HomeMy WebLinkAboutAgenda Packet 1998/06/02
"\ declare tinder penalty 0; perjury that i ai'll
employed by the City of Chula Vista In the
Office of the City Clerk and that I pOSIed
this Agenda/Notice on the Bulletin Board at
Tuesday, June 2, 1998 the Public ~rv}1;8 Building and at City Hell on Council Chambers
4:00 p.m. DATED.S;~¡/.¡ &-'SIGNED S~.. Public Services Building
/ /
Rf\!ular Meetine of the City of Chula Vista City Council
CALL TO ORDER
I. ROLL CALL: Councilmembers Moot_, Padilla_, Rindone_, Salas_, and Mayor Horton_.
2. PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE
3. APPROVAL OF MINUTES: None submitted.
4. SPECIAL ORDERS OF THE DAY:
A. Proclaiming the week of June 1 through June 6, 1998 as "Management Week." Mayor
Horton will present the proclamation to Karin August, Executive Vice-President of the Chapter
of National Management Association.
B. Proclaiming June 6 through June 13, 1998 as "National Home Ownership Week." Mayor
Horton will present the proclamation to Frank Riley, Community Builder of the United States
Department of Housing and Urban Development.
C. ~ J-.u:t&vd ~
D. CONSENT CALENDAR
~ Cì.u:tt.. (I:em,. 5 through 12)
The staff recommendations regarding the following items listed under the Consent Calendar will be enacted by
the Council by one motion without discussion unless a Councilmember, a member of the public, or City staff
requests that the item be pulled for discussion. If you wish to speak on one of these items, please fill out a
"Request to Speak Forni" available in the lobby and submit it to the City Clerk prior to the meeting. Items pulled
from the Consent Calendar will be discussed after Board and Commission Recommendations and Action Items.
Items pulled by the public will be the first ifems of business.
5. WRITTEN COMMUNICATIONS:
A. Letter from the City Attorney stating that to the best of his knowledge from observance of
actions taken in Closed Session on 5/26/98, that there were no reportahle actions under the
Brown Act to be reported. It is recommended that the letter be received and filed.
6. ORDINANCE 2733 AMENDING THE RANCHO DEL REY SECTIONAL PLANNING AREA III
PLAN BY CHANGING THE LAND USE DESIGNATION FROM CPF (COMMUNITY PURPOSE
FACILITY) TO OS-3 (OPEN SPACE) ON A 1.8 ACRE PARCEL LOCATED AT THE
NORTHEAST CORNER OF PASEO LADERA AND PASEO ENTRADA (second readine and
adoption) - The proposal is to amend the Rancho del Rey SPA IiI Plan in order to change the designation
of the 1.8 acre project site from CPF to OS-3. The Project Site is located northeast of the intersection of
Paseo Ladera and Paseo Entrada, one block north of Telegraph Canyon Road. The current CPF Land Use
Designation allows the site to be used only for "non profit" Community Purpose Facilities which are
ancillary to another permitted use (i.e. church). Therefore, the applicant is now requesting an amendment
to the SPA III Plan in order to change the land use designation from CPF to OS-3. At the present time,
the applicant wishes to market the site for a "for profit" day care facility as the primary use on the site.
Staff recommends Council place the ordinance on second reading and adoption. (Director of Planning)
Agenda -2- June 2, 1998
7. RESOLUTION 19021 APPROVING THE ENVIRONMENT AI. INDEMNITY AGREEMENT WITH
THE SAN DIEGO UNIFIED PORT DISTRICT PURSUANT TO THE PURCHASE AND SALE
AGREEMENT FOR MARINA VIEW PARK DATED JUNE 6,1997, AND AUTHORIZING THE
MAYOR TO EXECUTE SAME - Certain conditions of the Purchase and Sale Agreement for the
conveyance of the City's portion of Marina View Park to the Port require that environmental investigation
be conducted. Staff arranged for a consultant to perform the required work, which included a Phase 1 and
limited Phase 2 investigation. City and Port staff agreed, pursuant to the Purchase and Sale Agreement,
that in lieu of more exhaustive soil and groundwater sampling, the City would provide additional
indemnification to ensure that any presently unknown liability of the City did not pass to the Port as a result
of the property sale. The proposed Environmental Indemnity Agreement provides such assurances. Staff
recommends approval of the resolution. (Director of Community Development)
8. RESOLUTION 19022 APPROVING THE AGREEMENT WITH ESGIL CORPORATION TO
PROVIDE PLAN CHECK ENGINEERING SERVICES - On December 19, 1995, Council approved
the agreement with Esgil Corporation to provide plan check engineering services for the Department of
Building and Housing on an as-needed basis. The contractual agreement expires on June 30, 1998. Due
to the need for technical engineering support services on projects of unique structural complexities and to
offset peak demands, staff prepared a Request for Proposal (RFP) to solicit vendors to perform such
services. The RFP was distributed to ten vendors. Six responded, with the top four interviewed by the
Selection Committee. After thorough evaluation the Committee determined Esgil Corporation be
recommended to continue services. Staff recommends approval of the resolution. (Director of Building
and Housing)
9. RESOLUTION 19023 WAIVING THE BIDDING PROCESS AS IMPRACTICAL AND
AWARDING PURCHASING AGREEMENT FOR THE PURCHASE OF THREE PICKUP TRUCKS
On March 3, 1998, Council accepted bids and awarded Purchasing Agreements for the purchase of fourteen
pickup trucks to three vendors. Staff has found that it is necessary to purchas" three additional pickup
trucks. Staff wishes to use the bid pmviously awarded on March 3, 1998. Section 2.56.070 of the
Municipal Code requires that formal bids be obtained for purchases in excess of $25,000 unless Council
finds that obtaining the bids is impractical. Staff recommends Council approve the resolution finding that
bidding is impractical and award the Purchasing Agreement to People's Chevrolet of Chula Vista for
$48,605.55 for the purchase of three pickup trucks. (Director of Public Works)
10. RESOLUTION 19024 APPROVING A REIMBURSEMENT AGREEMENT WITH MCMILLIN -
D.A. AMERICA OTAY RANCH LLC FOR ALL INITIAL CONSULTING AND
ADMINISTRATIVE COST AND EXPENSES ASSOCIATED WITH FORMING A COMMUNITY
FACILITIES DISTRICT FOR FINANCING THE CONSTRUCTION OR ACQUISITION OF
CERTAIN IMPROVEMENTS SERVING THE MCMILLIN OTA Y RANCH PROJECT, WAIVING
CONSULT ANT SELECTION PROCESS AND GUIDELINES FOR THE SELECTION OF BROWN,
DIVEN, HESSLE & BREWER AS BOND COUNSEL, AND APPROVING AGREEMENTS WITH
FIELDMAN, ROLAPP & ASSOCIATES, DAVID TAUSSIG & ASSOCIATES, AND BROWN,
DIVEN, HESSLE & BREWER FOR SERVICES ASSOCIATED WITH SAID DISTRICT AND
AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS - McMillin - D.A. America
Otay Ranch LLC has requested the City initiate proceedings to form a Community Facilities District for
the acquisition or construction of public facilities associated with th" McMillin Otay Ranch project. The
first action is selecting a consultant team which will provide assistance to the City during the proceedings.
Th" Financial Advisor and Special Tax Consultant were selected through a Request for Proposals process.
Staff recommends to retain Fieldman, Rolapp & Associates as Financial Advisor and David Taussig &
Associates as Special Tax Consultant. Staff also recomm"nds waiving the cunsultant selection process and
guidelines for the selection of Brown, Diven, Hessle & Brewer as Bond Counsel. Staff recommends
approval of the resolution. (Director uf Public Works)
Agenda -3- June 2, 1998
11. RESOLUTION 19025 GRANTING AN EASEMENT FOR DRAINAGE PURPOSES ACROSS
CITY-OWNED PROPERTY AT ADA STREET AND INDUSTRIAL BOULEVARD TO TROLLEY
TERRACE TOWNHOMES PARTNERSHIP - South Bay Community Services is developing a parcel
of land at 750 Ada Street. It proposes to build several multi-residential units. The City owns the adjoining
property to the east. In order to adequately drain the lot, permission has been requested from the City to
place a pipe across the north property line and drain to Industrial Boulevard. To permanently allow this
to be done, an easement should be granted in perpetuity. Staff recommends approval of the resolution.
(Director of Public Works)
12. REPORT APPLICATION FOR THE FORMATION OF COMMUNITY FACILITIES DISTRICT
NUMBER 97-3 (OT A Y RANCH MCMILLIN SPA ONE) - Otay Ranch McMillin has formally petitioned
the City to form a Community Facilities District (CFD) pursuant to the Mello-Roos Act of 1982 for
financing the construction and/or acquisition of certain public improvements serving the Otay Ranch
McMillin SPA One prqject. In keeping with Council policy, the developer has submitted an application
containing information required for reviewing the feasibility of the proposed CFD. Staff has reviewed the
application and concluded that the tinancial information provided is preliminary and general in nature and
that a final analysis on the financial feasibility of the project can not be made at this time. Compliance
with Council policy can not be confirmed until various documents such as appraisal, market absorption
study, disclosure form, Special Tax Report, Preliminary Official Statement, etc. are complete. These
documents will be prepared during the district proceedings and brought to Council for consideration prior
to bond sale. Staff considers that this process will provide adequate information ensuring that the developer
has the financial ability to bring the project to completion. Staff recommends Council accept the report
and approve the resolution. (Director of Public Works)
RESOLUTION 19026 APPROVING THE INITIATION OF PROCEEDINGS TO CONSIDER THE
FORMATION OF A COMMUNITY FACILITIES DISTRICT FOR OTAY RANCH MCMILLIN
SPA ONE
. . . END OF CONSENT C,ILENliAR . . .
