event that
the CCA Program does not become operational, to the extent
Authority funds are available the City of San Diego may be
reimbursed in accordance with section 8.6 of this Agreement.
(b)The Authority shall also reimburse Founding Members for their
Initial Costs in supporting the implementation of the Authority
pursuant to the execution of an agreement specifying the services
provided and their related costs. The Authority may establish
reasonable costs and a reasonable time period over which such
costs are recovered once Authority revenues commence. The
Authority shall not provide for staff time costs or on-going cost
reimbursement to Parties once the Authority becomes fully
operational unless a specific Agreement between the Authority and
the Party for specified services not otherwise providedby
Authority staff has been approved by the Board.
7.3.3Program Costs. The Parties desire that, to the extent reasonably
practicable, all costs incurred by the Authority that are directly or
indirectly attributable to the provision of electric services under the CCA
Program, including the establishment and maintenance of various reserve
and performance funds, shall be recovered through appropriate charges to
CCA customers receiving such electric services.
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7.3.4No Requirement for Contributions or Payments.Parties are not required
under this Agreement to make any financial contributions or payments to
the Authority, and the Authority shall have no right to require such a
contribution or payment unless expressly set forth herein (for example, as
provided in Section 2.4.3, with respect to Additional Members and
provided in Section 8.1, with respect to Withdrawal), or except as
otherwise required by law.
Notwithstanding the foregoing, a Party may volunteer to provide, or
negotiate terms with the Authority to provide the following:
(a)contributions from its treasury for thepurposes set forth in this
Agreement;
(b)payments of public funds to defray the cost of the purposes of the
Agreement and Authority;
(c)advances of public funds for such purposes, such advances to be
repaid as provided by written agreement; or
(d)its personnel,equipment or property in lieu of other contributions
or advances.
Any agreement with the Authority to provide any of the above-referenced
contributions or payments shall require a Special Vote of the Board
pursuant to Section 4.12.2.
No Party shall be required, by or for the benefit of the Authority, to adopt
any local tax, assessment, fee or charge under any circumstances.
7.4Accounts and Reports.The Treasurer shall establish and maintain such funds
and accounts as may be required by good accounting practice or by any provision
of any trust agreement entered into with respect to the proceeds of any bonds
issued by the Authority. The books and records of the Authority in the hands of
the Treasurer shall be open to inspection and duplication at all reasonable times
by duly appointed representatives of the Parties. The Treasurer, within 180 days
after the close of each fiscal year, shall give a complete written report of all
financial activities for such fiscal year to the Parties. The Treasurer shall
cooperate with all regular audits required by Section 4.6.11 and 4.6.12.
7.5Funds.The Treasurer shall receive, have custody of and/or disburse Authority
funds in accordance with the laws applicable to public agencies and generally
accepted accounting practices,and shall make the disbursements required by this
Agreement in order to carry out any of the purposes of this Agreement.
8.WITHDRAWALANDTERMINATION
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8.1Withdrawal
8.1.1Withdrawal by Parties. Any Party may withdraw its membership in
the Authority, effective as of the beginning of the Authority's fiscal
year, by giving no less than 180 days advance written notice of its
election to do so, which notice shall be given to the Authority and
each Party. Withdrawal of a Party shall require an affirmative vote of
the Party's Governing Body.
8.1.2Amendment. Notwithstanding Section 8.1.1 (Withdrawal by Parties)
of this Agreement, a Party may withdraw its membership in the
Authority upon approval and execution of an amendment to this
Agreement provided that the requirements of this Section 8.1.2 are
strictly followed. A Party shall be deemed to have withdrawn its
membership in the Authority effective 180 days after the Board
approves an amendment to this Agreement if the Director
representing such Party has provided notice to the other Directors
immediately preceding the Board's vote of the Party's intention to
withdraw its membership in the Authority should the amendment be
approved by the Board.
8.1.3Continuing Liability; Further Assurances.A Party that withdraws its
membership inthe Authority may be subject to certain continuing
liabilities, as described in Section 8.5 (Continuing Liability; Refund)
of this Agreement, including, but not limited to, power purchase
agreements and other Authority contracts and operational obligations.