ADJOURNMENT TO REGULAR AND/OR IOINT MEETING OF THE REDEVELOPMENT AGENCY
ORAL COMMUNICATIONS
This is an opportunity for the general pllblic to address fhe City Council on any subject matter within the
Council's jurisdiction that is not an item on this agenda for public discussion. (State law, however, generally
prohibits the City Council from taking action on any issues not included on the posted agenda.) If you wish to
address the Council on such a subject, please complete the "Reqllesf to Speak Under Oral Communications
Forni" available in the lobby and submit it to the City Clerk prior to the meeting. Those who wish to speak,
please give your name and address for record purposes and follow up action.
PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES
The following items have been advertised and/or posted as public hearings as reqllired by law. If you wish to
speak to any item, please fill out the "Request fO Speak Form" available in the lobby and submit it to the City
Clerk prior to the meeting.
None submitted.
Agenda -4- June 2, 1998
BOARD AND COMMISSION RECOMMENDATIONS
This is the time the City Council will consider items which have been forwarded to them for consideration by one
of the City's Boards, Commissions, and/or Committees.
None submitted.
ACTION ITEMS
The items listed in this section of the agenda are expected to elicit subsfantial discussions and deliberations by
the Council, staff, or members of the general public. The items will be considered individually by the Council
and staff recommendations may in certain cases be presented in the alternative. Those who wish to speak, please
fill out a "Request to Speak" form available in the lobby and submit it to the City Clerk prior to the meeting.
None submitted.
ITEMS PULLED FROM THE CONSENT CALENDAR
This is the time the City Council will discuss items which have been removed from the Consenf Calendar.
Agenda items pulled at the request of fhe public will be considered prior fo those pulled by Councilmembers.
OTHER BUSINESS
13. CITY MANAGER'S REPORT(S)
A. Scheduling of meetings.
B. Briefing on the latest developments in the Governor's and State Legislature's efforts to
repeal/reduce the Vehicle License Fee.
14. MA YOR'S REPORTlS)
15. COUNCIL COMMENTS
ADJOURNMENT
The meeting will adjourn to (a closed session and thence to) the regular City Council meeting on June 9, 1998 at
6:00 p.m. in the City Council Chambers.
A meeting of the Redevelopment Agency will be held immediately following the City Council meeting.
"I declare tinder penalty of perjury thet I am
employed by the City of Chula Vista in the
Office of the City Clerk end that I posted
this Agenda/Notice on the Bulletin Board at .
Tuesday, June 2, 1998 the Public ice Bu' ding a"f:j.t City Hall CouncIl Chambers
4:00 p.m. DATED .:( IGNED :.ç~'?JiC Services Building
(immediately following the City Council Meetl
Citv of Chula Vista City Council
CLOSED SESSION AGENDA
Effective April I, 1994, there have been new amendments to the Brown Act. Unless the City Attorney, the City
Manager or the City Council sUltes otherwise at this time, the Council will discuss ond deliberate on thefollowing
items of business which are permitted by law to be the subject of a closed session discussion, and which the
Council is advised should be discussed in closed session to best protect the interests of the City. The Council is
required by law to return to open session, issue any reports of Ê!1!11 action taken in closed session, and the votes
taken. However, due to the typical length of time taken up by closed sessions, the videotaping will be terminated
at this point in order to save costs so that the Council's return from closed session, reports of Ê!1!11 action taken,
and adjournment will not be videotaped. Nevertheless, the report of final action faken will be recorded in the
minutes which will be available in the City Clerk's Office.
\. CONFERENCE WITH LEGAL COUNSEL REGARDING:
I. Existing litigation pursuant to Go\'ernment Code Section 54956.9
. Wolfe v. City of Chula Vista.
. Griffin v. City of Chula Vista.
. Chula Vista Police Officers Association v. City of Chula Vista.
. In the Matter of the Application of San Diego Gas & Electric Company (U 902-E) for
Authority to Sell Electrical Generation Facilities and Power Contracts.
2. Anticipated litigation pursuant to Government Code Section 54956.9
. Significant exposure to litigation pursuant to subdivision (h): Two cases.
CONFERENCE WITH LABOR NEGOTIATOR - Pursuant to Government Code Section 54957.6
. Agency negotiator: David Rowlands or designee for CVEA, WCE, POA, IAFF, Executive
Management. Mid-Management, and Unrepresented.
Employee organization: Chula Vista Employees Association (CVEA) and Western Council of
Engineers (WCE), Police Oftïcers Association (POA) and International Association of Fire
Fighters (IAFF).
Unrepresented employee: Executive Management, Mid-Management, and Unrepresented.
2. REPORT OF ACTIONS TAKEN IN CLOSED SESSION
SWEETWATER AUTHORITY #1
505 GARRETT AVENUE
POST OFFICE BOX 2328
CHULA VISTA, CALIFORNIA 91912-2328 GOVERNING BOARD
(619) 420-1413
FAX (619) 425-7469 J.S. SKI WOLNIEWICZ. CHAIRMAN
MARGARET COOK WELSH. VICE CHAIR
JAMES 'JIM" DOUO
June 1, 1998 SUE JARRETT
BUD POCKLINGTON
GEORGE H. WATERS
CARY F. WRIGHT
WANDA AVERV
TREASURER
DIAN J. REEVES
SECRETARV
I believe that this charge is inequitable to the City of Chura Vista, because residents of the
city have already paid for emergency storage at Sweetwater and Loveland Reservoirs when
they acquired the system in 1977. Moreover, as they payoff the bonded indebtedness to
purchase the system, they have insured that they will have storage in emergency situations.
We recognize that there are very remote possibilities that would place some dependence
upon the Emergency Storage Project; however, as long as Sweetwater Authority can place
water in Sweetwater Reservoir in the winter time, any drought condition can be easily
handled with existing storage.
I recommend that you comment to the San Diego County Water Authority that the
proposed Infrastructure Access Charge, as it is currently designed, is inequitable for
customers who have adequate emergency storage, such as customers of Sweetwater
Authority. The Sweetwater Authority staff and Board has pursued alternatives to reduce
the impact of this charge on its customers, but have received no consideration from the
County Water Authority at this time. Your help in making the implementation of this
charge more equitable would be greatly appreciated.
Very truly yours,
SWEETWATER AUTHORITY
Richard A. Reynolds
General Manager
RAR:rms 4,/)1
cc: Maureen Stapleton, General Manager, San Diego County Water Authority
A Public Water Agency,
Serving National City, Chula Vista and Surrounding Areas
- - ,,/
-.----
RESOLUTION NO. 98 - ~
RESOLUTION OF THE CITY COUNCIL OF TIlE
CITY OF NATIONAL CITY OPPOSING TIlE
INFRASTRUCTURE ACCESS CHARGE PROPOSED
BY THE SAN DIEGO COUNTY WATER AUTHORITY
WHEREAS, the San Diego County Water Authority is proposing to impose
an Infrastructure Access Charge on all customers of county water agencies, to be effective
January 1, 1999; and
WHEREAS, the purpose of the charge is to pay for a portion of the Water
Authority's Emergency Storage Project, and to collect revenues for- its Capital
Improvement Plan; and
WHEREAS, the proposed charge will have the effect of raising the
customer's water bill by $1.00 initially, and by $2.00 by the year 2003, representing four
percent and eight percent increases, respectively; and
WHEREAS, the proposed charge is inequitable to the citizens of National
City, because they already paid for adequate emergency storage at Sweetwater and
Loveland Reservoirs when the Sweetwater Authority acquired its water system in 1977;
and
WHEREAS, the Sweetwater Authority has pursued alternatives to reduce
the impact of the proposed charges on its customers, such as by establishing the charge in
proportion to the amount of import water that is used, but such alternatives have not
received due consideration from the San Diego County Water Authority.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City
of National City that the City Council strongly opposes the Infrastructure Access Charge
as currently pr~posed by the San Diego County Water Authority.
Signature Page to Follow
L/DJ.
~R<~"tiOnNO 98 - 55 r --
,..
May 26, 1998
Page Two
PASSED and ADOPTED tlùs 26'" day of May, 1998.
~.I j..J ¿, ~ ---
George. Waters, Mayor
ATfESI:
:Jddll ~k'k
APPROVED AS TO FORM:
n/JfL':c
George H. Eiser, ill
City Attorney
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Passed and adopted by the Council of the City of National City, California, on May 26,1998, by
the following vote, to-wit:
Ayes: Councilmembers Beauchamp, Inzunza, Morrison, Zarate, Waters.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: GEORGE H. WATERS
Mayor of the City of National City, California
MICHAEL R. DALLA
City Clerk of the City of National City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 98-55 of the City of National City, California, passed and adopted by the
Council of said City on May 26,1998.
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ow OF
CHUlA VISTA
OFFICE OF THE CITY ATTORNEY
Date: May 27, 1998
To: The Honorable Mayor and city council
. lV
From: John M. Kaheny, C1ty Attorney
Re: Report Regarding Actions Taken in Closed Session
for the Meeting of 5/26/98
The city council met in Closed Session on 5/26/98 to discuss Wolfe
v. City of Chula Vista, Griffin v. City of Chula Vista; Conference
with Legal Counsel - Anticipated Litgation - Significant exposure
to litigation pursuant to subdivision (b) of section 54956.9: One
case; and Conference with Real Property Negotiator: Otay Ranch Open
Space Preserve.
The city Attorney hereby reports to the best of his knowledge from
observance of actions taken in the Closed Session in which the City
Attorney participated, that there were no reportable actions which
are required under the Brown Act to be reported.
JMK:lgk
C:lltlclo......no
---
--!J/1- /
276 FOURTH AVENUE. CHULA VISTA. CALIFORNIA 91910 . (619) 691-5037 . FAX (619) 585-5612
@""""""'-"'"
--~--~-~~--- M -------------
May 28, 1998
TO: The Honorable Mayor and city counci~
FROM: David D. Rowlands, Jr., City Manage
SUBJECT: city council Meeting of June 2, 1998
This will transmit the agenda and related materials for the regular
City Council meeting of Tuesday, June 2, 1998. Comments regarding
the Written communications are as follows:
Sa. This is a letter from the city Attorney stating that to the
best of his knowledge from observance of actions taken in
Closed Session on 5/26/98, there were no actions taken which
are required under the Brown Act to be reported.
IT IS RECOMMENDED THAT THIS LETTER BE RECEIVED AND FILED.
DDR:mab
ORDINANCE NO. ;).7;33
-
~
AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING TIIE~
DEL REY SEcrIONAL PLANNING AREA m PLAN BY CHANGING AND
USE DESIGNATION FROM cpr (COMMUNITY PURPOSE FACILI~ TO OS-3
(OPEN SPACE) ON A 1.8 ACRE PARCEL LOCATED AT ~ ORTHEAST
CORNER OF PASEO LADERA AND PASEO ENTRADA ~~
~Q,
A, RECITALS ~
1. Project Site
WHEREAS, the property which are the subject matter of this Resolution are
diagrammatically represented in Exhibits A ("Project Site")
2. Project Applicant
WHEREAS, a duly verified application, PCM 98-10, for a Miscellaneous Amendment was
filed with the Planning Department on November 22, 1997 by Rancho del Rey Investors, PS
(Applicant); and
3. Project Description; Application for a Miscellaneous Amendment
WHEREAS, the proposed amendments to the SPA Plan, General Development Plan, Site
Utilization Plan and Land Use Map consist of changing Land Use Disttict designation from
CPF, Community Purpose Facility, to OS-3 (Open Space); and
4, Planning Commission Record on Application
WHEREAS, the Planning Commission held an advertised public hearing on said Project on
May 6, 1998, and voted 4-0-3 to recommend that the City Council approve the Project, based
upon the [IDdings listed below; and,
5, City Council Record of Applications
WHEREAS, a duly called and noticed public hearing was held before the City Council of
the City of Chula Vista on May 26, 1998 on the Project, received the recommendations of
the Planning Commission, and heard public testimony with regard to the same,
B. PLANNING COMMISSION RECORD
The proceedings and all evidence introduced before the Planning Commission at their public hearing
on this project held on May 6, 1998, and the minutes and resolutions resulting therefrom, are hereby
incorporated into the record of this proceeding.
~¡;;//
1
/
/
C. ENVIRONMENTAL DETERMINATION
The City's Environmental Review Coordiator has reviewed the Project d prepared an addendum
to the Rancho del Rey SPA III Final Supplemental Environmental act Report (89-10), which
concluded that changing the dèsignation of the site from CPF to OS-3 uld not result in significant
impacts pursuant to Section 15164 of the State CEQA Guidelines and therefore found that the
revisions would result in only minor technical changes or additions ich are necessary to make the
EIR adequate under CEQA.
D. SPA FINDINGS
1. THE SECTIONAL PLANNING AREA PLAN AS AMENDED IS IN CONFORMITY
WITH THE RANCHO DEL REY SPA III GE RAL DEVELOPMENT PLAN, AS
AMENDED, AND THE CHULA VISTA GE PLAN,
The proposed SPA amendment reflects land uses at are consistent with the Rancho del Rey
SPA III General Development Plan, as amend ,and the Chula Vista General Plan in that
the land uses allowed under the OS-3 designatio are similar in nature to public/quasi-public
uses allowed under the "Public/Quasi-Public" neral Plan designation.
2, THE RANCHO DEL REY SECTIONAL NING AREA PLAN, AS AMENDED,
WILL PROMOTE THE ORDERLY SE NTIALIZED DEVELOPMENT OF THE
INVOLVED SECTIONAL PLANNING A.
The proposed SPA amendment will allow e currently vacant site to be developed with a use
that helps meet the needs of the s unding community. The site is too small to
accommodate some of the uses allo under the current CPF designation, The SPA
amendment will allow the site to be keted for use as a day care facility which will
provide a needed service for the resid ts in the surrounding community.
3. THE RANCHO DEL REY SECTION PLANNING AREA (SPA) PLAN AS AMENDED
WILL NOT ADVERSELY A CTADIACENT LAND USE, RESIDENTIAL
ENJOYMENT, CIRCULATION, ENVIRONMENTAL QUALITY.
The land uses allowed within the S-3 designation are typically public/quasi-public uses
which are generally of a low im ct nature. While a church of day care facility is also
allowable under this land use des gnation, the size of such a facility, given the size of the
parcel, will not be a cause a sig ficant impact on the surrounding residential development,
Physical constraints of the site '11 prohibit vehicular access to the parcel off of Pasco
Entrada, Thus, access to th parcel will not negatively impact adjacent residential
development,
E. COUNCIL ACTION
The City Council of the City of Chu a Vista hereby directs that the parcel located at the northeast
comer of Pasco Ladera and Pasco Entrada, as shown on the attached Exhibit B, be redesignated OS-
3 Open Space and that all applicable maps found in the Rancho del Rey Specific Planning Area III
Plan be amended to reflect same.
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2
F. EFFECTIVE DATE OF THIS ORDINANCE
I This Ordinance shall take effect and be in full force the thirtieth day from its ado 'on.
Presented by Approved at to form by
Q A fl,\-^~~ ~
Robert A, Leiter 10 M,KMe~
Director of Planning City Attorney
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COUNCIL AGENDA STATEMENT
Item 7
Meeting Date 06/02/98
ITEM TITLE: RESOLUTION / ~t>.</ APPROVING THE ENVIRONMENTAL INOEMNITY
AGREEMENT BY ANO BETWEEN THE CITY OF CHULA VISTA ANO THE SAN OIEGO
UNIFIED PORT DISTRICT PURSUANT TO THE PURCHASE AND SALE AGREEMENT
FOR MARINA VIEW PARK DATED JUNE 6, 1997, AND AUTHORIZING THE MAYOR
TO EXECUTE SAME
SUBMITTED BY: Community Development Director C ~,
REVIEWED BY: C;tv .'","iJ)\L~ ~ (4/5ths Vote: Yes- NoÅ)
BACKGROUND:
On June 6, 1997, the City Council approved Resolution 18647 approving an Agreement for Purchase and
Sale and Escrow Instructions between the City of Chula Vista and the San Diego Unified Port District for
Marina View Park. Certain conditions of the Purchase and Sale Agreement for the conveyance of the City's
portion of the Park to the Port require that environmental investigation be conducted. Staff arranged for
a consultant to perform the required work, which included a Phase 1 and limited Phase 2 investigation. City
and Port staff agreed, pursuant to the Purchase and Sale Agreement, that in lieu of more exhaustive soil
and groundwater sampling, the City would provide additional indemnification to ensure that any presently
unknown liability of the City did not pass to the Port as a result of the property sale. The proposed
Environmental Indemnity Agreement provides such assurances.
RECOMMENDATION:
That the Council adopt the resolution approving the Environmental Indemnity Agreement by and between the
City of Chula Vista and the San Diego Unified Port District pursuant to the Purchase and Sale Agreement
for Marina View Park dated June 6, 1997, and authorizing the Mayor to execute same
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
The sole use of the subject property, since the adjacent land was created by fill operations of the Port, has
been as a park. Therefore, there is no substantial evidence of any activities that would have resulted in
contamination of soil and/or groundwater from uses on the site. There are, however, surrounding land uses
and industrial activities on both Port and City land that could have resulted in groundwater contamination
migrating to the site. In such a case, the ultimate liability for cleanup of the contamination rests with the
?--/
Page 2, Item -
Meeting Date 06/02/98
generator. However, liability for contamination under certain environmental laws may exist for a property
owner regardless of their culpability with respect to the actual release of contaminants. Port staff and
counsel is concerned that such liability would impact the Port as a result of the property transfer.
The indemnity agreement requires the City to indemnify the Port, or any successor thereof against damages
caused by the existence of hazardous materials on the site prior to close of escrow, regardless of who
generated such hazardous materials.
City staff believes that under these circumstances, the increased risk to the City resulting from the
indemnity being requested by the Port is not material. The City is already in the chain of title for the
property, and thus is already potentially liable for any hazardous materials issues that might arise. Although
City staff feels that there are more equitable ways to allocate the risks involved, the Port is very
conservative on hazardous materials issues, and is insisting on the enhanced indemnity as a condition to
transfer. To satisfy the concerns of Port staff, City staff is recommending approval of the resolution and
the agreement. This Agreement is the final condition to close escrow on the property. The City Attorney's
office has reviewed and approved the Environmental Indemnity Agreement.