The withdrawing Party and the Authority shall execute and deliver all
further instruments and documents and take any further action that
may be reasonably necessary, as determined by the Board, to
effectuate the orderly withdrawal of such Party from membership in
the Authority. The Board shall also consider, pursuant to Section
3.2.12, adoption of a policy that allows a withdrawing Party to
negotiate assignment to the Party of costs of electric power or other
resources procured on behalf of its customers by the Authority upon
its withdrawal. The Authority’s policies shall prescribe the rights if
any of a withdrawn Party to continue to participate in those Board
discussions and decisions affecting customers of the CCA Program
that reside or do business within the jurisdiction of the Party. In the
implementation of this Section 8.1.3, the Parties intend, to the
maximum extent possible, without compromising the viability of
ongoing Authority operations, that any claims, demands, damages, or
liabilities covered hereunder, be funded from the rates paid by CCA
Program customers located within the service territory of the
withdrawing Party, and not from the general fund of the withdrawing
Party itself.
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8.2Termination of CCA Program.Nothing contained in Section 6 or elsewhere in
this Agreement shall be construed to limit the discretion of the Authority to
terminate the implementation or operation of the CCA Program at any time in
accordance with any applicable requirements of state law.
8.3Involuntary Termination. This Agreement may be terminated with respect to a
Party for material non-compliance with provisions of this Agreement or Authority
documents upon a two-thirds vote of the Board in which the minimum Equal Vote
or Voting Shares Vote, as applicable in Section
4.11 (Board Voting) of this
Agreement, shall be no less than two-thirds vote excluding the vote and voting
shares of the Party subject to possible termination. Prior to any vote to terminate
this Agreement with respect to a Party, written notice of the proposed termination
and the reason(s) for such termination shall be delivered to the Party whose
termination is proposed at least 30 days prior to the regular Board meeting at
which such matter shall first be discussed as an agenda item. The written notice
of proposed termination shall specify the particular provisions of this Agreement
or the Authority Documents that the Party has allegedly violated. The Party
subject to possible termination shall have the opportunity at the next regular
Board meeting to respond to any reasons and allegations that may be cited as a
basis for termination prior to a vote regarding termination. A Party that has had
its membership in the Authority terminated may be subject to certain continuing
liabilities, as described in Section 8.5 (Continuing Liability; Refund) of this
Agreement.
8.4Mutual Termination.This Agreement may be terminated by mutual agreement
of all the Parties; provided, however, the foregoing shall not be construed as
limiting the rights of a Party to withdraw its membership in the Authority, and
thus terminate this Agreement with respect to such withdrawing Party, as
described in Section 8.1 (Withdrawal) of this Agreement.
8.5Continuing Liability; Refund.Upon a withdrawal or involuntary termination of
a Party, the Party shall remain responsible for any claims, demands, damages, or
liabilities arising from the Party’s membership in the Authority through the
effective date of its withdrawal or involuntary termination, it being agreed that the
Party shall not be responsible for any claims, demands, damages, or liabilities
commencing or arising after the date of the Party’s withdrawal or involuntary
termination. In addition, such Party also shall be responsible for (a) any damages,
losses, or costs incurred by the Authority which result directly from the Party’s
withdrawalor termination, including but not limited to costs arising from the
resale of capacity, electricity, or any attribute thereofno longerneeded to serve
such Party’s load; and (b) any costs or obligations associated with the Party’s
customer participation in any program in accordance with the program’s terms,
provided such costs or obligations were incurred prior to the withdrawal of the
Party. The withdrawing Party agrees to pay any such deposit determined by the
Authority to cover the Party’s liability for the operational and contract costs
described above. Any amount of the Party’s funds held on deposit with the
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Authority above that which is required to pay any liabilities or obligations shall be
returned to the Party. In the implementation of this Section 8.5, the Parties intend,
to the maximum extent possible, without compromising the viability of ongoing
Authority operations, that any claims, demands, damages, or liabilities covered
hereunder, be funded from the rates paid by CCA Program customers located
within the service territory of the withdrawing Party, and not from the general
fund of the withdrawing Party itself.
8.6Disposition of Authority Assets. Upon termination of this Agreementand
dissolution of the Authority by all Parties, and after payment of all obligations of
the Authority, the Board
8.6.1May sell or liquidate Authority property; and
8.6.2Shall distribute assets to Parties in proportion to the contributions made by
the existing Parties.
Any assets provided by a Party to the Authority shall remain the asset of that
Party and shall not be subject to distribution under this section.
9.MISCELLANEOUSPROVISIONS
9.1Dispute Resolution.The Parties and the Authority shall make reasonable efforts
to settle all disputes arising out of or in connection with this Agreement. Before
exercising any remedy provided by law, a Party or the Parties and the Authority
shall engage in nonbinding mediation in the manner agreed upon by the Party or
Parties and the Authority. The Parties agree that each Party may specifically
enforce this section. In the event that nonbinding mediation is not initiated or does
not result in the settlement of a dispute within 60 days after the demand for
mediation is made, any Party and the Authority may pursue any remedies
provided by law.
9.2Liability of Directors, Officers, and Employees.The Directors, officers, and
employees of the Authority shall use ordinary care andreasonable diligence in the
exercise of their powers and in the performance of their duties pursuant to this
Agreement. No current or former Director, officer, or employee will be
responsible for any act or omission by another Director, officer, or employee.
The Authority shall defend, indemnify and hold harmless the individual current
and former Directors, officers, and employees for any acts or omissions in the
scope of their employment or duties in the manner provided by Government Code
Section995 etseq. Nothing in this section shall be construed to limit the defenses
available under the law, to the Parties, the Authority, or its Directors, officers, or
employees.
9.3Indemnification of Parties.The Authority shall acquire such insurance coverage
as is necessary to protect the interests of the Authority, the Parties and the public.
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The Authority shall defend, indemnify and hold harmless the Parties and each of
their respective governing board members, officers, agents and employees, from
any and all claims, losses, damages, costs, injuries and liabilities of every kind
arising directly or indirectly from the conduct, activities, operations, acts and
omissions of the Authority.
9.4Notices. Any notice required or permitted to be made hereunder shall be in
writing and shall be delivered in the manner prescribed herein at the principal
place of business of each Party. The Parties may give notice by (1) personal
delivery; (2) e-mail; (3) U.S. Mail, first class postage prepaid, or a faster delivery
method; or (3) by any other method deemed appropriate by the Board.
Upon providing written notice to all Parties, any Party may change the designated
address or e-mail for receiving notice.
All written notices or correspondence sent in the described manner will be
deemed given to a party on whichever date occurs earliest: (1) the date of personal
delivery; (2) the third business day following deposit in the U.S. mail, when sent
by “first class” mail; or (3) the date of transmission, when sent by e-mail or
facsimile.
9.5Successors.This Agreement shall be binding upon and shall inure to the benefit
of the successors of each Party.
9.6Assignment.Except as otherwise expressly provided in this Agreement, the
rights and duties of the Parties may not be assigned or delegated without the
advance written consent of all of the other Parties, and any attempt to assign or
delegate such rights or duties in contravention of this section shall be null and
void. This Agreement shall inure to the benefit of, and be binding upon, the
successors and assigns of the Parties. This section does not prohibit a Party from
entering into an independent agreement with another agency, person, or entity
regarding the financing of that Party's contributions to the Authority, or the
disposition of the proceeds which that Party receives under this Agreement, so
long as such independent agreement does not affect, or purport to affect, the rights
and duties of the Authority or the Parties under this Agreement.
9.7Severability.If any one or more of the terms, provisions, promises, covenants, or
conditions of this Agreement were adjudged invalid or void by a court of
competent jurisdiction, each and all of the remaining terms, provisions, promises,
covenants, and conditions of this Agreement shall not be affected thereby and
shall remain in full force and effect to the maximum extent permitted by law.
9.8Governing Law.This Agreement is made and to be performed in the State of
California, and as such California substantive and procedural law shall apply.
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9.9Headings. The section headings herein are for convenience only and are not to
be construed as modifying or governing the language ofthis Agreement.
9.10Counterparts.This Agreement may be executed in any number of counterparts,
and upon execution by all Parties, each executed counterpart shall have the same
force and effect as an original instrument and as if all Parties had signed the same
instrument. Any signature page of this Agreement may be detached from any
counterpart of this Agreement without impairing the legal effect of any signatures
thereon and may be attached to another counterpart of this Agreement identical in
form hereto but having attached to it one or more signature pages.