FISCAL IMPACT:
The Environmental Indemnity Agreement itself is not likely to have a fiscal impact on the City, although it
does slightly increase the risk that the City could be found liable for any hazardous materials conditions on
the site. Upon close of escrow to which the indemnity relates, the City will receive $762,000, less escrow
costs and site investigation expenses, from the sale of Marina View Park, The estimated net proceeds
would be $740,000. These proceeds are to be equally split between the Agency and the City General Fund,
with each receiving $370,000.
(JMJ H:\HOME\COMMOEV\STAFF.RE~O5.02.98\MARINA.PRK (May 25. 1998 13:48pmlJ
7...,2
RESOLUTION NO. 19ð;2./
-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING THE ENVIRONMENTAL INDEMNITY
AGREEMENT BY AND BETWEEN THE CITY OF CHULA VISTA AND
THE SAN DIEGO UNIFIED PORT DISTRICT PURSUANT TO THE
PURCHASE AND SALE AGREEMENT FOR MARINA VIEW PARK
DATED JUNE 6, 1997, AND AUTHORIZING THE MAYOR TO
EXECUTE SAME
WHEREAS, the City and the Port have agreed to transfer the fee ownership of 2.71
acres of land known as the City's portion of Marina View Park; and
WHEREAS, in lieu of certain exhaustive and expensive environmental studies that
would otherwise be imposed by the Port as a condition of sale, and based on the low likelihood
of environmental liability resulting from City actions on the property, the Environmental Indemnity
Agreement does not substantially increase the City's potential liability or risk; and
WHEREAS, the Agreement is the final condition to close escrow on the property,
resulting in revenue accruing to the City
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista
does hereby:
1) Approve the Environmental Indemnity Agreement by and between the City of Chula Vista
and the San Diego Unified Port District in the form presented for the purposes of
implementing the Purchase and Sale Agreement for Marina View Park dated June 6, 1997,
and
2) Authorize the Mayor to execute same
Presented by Approved as to form by
~~ ~ ~--.f
\ A::>t I, "-" - - (,
y -- ~ -(--(\'\~~7",
Chris Salomone John M. 'Ka1¡1eny / (
Director of Community Development City Attorn¡¡y \
- ------
!lJM) H,IHOMEICOMMOEVIRESOS\MARINA.PRK )M" 28. 1998 19,15,mll
7-3 /7~f
------
AGREEMENT WAS NOT AVAILABLE AT THE TIME
OF MAILING. WILL FORWARD TO THE CITY
COUNCIL ONCE RECEIVED.
7-6
COUNCIL AGENDA STATEMENT Item No.: X
Meeting Date: 6/2/98
ITEM TITLE: RESOLUTION /9C-22 APPROVING THE
AGREEMENT BETWEEN ESGIL CORPORATION AND
THE CITY OF CHULA VISTA TO PROVIDE PLAN
CHECK ENGINEERING SERVICES
SUBMITTED BY: Director of Building and HOUSi~.V
REVIEWED BY: C"" Ma"",,;I)R '{) ~ (4/5ths Vote: Yes- No_X_)
On December 19, 1995, City Council approved Resolution No. 18162 approving the
agreement between the Esgil Corporation, 9320 Chesapeake Drive, San Diego and
the City to provide plan check engineering services for the Department of Building
and Housing on an as-needed basis. The contractual agreement between Esgil
Corporation and the City expires on June 30, 1998. Due to the need for technical
engineering support services on projects of unique structural complexities and to
offset peak demands for plan check services, staff prepared a Request For
Proposals (RFP) to solicit vendors to perform such engineering services. The RFP
was distributed to ten (10) vendors. Six (6) vendors responded, with the top four
vendors interviewed by the Selection Committee. After a thorough evaluation of
each vendor, the Committee determined that the Esgil Corporation be recommended
to continue the engineering technical support services for the City.
Recommendation: That the City Council adopt the Resolution approving a three
year agreement with Esgil Corporation for plan review engineering services, and
authorizing extension of agreement for FY 00 for not to exceed $100,000 and FY 01
for not to exceed $100,000 contingent upon continued compliance with the
Agreement and appropriation of funds in FY 00 and FY 01.
Boards/Commissions Recommendation: NIA
Discussion: During the current fiscal year seventy-one (71) projects were sent to the
outside plan review consultant. These projects were sent out due to their complex
structural design, however, in some cases projects were sent out in order to meet
applicant's expectations for reasonable turnaround times. The number of projects
sent to outside consultants during FY 98 represented a significant increase from
previous years and is due to an increase in overall construction activity and a
15---/
Plan Check Engineering Services Item No.:
Esgil Corporation Page 2
reduction of one Plans Examiner in the Department. Formerly the Department was
staffed with a Supervisor and two Plans Examiners through FY 96 and since reduced
to a Supervisor and one Plans Examiner. If the trends for future construction activity
continue to indicate a strong level of development, the Department will evaluate and,
if appropriate, recommend additional plan review staff be hired.
This agreement provides the Department of Building and Housing with a necessary
resource of engineering expertise for projects which require complex engineering
analysis. The Department intends to utilize the consultant's services for those
projects requiring advanced engineering analysis for plan review or to meet
reasonable plan check turn around times.
The proposed contract has been reviewed by the City Attorney and has been
approved for form. Staff recommends approval of a one year contract with two (2)
one year options (total of three (3) years) with Esgil Corporation for the 'not to
exceed' amounts as specified in the Fiscal Impact portion of this report. A multi-year
contract extending through FY-01 is being recommended in an effort to avoid the
staff costs associated with the preparing of a request for proposal, administering the
selection process and amending the contract. The Agreement is structured to allow
the City, at its sole discretion, to terminate the agreement at any time after having
given 30 days notice to Esgil Corporation. The decision to use the services of Esgil
Corporation for any or all plan review rests solely with the City and will be made on
a case-by-case basis by the Director of Building and Housing.
The Selection Process: The Selection Committee, as appointed by the City
Manager, was comprised of:
* Doug Perry, Fire Marshal
* Alex AI-Agha, Senior Civil Engineer
* Brad Remp, Assistant Director of Building and Housing
Upon receipt of the vendor's responses to the City's Request For Proposals, the
responses were reviewed by each member of the Selection Committee
independently using a preestablished list of evaluation criteria. Criteria evaluated
included the professional qualifications of employees, experience in reviewing
complex structures, and cost of services.
The six engineering firms responding to the RFP were rated on their technical
qualifications as follows:
~.--;¿
Plan Check Engineering Services Item No.:
Esgil Corporation Page 3
Company Location Total Pts.fTotal
Pts. Possible
1. EsDil Corooration San Dieao CA 74/75
2. Willdan Associates San Dieao, CA 64/75
3. Van Dome Chou, Assac. Granae, CA 63/75
4. Berrvman & Heniaar San Dieao, CA 63/75
5. Phillios Grouo Santa Rosa, CA 53/75
6. Meland & Assoc. Huntinaton Beach, CA 48/75
Cost Comparison - An example of the cost of services that would be charged by
each of the companies based on a proto-type commercial project of $200,000
valuation is identified in the table below.
ComDanv Fee for Service
Esail Corooration $624
VanDoroe Chou Assoc. $643
Willdan Associates $676
Berrvman & Heniaar $757
Meland & Assoc. $901
Phillies Groue $961
With the preestablished evaluation listing results tabulated, the Selection Committee
invited four vendors to participate in the formal interview process. The purpose of
these interviews was to confirm the information contained within each company's
proposal.
As a result of the initial reviews and the subsequent interviews, the Esgil Corporation
was identified as the unanimous choice of the Selection Committee based on their
outstanding qualifications, reputation in the region, highly successful experience in
prior service to the City of Chula Vista and the competitive rate charged for their
service.
?'3
Plan Check Engineering Services Item No.:
Esgil Corporation Page 4
Fiscal Impact:
All costs for plan review services, whether performed in-house or by the City's
consultant are borne by the applicant in the form of plan check fees. The plan check
fee provides sufficient revenue to cover both the cost of the plan review service
provided by the vendor and the Departments administrative overhead costs. There
is no additional cost to the permit applicant beyond the normal plan check as a result
of having their plans reviewed by the City's plan review consultant. As previously
stated, the Department of Building and Housing determines at the time of submittal
which projects will be transmitted to the plan check consultant for review based on
the complexity of the project or the backlog of work to be performed.
The projected expenses for these services over the next three fiscal years is as
follows:
FY 98-99 - Up to a maximum amount of $100,000
FY 99-00 - Up to a maximum amount of $100,000
FY 00-01 - Up to a maximum amount of $100,000
Staff believes that these proposed amounts will not be exceeded based on the
historical trend of the past four years and an estimate of proposed projects for plan
check submittal.