CITY OF ___Chula Vista_______________
By: ________________________________
Mary Casillas Salas, Mayor
ATTEST:
By: __________________________________
Kerry K. Bigelow, City Clerk
APPROVED AS TO FORM:
By: __________________________________
Glen R. Googins, City Attorney
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ExhibitA: Definitions
"AB 117" means Assembly Bill 117 (Stat. 2002, Ch. 838, codified at Public Utilities Code
Section 366.2), which created Community Choice Aggregation.
"Act" means the Joint Exercise of Powers Act of the State of California (Chapter5, Division 7,
Title 1 ofthe Government Code commencing with Section6500).
"Agreement" means this Joint Powers Agreement.
"Authority" means San Diego Regional Community Choice Energy Authority.
"Authority Document(s)" means document(s) duly adopted by the Board by resolution or motion
implementing the powers, functions and activities of the Authority, including but not
limited to the Operating Policies and Procedures, the annual budget, and plans and
policies.
"Board" means the Board of Directors of the Authority.
"Community Choice Aggregation" or "CCA" means an electric service option available to cities,
counties, and other public agencies pursuant to Public Utilities Code Section 366.2.
"CCA Program" means the Authority's program relating to CCA that is principally described in
Section 2.3 (Purpose) of this Agreement.
"Days" shall mean calendar days unless otherwise specified by this Agreement.
"Director" means a member of the Board representing a Party, including up to two alternate
Directors appointed in accordance with Sections 4.1 (Board of Directors) and 4.2
(Appointment and Removal of Directors) of this Agreement.
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"Effective Date" means the date on which the Agreement shall become effective and the
Authority shall exist as a separate public agency, as further described in Section 2.1
(Effective Date and Term) of this Agreement.
“Founding Member” means any jurisdiction that joins with the City of San Diego to form the
San Diego Regional CCE Authority in 2019, as identified in Exhibit B. Founding
members shall not incur any expenses related to their membership in the Authority or its
operational implementation.
“Governing Body” means:for the County of San Diego, its Board of Supervisors;for any city
other than San Diego, its City Council; for San Diego, theMayor and theCity Council;
and, for any other public agency, the equivalentpolicy making bodythat exercises
ultimate decision-makingauthority over such agency.
"Initial Costs" means implementation costs advanced by the City of San Diego and other
Founding Members in support of the formation of the Authority, which are (a) directly
related to the establishment of the Authority and its CCA program, and (b) incurredby
the Authority or its Members relating to the initial operation of the Authority, such as the
hiring of the executive and operations staff, any required accounting, administrative,
technical and legal services in support of the Authority's initial formation activities or in
support of the negotiation, preparation and approval of power purchase agreements.
Initial Costs do not include costs associated with the investigation of the CCA model,
attendance at routine planning meetings, or a Party’s pre-formation reports related to their
decision to pursue CCA or join the Authority. The Authority Board shall determine the
repayment timing and termination date for the Initial Costs.
“Investor Owned Utilities” means a privately-owned electric utility whose stock is publicly
traded. It is rate regulated and authorized to achieve an allowed rate of return.
"Parties" means, collectively, the signatories to this Agreement that have satisfied the conditions
as defined above in “Founding Members” or in Section 2.4 (Addition of Parties) of this
Agreement, such that they are considered members of the Authority.
"Party" means, singularly, a signatory to this Agreement that has satisfied the conditions as
defined above in “Founding Members” or in Section 2.4 (Addition of Parties) of this
Agreement, such that it is considered a member of the Authority.
"Public Agency" as defined in the Act includes, but is not limited to, the federal government or
any federal department or agency, this state, another state or any state department or
agency, a county, a county board of education, county superintendent of schools, city,
public corporation, public district, regional transportation commission of this state or
another state, a federally recognized Indian tribe, or any joint powersauthority formed
pursuant to the Act.
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ExhibitB: List of Founding Members
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ExhibitC: Annual Energy Use by Jurisdiction
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ExhibitD: Voting Shares of Founding Members
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ExhibitE: Signatures
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