Attachments: (A) Bar Graph Depicting Consultant Fees Paid (FY-88 to FY-98)
(B) Cost Comparison Worksheet
BWR:bwr
(C:\WP8\con5unIESGLA98)
g/;j
RESOLUTION NO. /9CJ..2r2.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE AGREEMENT BETWEEN
ESGIL CORPORATION AND THE CITY OF CHULA VISTA
TO PROVIDE PLAN CHECK ENGINEERING SERVICES
WHEREAS, on December 19, 1995, the city Council approved
Resolution No. 18162 approving the agreement between Esgil
Corporation and the City to provide plan check engineering services
for the Department of Building and Housing on an as-needed basis;
and
WHEREAS, the contractual agreement between Esgil
Corporation and the City expires on June 30, 1998; and
WHEREAS, due to the need for technical engineering
support services on projects of unique structural complexities and
to offset peak demands for plan check services, staff prepared a
Request for Proposals (RFP) to solicit vendors to perform such
engineering services; and
WHEREAS, the RFP was distributed to ten vendors and six
vendors responded, with the top four vendors interviewed by the
Selection Committee; and
WHEREAS, after a thorough evaluation of each vendor, the
Committee determined that the Esgil Corporation be recommended to
continue the engineering technical support services for the City.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby approve the Agreement with Esgil
Corporation to provide plan check engineering services, a copy of
which is on file in the office of the City Clerk as Document No.-
-
BE IT FURTHER RESOLVED that the Mayor of the city of
Chula vista is hereby authorized and directed to execute said
Agreement for and on behalf of the City of Chula vista.
BE IT FURTHER RESOLVED that the City Council of the city
of Chula vista does hereby authorize extension of the agreement for
FY 00 for not to exceed $100,000 and FY 01 for not to exceed
$100,000, contingent upon continued compliance with the agreement
and appropriation of funds in FY 00 and FY 01.
Presented by Approved as to form by
Kenneth Larsen, Director of torney
Building and Housing
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Attachment B
Page 1
COST COMPARISON WORKSHEETS
CONTRACT CONSULTANTS VS. IN-HOUSE STAFF
PLAN CHECK ENGINEERING SERVICES
General:
1. Describe the task(s) to be performed.
To provide engineering technical support to the Department of Building and
Housing for plan review on projects which mandate greater expertise. in structural
engineering due to complexity and to augment existing staff on routine projects
when needed to respond to peak workload demands.
2. What is the expected duration of the projecUtask (number of weeks, months,
etc.)?
Services of the consultant will be required on an as-needed basis, dependent
upon the type and quantity of projects submitted for plan review. Consultant
services are requested for FY-99, FY-OO and FY-O1.
3. How frequently does the City need to do this project (times per month or year,
times per development, etc.)?
Services required will be on an as-needed basis as complex applications are
submitted or overall plan check workload exceeds staff resources. (Refer to
attached graph for consultant expenditure history.)
4a. Are there any in-house employees who could perform the task? What
classification of employee(s)?
Plan check for the structurally complex projects require expertise not possessed
by current staff. Existing Plans Examiners are capable of performing the routine
plan checks, however, extreme peaks in workload demand exceed staff's ability
to complete the plan checks within the time frames required to meet the needs
of the development sector.
4b. If there are such employees, why wouldn't they be utilized for this project?
No additional employees in this classification are available.
4c. If such employees would not be used due to workload, what work would be
displaced if the task were to be performed in-house?
Not applicable
4d. If workload is a factor, could staff of lower classification be hired to handle extra
(J'?
Attachment B
Page 2
work so that staff of higher classification could concentrate their time on the
project? Explain.
Structurally complex work is beyond staff ability and hiring employees to assist
with routine plan review workload would need to be of same classification as
existing plan review staff.
5. Would the project take more or less time for in-house staff versus a consultant
(e.g. consultant has pre-prepared boilerplate materials, software, etc.)?
Due to cost and limitations on City overtime, the frequency of interruptions to
respond to public counter questions as well as the lack of immediate access to
technical experts, in-house projects would probably take longer to process than
through the outside consultant.
6. Are there any qualitative reasons to choose either a consultant or in-house staff
(e.g. special expertise, knowledge of City operations)? Explain.
Consultant services are preferred due to specialized expertise that is required.
The limited frequency and duration of the need for this level of expertise, in
variety of engineering fields, would not warrant in-house positions. The need for
assistance in handling a large quantity of routine plan review work may warrant
the addition of an additional in-house Plans Examiner in the future. The current
high level of workload will be evaluated to determine long-term trends and may
result in a Department request to higher an additional Plans Examiner position.
This would reduce the Department's dependance on an outside consultant, but
not eliminate it for those cases of unique structural complexity.
Consultant Aareement
7. Base Contract Cost
FY 99 - Not to exceed $100,000
FY 00 - Not to exceed $100,000
FY 01 - Not to exceed $100,000
8. Applicable rates (including travel, word processing, hourly or daily charges,
clerical support, meeting attendance, sales tax, etc.), estimated units per rate,
and resultant costs (e.g. five trips from LA. @ $50/trip - $250).
Rate of plan review services is based on percentage of building project valuation;
and does not exceed 65 percent of plan review fees collected by the City.
9. Method and terms of payment.
Consultant bills City on the first of each month; invoice is due 30 days net.
10. Performance guarantees (e.g. withh?9 of payment for unsatisfactory work,
F'~
Attachment B
Page 3
termination of contract, etc.)
Contract may be terminated based on unsatisfactory performance. Consultant
shall protect against the risk of loss by the following insurance coverages, in the
following categories:
a) Statutory Workers' Compensation Insurance and Employer's Liability
Insurance
b) Commercial General Liability Insurance, including Business Automobile
Insurance
c) Errors and Omissions Insurance in the amount of $1 ,000,000
11. Is consultant licensed to do business in the City?
Yes.
g-~1
Attachment B
Page 4
CITY OF CHULA VISTA
CONSULTANT COST COMPARISON WORKSHEET
PLAN CHECK ENGINEERING SERVICES
(NOTE: COMPARISON FIGURES BASED ON ROUTINE PROJECTS SENT TO CONSULTANT TO
REDUCE WORKLOAD BACKLOG. PROJECTS REQUIRING MULTIPLE SPECIALIZED
ENGINEERING EXPERTISE ARE NOT CONSIDERED IN COMPARISON,)
CONSULTANT COST IN-HOUSE COST
Base Rates:" Base Rates:
Base Contract Cost $50,000"" Full-Time Equivalent
Employee Hourly Wage: $19.23
Consultant Hourly Rate
Estimated Actual Hours: 1560=(.75 FTE)
Additional Rates
(Aggregate Cost)
Total Base Cost Total Base Cost $30,000
"Note: Consultant cost based on approx.
65% of plan review fee collected per project
""Note: Assumes 50% of projects sent out
are due to workload backlog
FCR BASED COSTS" FCR BASED COSTS
Contract Monitoring! Division
Support Costs $4,163 FCR Factor 3.198
Subtotal Subtotal
(Base + Support Costs) $54,163 (Base X FCR Factor) $95,940
OTHER OTHER
Supplies, Furniture, Supplies, Furniture
and Equipment $0 and Equipment $3,500
Business License Tax $105
Other Applicable Tax $0 Other Applicable Tax
----------------------------------------------------------------------
----------------------------------------------------------------------
TOTAL COST $54.268 $99.440
" For monitoring and support costs, see attached worksheet.
¡{"it?
Attachment B
Page 5
CONSULTANT MONITORING/SUPPORT WORKSHEET
1. Clerical Support/Supplies:
(X) Independent consultant; no use of office space, clerical support or supplies
( ) Limited use of clerical support, office space and supplies
() On-site consultant with office space, clerical support and supplies
2. Request for Qualifications/Proposals - Preparation:
Employee Preparing RFQ/RFP: Brad Remp Hourly Rate: $34.19
Full Cost Recovery Rate: 1.982 Time Required: 20 hours
Total Cost: $1.355
Employee Preparing RFQ/RFP: Yeelin Uvbunaco Hourly Rate: $16.88
Full Cost Recovery Rate: 1.982 Time Required: 3 hours
Total Cost: $100
3. Monitoring/SupervisionfTechnical Assistance:
(X) Consultant provides end product only; little intermediate monitoring
() Select department staff involved in periodic meetings with consultant to
discuss progress, goals and objectives of project on an ongoing or frequent
basis
() Department head and staff involved in periodic meetings with consultant
to discuss progress, goals and objectives of project on an ongoing or
frequent basis
4. Monitoring/SupervisionfTechnical Assistance Personnel (Non-clerical):
Employee: Bill Teachworth. Chief Plans Examiner Hourly Rate: $27.12
Describe interaction with consultant: Review invoices for accuracy of billing
FCR Rate: 3.198 Time Required: 4 hour/month Total Cost: $4.163/vear
g~// /S>-,JL!
Œ()9Jï- ópg
~1~Od.;{
Agreement between
City of Chula Vista
and
Esgil Corporation
for Plan Review Services
This agreement ("Agreement"), dated July 1, 1998 for the
purposes of reference only, and effective as of the date last
executed unless another date is otherwise specified in Exhibit A,
Paragraph 1 is between the city-related entity as is indicated on
Exhibit A, paragraph 2, as such ("city"), whose business form is
set forth on Exhibit A, paragraph 3, and the entity indicated on
the attached Exhibit A, paragraph 4, as Consultant, whose
business form is set forth on Exhibit A, paragraph 5, and whose
place of business and telephone numbers are set forth on Exhibit
A, paragraph 6 ("Consultant"), and is made with reference to the
following facts:
Recitals
Whereas, City desires to employ the services of a contractor
to provide Building Inspection Department services involving
providing plan checking of proposed building construction plans;
and
Whereas, City desires to implement a high level of
professional and technical Building Inspection Department
services at a cost less than the fees paid by the permit
applicants; and
Whereas, city does not wish to increase staff size where
equal or better services can be provided at a lesser cost to the
City by using contractor services provided by the private sector;
and
Whereas, city does not wish to risk having to fund deficits
incurred in the operation of the Building Inspection Department
during low periods of activity in the cyclical construction
industry; and
Whereas, City wishes to contract with a firm directed by
persons having experience and knowledge in the interpretation and
application of complex regulations providing for protection of
the public; and
[5- / .2
Whereas, City desires to contract with a firm presently
successfully providing plan review services to building
inspection departments; and
Whereas, City wishes to avoid conflict of interest problems
by contracting with corporation that performs no work for the
private sector and provides services exclusively to government
entities; and
Whereas, Consultant's founding director's are both
registered Professional Engineers in the state of California and
they have served fifteen and thirteen years, respectively, in
high level regulatory management positions in local government;
and
Whereas, Consultant is willing to enter into a contract with
the city to provide building inspection department plan check
services to the city in accordance with this contract; and
Whereas, Consultant warrants and represents that they are
experienced and staffed in a manner such that they are and can
prepare and deliver the services required of Consultant to City
within the time frames herein provided all in accordance with the
terms and conditions of this Agreement;
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 2
3r/J
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant
do hereby mutually agree as follows:
1. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on
the attached Exhibit A, Paragraph 7, entitled "General Duties";
and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General
Duties", Consultant shall also perform all of the services.
described in Exhibit A, Paragraph 8, entitled" Scope of Work and
Schedule", not inconsistent with the General Duties, according
to, and within the time frames set forth in Exhibit A, Paragraph
8, and deliver to City such Deliverables as are identified in
Exhibit A, Paragraph 8, within the time frames set forth therein,
time being of the essence of this agreement. The General Duties
and the work and deliverables required in the Scope of Work and
Schedule shall be herein referred to as the "Defined Services",
Failure to complete the Defined Services by the times indicated
does not, except at the option of the City, operate to terminate
this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request from Consultant,
from time to time reduce the Defined Services to be performed by
the Consultant under this Agreement. Upon doing so, City and
Consultant agree to meet in good faith and confer for the purpose
of negotiating a corresponding reduction in the compensation
associated with said reduction.
D. Additional Services
In addition to performing the Defined Services herein set
forth, city may require Consultant to perform additional
consulting services related to the Defined Services ("Additional
Services"), and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform
same on a time and materials basis at the rates set forth in the
"Rate Schedule" referenced in Exhibit A, Paragraph 11 (C), unless
a separate fixed fee is otherwise agreed upon, All compensation
for Additional Services shall be paid monthly as billed.
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 3
%-/1
E, Standard of Care
Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services, shall perform in
a manner consistent with that level of care and skill ordinarily
exercised by members of the profession currently practicing under
similar conditions and in similar locations,
F. Insurance
Consultant represents that it and its agents, staff and
subconsultants employed by it in connection with the Services
required to be rendered, are protected against the risk of loss
by the following insurance coverages, in the following categor-
ies, and to the limits specified, policies of which are issued by
Insurance Companies that have a Best's Rating of "A, Class V" or
better, or shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's
Liability Insurance coverage in the amount set forth in the
attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business
Automobile Insurance coverage in the amount set forth in Exhibit
A, Paragraph 9, combined single limit applied separately to each
project away from premises owned or rented by Consultant, which
names City and Applicant as an Additional Insured, and which is
primary to any policy which the city may otherwise carry
("Primary Coverage"), and which treats the employees of the City
and Applicant in the same manner as members of the general public
("Cross-liability Coverage").
Errors and omissions insurance, in the amount set forth in
Exhibit A, Paragraph 9, unless Errors and omissions coverage is
included in the General Liability policy.
G, Proof of Insurance Coverage.
(1) certificates of Insurance.
Consultant shall demonstrate proof of coverage herein
required, prior to the commencement of services required under
this Agreement, by delivery of Certificates of Insurance
demonstrating same, and further indicating that the policies may
not be canceled without at least thirty (30) days written notice
to the Additional Insured.
(2) Policy Endorsements Required.
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 4
r~J/
In order to demonstrate the Additional Insured
Coverage, Primary Coverage and Cross-liability Coverage required
under Consultant's Commercial General Liability Insurance Policy,
Consultant shall deliver a policy endorsement to the City
demonstrating same, which shall be reviewed and approved by the
Risk Manager,
H. Securitv for Performance.
(1) Performance Bond,
In the event that Exhibit A, at Paragraph 17, indicates
the need for Consultant to provide a Performance Bond (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Performance Bond"), then Consultant
shall provide to the City a performance bond by a surety and in a
form and amount satisfactory to the Risk Manager or City Attorney
which amount is indicated in the space adjacent to the term,
"Performance Bond", in said Paragraph 17, Exhibit A,
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 17, indicates
the need for Consultant to provide a Letter of credit (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Letter of credit"), then Consultant
shall provide to the City an irrevocable letter of credit
callable by the City at their unfettered discretion by submitting
to the bank a letter, signed by the city Manager, stating that
the Consultant is in breach of the terms of this Agreement. The
letter of credit shall be issued by a bank, and be in a form and
amount satisfactory .to the Risk Manager or city Attorney which
amount is indicated in the space adjacent to the term, "Letter of
Credit", in said Paragraph 17, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 17, indicates
the need for Consultant to provide security other than a -
Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph
entitled "Other Security"), then Consultant shall provide .to the
city such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney.
1. Business License
Consultant agrees to obtain a business license from the City
and to otherwise comply with Title 5 of the Chula Vista Municipal
Code.
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 5
ff'--/~
2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule
therein contained, and to provide direction and guidance to
achieve the objectives of this agreement. The City shall permit
access to its office facilities, files and records by Consultant
throughout the term of the agreement. In addition thereto, City
agrees to provide the information, data, items and materials set
forth on Exhibit A, Paragraph 10, and with the further
understanding that delay in the provision of these materials
beyond 30 days after authorization to proceed, shall constitute a
basis for the justifiable delay in the Consultant's performance
of this agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant
submitted to the city periodically as indicated in Exhibit A,
Paragraph 16, but in no event more frequently than monthly, on
the day of the period indicated in Exhibit A, Paragraph 16, city
shall compensate Consultant for all services rendered by Consult-
ant according to the terms and conditions set forth in Exhibit A,
Paragraph 11, adjacent to the governing compensation relationship
indicated by a "checkmark" next to the appropriate arrangement.
All billings submitted by Consultant shall contain
sufficient information as to the propriety of the billing to
permit the City to evaluate that the amount due and payable
thereunder is proper, and shall specifically contain the City's
account number indicated on Exhibit A, Paragraph 16 (C) to be
charged upon making such payment.
3. Administration of Contract
Each party designates the individuals ("Contract
Administrators") indicated on Exhibii: A, Paragraph 12, as said
party's contract administrator who is authorized by said party to
represent them in the routine administration of this agreement.
4. Term.
This Agreement shall terminate when the Parties have
complied with all executory provisions hereof.
5. Liquidated Damages
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 6
~//?
The provisions of this section apply if a Liquidated Damages
Rate is provided in Exhibit A, Paragraph 13.
It is acknowledged by both parties that time is of the
essence in the completion of this Agreement. It is difficult to
estimate the amount of damages resulting from delay in per-
formance. The parties have used their judgment to arrive at a
reasonable amount to compensate for delay.
Failure to complete the Defined Services within the allotted
time period specified in this Agreement shall result in the
following penalty: For each consecutive calendar day in excess
of the time specified for the completion of the respective work
assignment or Deliverable, the consultant shall pay to the City,
or have withheld from monies due, the sum of Liquidated Damages
Rate provided in Exhibit A, Paragraph 13 ("Liquidated Damages
Rate").
Time extensions for delays beyond the consultant's control,
other than delays caused by the city, shall be requested in
writing to the City's Contract Administrator, or designee, prior
to the expiration of the specified time. Extensions of time,
when granted, will be based upon the effect of delays to the work
and will not be granted for delays to minor portions of work
unless it can be shown that such delays did or will delay the
progress of the work.
6. Financial Interests of Consultant
A. Consultant is Designated as an FPPC Filer,
If Consultant is designated on Exhibit A, Paragraph 14, as
an "FPPC filer", Consultant is deemed to be a "Consultant" for
the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the
city Clerk on the required statement of Economic Interests in
such reporting categories as are specified in Paragraph 14 of
Exhibit A, or if none are specified, then as determined by the
City Attorney,
B. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to
know Consultant has a financial interest other than the
compensation promised by this Agreement.
C, Search to Determine Economic Interests.
Plan Review Services Agreement Esgil Corporation
May 19, 1998 ?,'--/~ Page 7
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant warrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations
promulgated by the Fair Political Practices Commission, and has
determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with
Consultant's duties under this agreement.
D. Promise Not to Acquire Conflicting Interests,
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during
the term of this Agreement which would constitute a conflict of
interest as prohibited by the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests,
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will immediately advise the City Attorney of City if Consultant
learns of an economic interest of Consultant's which may result
in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
F. Specific Warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant,
nor Consultant's immediate family members, nor Consultant's
employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in any property
which may be the subject matter of the Defined Services, or in
any property within 2 radial miles from the exterior boundaries
of any property which may be the subject matter of the Defined
Services, ("Prohibited Interest"), other than as listed in
Exhibit A, Paragraph 14,
Consultant further warrants and represents that no promise
of future employment, remuneration, consideration, gratuity or
other reward or gain has been made to Consultant or Consultant
Associates in connection with Consultant's performance of this
Agreement. Consultant promises to advise City of any such
promise that may be made during the Term of this Agreement, or
for 12 months thereafter,
Consultant agrees that Consultant Associates shall not
acquire any such Prohibited Interest within the Term of this
Agreement, or for 12 months after the expiration of this
Agreement, except with the written permission of City,
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 8
~'l1
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
conflict with Consultant's responsibilities under this Agreement,
except with the written permission of city.
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers and
employees, from and against all claims for damages, liability,
cost and expense (including without limitation attorneys' fees)
arising out of the conduct of the Consultant, or any agent or
employees, subcontractors of theirs in connection with the
execution of the work covered by this Agreement, except only for
those claims arising from the sole negligence or sole willful
conduct of the City, its officers, or employees. Consultant's
indemnification shall include any and all costs, expenses,
attorneys' fees and liability incurred by the City, its officers,
agents, or employees in defending against such claims, whether
the same proceed to judgment or not. Further, Consultant at its
own expense shall, upon written request by the City, defend any
such suit or action brought against the City, its officers,
agents, or employees which is covered by the scope of this
indemnity. Consultants' indemnification of City shall not be
limited by any prior or subsequent declaration by the Consultant.
The parties further agree that Consultant shall be entitled to
assert any and all immunities and defenses under the California
Tort Claims Act to any third party claim for those acts performed
under this agreement,
8. Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a
timely and proper manner Consultant's obligations under this
Agreement, or if Consultant shall violate any of the covenants,
agreements or stipulations of this Agreement, City shall have the
right to terminate this Agreement by giving written notice to
Consultant of such termination and specifying the effective date
thereof at least five (5) days before the effective date of such
termination. In that event, all finished or unfinished documents,
data, studies, surveys, drawings, maps, reports and other
materials prepared by Consultant shall, at the option of the
City, become the property of the city, and Consultant shall be
entitled to receive just and equitable compensation for any work
satisfactorily completed on such documents and other materials up
to the effective date of Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused city by
Consultant's breach,
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 9
ífr~C?
9. Errors and Omissions
In the event that the City Administrator determines that the
Consultants' negligence, errors, or omissions in the performance
of work under this Agreement has resulted in expense to City
greater than would have resulted if there were no such
negligence, errors, omissions, Consultant shall reimburse City
for any additional expenses incurred by the City, Nothing herein
is intended to limit city's rights under other provisions of this
agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any
reason, by giving specific written notice to Consultant of such
termination and specifying the effective date thereof, at least
thirty (30) days before the effective date of such termination.
In that event, all finished and unfinished documents and other
materials described hereinabove shall, at the option of the City,
become city's sole and exclusive property. If the Agreement is
terminated by City as provided in this paragraph, Consultant
shall be entitled to receive just and equitable compensation for
any satisfactory work completed on such documents and other
materials to the effective date of such termination, Consultant
hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth
herein.
11. Assignability
The services of Consultant are personal to the City, and
Consultant shall not assign any interest in this Agreement, and
shall not transfer any interest in the same (whether by
assignment or novation), without prior written consent of city,
city hereby consents to the assignment of the portions of the
Defined Services identified in Exhibit A, Paragraph 17 to the
subconsultants identified thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and
exclusive property of City, No such materials or properties
produced in whole or in part under this Agreement shall be
subject to private use, copyrights or patent rights by Consultant
in the United States or in any other country without the express
written consent of City. City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions
of the Public Records Act), distribute, and otherwise use,
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 10
8'-,2/
copyright or patent, in whole or in part, any such reports,
studies, data, statistics, forms or other materials or properties
produced under this Agreement.
13, Independent Contractor
City is interested only in the results obtained and
Consultant shall perform as an independent contractor with sole
control of the manner and means of performing the services
required under this Agreement. City maintains the right only to
reject or accept Consultant's work products. Consultant and any
of the Consultant's agents, employees or representatives are, for
all purposes under this Agreement, an independent contractor and
shall not be deemed to be an employee of City, and none of them
shall be entitled to any benefits to which City employees are
entitled including but not limited to, overtime, retirement
benefits, worker's compensation benefits, injury leave or other
leave benefits. Therefore, City will not withhold state or
federal income tax, social security tax or any other payroll tax,
and Consultant shall be solely responsible for the payment of
same and shall hold the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this
agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by
the City in accordance with the procedures set forth in Chapter
1,34 of the Chula vista Municipal Code, as same may from time to
time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and
procedures used by the City in the implementation of same.
Upon request by City, Consultant shall meet and confer in
good faith with city for the purpose of resolving any dispute
over the terms of this Agreement,
15, Attorney's Fees
Should a dispute arising out of this Agreement result in
litigation, it is agreed that the prevailing party shall be
entitled to recover all reasonable costs incurred in the defense
of the claim, including costs and attorney's fees.
16. Statement of Costs
In the event that Consultant prepares a report or document,
or participates in the preparation of a report or document in
performing the Defined Services, Consultant shall include, or
cause the inclusion of, in said report or document, a statement
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 11
8rpÎ,2-
of the numbers and cost in dollar amounts of all contracts and
subcontracts relating to the preparation of the report or
document.
17, Miscellaneous
A. Consultant not authorized to Represent city
Unless specifically authorized in writing by City, Consult-
ant shall have no authority to act as city's agent to bind City
to any contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 15 is marked, the
Consultant and/or their principals is/are licensed with the State
of California or some other state as a licensed real estate
broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor their principals are licensed real estate
brokers or salespersons,
C. Notices
All notices, demands or requests provided for or permitted
to be given pursuant to this Agreement must be in writing, All
notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served
or deposited in the United states mail, addressed to such party,
postage prepaid, registered or certified, with return receipt
requested, at the addresses identified herein as the places of
business for each of the designated parties.
D. Entire Agreement
This Agreement, together with any other written document
referred to or contemplated herein, embody the entire Agreement
and understanding between the parties relating to the subject
matter hereof. Neither this Agreement nor any provision hereof
may be amended, modified, waived or discharged except by an
instrument in writing executed by the party against which
enforcement of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and
represents to the other party that it has legal authority and
capacity and direction from its principal to enter into this
Agreement, and that all resolutions or other actions have been
taken so as to enable it to enter into this Agreement.
Plan Review Services Agreement Esgil Corporation
May 19, 1998 Page 12
~~~J
F. Governing Law/Venue
This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action
arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State
of California, and if applicable, the City of Chula Vista, or as
close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
Plan Review Services Agreement Esgil Corporation
May 1.9, 1.998 .Page 1.3
%' p? f
Signature Page
to
Agreement between City of Chula vista and Esgil Corporation
for Plan Review Services
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
Dated: , 19 - City of Chula Vista
by:
Shirley Horton, Mayor
Attest:
Beverly Authelet, City Clerk
Approved as to form:
pz: '~';'~Atto=ey
Dated: ~d l..)f /7"Tð'"
By:
Exhibit List to Agreement
( ) Exhibit A.
( ) Exhibit B:
Plan Review Services Agreement Esgil Corporation
May 19, 1998 ~-~ Page 14
Exhibit A
to
Agreement between
City of Chula Vista
and
Esgil Corporation
1. Effective Date of Agreement: July 1, 1998
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of
the state of California
( ) Redevelopment Agency of the City of Chula Vista, a
political subdivision of the state of California
( ) Industrial Development Authority of the city of Chula
Vista, a
( ) Other: , a
("City")
3, Place of Business for City:
city of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant:
Esgil Corporation
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(XX) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
Esgi1 Corporation
9320 Chesapeake Dr., suite 208
San Diego, CA 92123
Voice Phone (619) 560-1468
Fax Phone (619) 560-1576
Plan Check Services Exhibit A to Esgil Corp. Agreement
May 19, 1998 Page 1
g--, -2 /.
7. General Duties:
Consultant shall provide professional services for the review
of proposed building plans for conformance to regulations
contained in state mandated building, plwnbing, mechanical and
electrical codes, as those codes are amended by the CITY;
provisions of access to buildings by persons with disabilities
and provisions to attenuate noise in buildings; to perform
additional work when requested by CITY; and to perform all the
described work in accordance with the terms and conditions
hereinafter set forth.
8. Scope of Work and Schedule:
A, Detailed Scope of Work:
1. Perform traditional initial plan review submitted
plans for the above project to determine compliance
with city adopted:
Uniform Building Code
Uniform Plwnbing Code
Uniform Mechanical Code
National Electrical Code
California State Title 24 (Energy Conservation;
Disabled Access; and Noise Attenuation)
2. Provide the applicant's designee and the city a
typed list of items needing clarification or change
to achieve conformance with the above regulations.
3. Perform all necessary liaison with the applicant's
designee, either by telephone, mail or meeting in
Esgil Corporation's main office, and perform all
necessary rechecks to achieve conformance to the
regulations,
4, Perform all necessary liaison with the Building
Official or his designee, either by mail, telephone
ôr in Esgil Corporation's office, to insure
compliance with UBC Sections 104.2,7 and 104.2,8
and to insure compliance with local
interpretations.
5. Perform plan reviews of revisions to plans that
have previously been approved for permit issuance,
or perform plan reviews of major changes to plans
prior to such approval, when such major changes are
not required to achieve code conformance.
Plan Check Services Exhibit A to Esgil Corp. Agreement
May 19, 1998 Page 2
g',-,27
6. Attend meetings related to proposed building
projects at the request of the Building Official at
locations other than Esgil Corporation's Plan Check
Office.
B. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
( ) Other:
C. Dates or time Limits for Delivery of Deliverables:
Esgil Corporation agrees to provide adequate resources to
achieve the following service delivery goals for timely
performance of the work over which Esgil Corporation has
decision authority.
I. Buildings less than four stories and of normal
complexity
SERVICE GOAL: Complete initial plan review in
fifteen work days or less.
II. Buildings four or more stories in height or of
unusual complexity
SERVICE GOAL: As agreed by the CITY'S Director of
Building and Housing
D. Contractor Performance Documentation
Esgil Corporation shall note on the initial plan check
correspondence:
1. The day of the week and the date the plans were
received;
2, the day of the week and the date the initial plan
check was completed;
3. the day of the week and the date the applicant's
designee was notified the initial plan check was
completed; and
4. The calculated number of work days to complete the
initial plan check
Plan Check Services Exhibit A to Esgil Corp. Agreement
May 19, 1998 Page 3
5f>~r
E. Final Decision Authority
The CITY'S Director of Building and Housing shall have
final decision authority over the results of the plan
check by Esgil Corporation and all work performed by
Esgil Corporation shall be to the satisfaction of the
Director of Building and Housing.
9. Insurance Requirements:
(X) statutory Worker's Compensation Insurance
( ) Employer's Liability Insurance coverage: $1,000,000,
(X) Commercial General Liability Insurance: $1,000,000,
() Errors and omissions insurance: None Required (included
in Commercial General Liability coverage).
(X) Errors and Omissions Insurance: $250,000 (not included
in Commercial General Liability coverage).
10. Materials Required to be Supplied by City to Consultant:
A. Obtain from the applicant, at the time of the project
submittal, the necessary items to allow plan checking to
be completed in the shortest overall time frame.
Necessary items include, but are not limited to, complete
plans, construction specifications, designated contact
person and similar items that may be unique to a
particular project.
B. Provide the valuation for the proposed construction or
instruct Esgil Corporation to calculate the valuation in
accordance with the method used by the CITY.
C. Provide Esgil corporation with copies of any CITY
ordinances that modify the .regulations adopted by the
State of California
D. Collect sufficient plan check fees or deposits from
project applicants to ensure the CITY will not suffer a
loss if the applicant decides to abandon the permit
process after Esgil Corporation has completed the initial
plan check.
E. CITY shall regularly consult Esgil Corporation for the
purpose of reviewing the progress of the Work Plan and to
provide direction and guidance to achieve the objectives
of the project. The CITY shall permit access to its
office facilities, files and records by Esgil Corporation
throughout the term of the Contract.
Plan Check Services Exhibit A to Esgil Corp, Agreement
May 19, 1998 Page 4
(f'o21
11. Compensation:
A. Compensation for each plan review under Section 8 A 1.
shall be 45% of the Building Permit Fee calculated per
Section Table I-A of the 1994 Edition of the Uniform
Building Code, This rate shall be applicable until the
CONTRACT expires.
The construction valuation shall be based on the
valuation table adopted by the city of Chula Vista, The
value to be used in computing the building permit and
building plan review fees shall be the total value of all
construction work.
Not withstanding the above, the minimum CONTRACTOR fee
for any proposed project shall be one hundred dollars
($100.00).
Plan check fee for repetitive identical buildings shall
be 45% of the Building Permit Fee for the first, or basic
building, and 10% of the Building Permit Fee as noted
above for each additional building.
B. Compensation under section 8A(5) shall be calculated
either the same as 11A, or shall be based on Esgil
Corporation's current labor rates schedule. The method
to be used will be at the discretion of Esgil
Corporation.
C. Compensation for work performed under 8A(6) shall be
based on the attached Labor Rates Schedule (Attachment A)
as modified each January 1 and July 1st.
D. Esgil Corporation shall submit on the first work day of
each month the invoice for initial plan reviews performed
during the prior month, Payment of approved items on the
invoice shall be mailed to Esgil Corporation prior to the
twenty-fifth (25th) day of each month the invoice was
submitted, Payments not made within the above time frame
shall, when paid, be increased one and one-half percent
per month, or portion of a month, for each month the
payment was delayed.
12, Contract Administrators
city: Kenneth Larsen, Director, Department of Building
and Housing, Public Services Building, 276 Fourth
Av" Chula Vista, CA 91910, (619) 691-5007
Plan Check Services Exhibit A to Esgil Corp. Agreement
May 19, 1998 Page 5
25:Jt7
Consultant:
Richard Esgate, President, Esgi1 Corporation, 9320
Chesapeake Dr., Suite 208, San Diego, CA 92123,
(619) 560-1468
13. Liquidated Damages Rate:
( ) $ - per day.
( ) Other:
Plan Check Services Exhibit A to Esgil Corp, Agreement
May 19, 1998 Page 6
g<--J/
14. statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
(XX) Not Applicable. Not an FPPC Filer.
( ) FPPC Filer
( ) Category No. 1. Investments and sources of income.
( ) category No. 2. Interests in real property.
( ) Category No. 3. Investments, interest in real
property and sources of income subject to the
regulatory, permit or licensing authority of the
department.
( ) Category No. 4, Investments in business entities
and sources of income which engage in land
development, construction or the acquisition or
sale of real property.
( ) Category No, 5. Investments in business entities
and sources of income of the type which, within the
past two years, have contracted with the City of
Chula vista (Redevelopment Agency) to provide
services, supplies, materials, machinery or
equipment.
( ) Category No. 6, Investments in business entities
and sources of income of the type which, within the
past two years, have contracted with the designated
employee's department to provide services,
supplies, materials, machinery or equipment.
( ) category No, 7. Business positions.
( ) List "Consultant Associates" interests in real property
within 2 radial miles of Project Property, if any:
15. ( ) Consultant is Real Estate Broker and/or Salesman
16. Bill Processing:
Plan Check Services Exhibit A to Esgil Corp. Agreement
May 19, 1998 Page 7
?~32
A. Consultant's Billing to be submitted for the following
period of time:
(XX) Monthly
( ) Quarterly
( ) Other:
B, Day of the Period for submission of Consultant's Billing:
(XX) First of the Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other:
C. City's Account Number: 408-4080-DBOOl
17. Security for Performance
( ) Performance Bond, $
( ) Letter of Credit, $
( ) Other Security:
Type:
Amount: $
( ) Retention. If this space is checked, then
notwi thstanding other provisions to the contrary
requiring the payment of compensation to the Consultant
sooner, the city shall be entitled to retain, at their
option, either the following "Retention Percentage" or
"Retention Amount" until the City determines that the
Retention Release Event, listed below, has occurred:
( ) Retention Percentage: - %
( ) Retention Amount: $
Retention Release Event:
( ) Completion of All Consultant Services
( ) Other:
Plan Check Services Exhibit A to Esgil Corp. Agreement
May 19, 1998 g--.33 Page 8
f\ L LdLlllllerr L f\
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!!S!!! Corporation
ProføølOfUll Plan R-utnIJ Jingt-
LÅBOR RÁ TES ¡;jrR1l'.DULE
REGTTT.AR 1'R1i'.1I'IœRED
CLA¡;j!ilTFTC'.Á TJON BAI:E. . BArE.
Division Manager $157.50 $118.65
Supervising Structural Engineer 148.43 112.00
Civil, Electtical, R.C.E 115.50 87.15
Electrical Enginc:er. B.E. 115.50 87.15
Fire Protection Engineers, F;P.E. 115,50 87.15
Mechanical Engineer, M,E. 115.50 87,15
Structural Engineer, SoB. 129.88 98.00
Energy Plans EXlIIIliner, C.B.C.I 115.50 87.15
l.C,B.O. Plans Examiner 98,70 74.55
Supervising Building Inspector 105.00 78.75
Building Inspector 89.25 67.20
Permit Specialist 80.85 60,90
Word Processing 55.65 42.00
Clerical Support 37.80 28.35
Corporate Attorney 280.35 210.00
- I!W:IES-: .Hourly
1. Labor rates are only used for work when rcquest=d by our clients, where a Building Code
plan review fee is not applicable or ap¡m¡priaJ:c.
2, Preferred rates are'used for all clientjurisdictioDS where Esgi! Corporation has It current
approved plan review contract in place,
3. The rates de not include c:xpenses ",suIting from tranSportation, meals, lodging and similar
costs when Bsgil Corporation is ¡m¡viding services outside the greater San Diego County
area..
(Rates are evaluaícd eaçh yem.)
""",U"""""11!II.
.-, <jJ-Jý
9320 Chesapeake Drt\'l:,Swtc 208 . San DIc:SD,Callfcrnla 92123 . (619) 560-1468 . Fa (619) 560-1576
Z ",,"V¿ 9¿51 095 619
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COUNCIL AGENDA STATEMENT
1
IteID-_-
Meeting 06/02/98
ITEM TITLE: Resolution J rtl.2.3waiving bidding as impractical and awarding
Purchasing Agreements for the purchase of three pickup trucks.
SUBMITTED BY: Director of Public Works f} {fPl
Director of Finance ¡.r ~
REVIEWED BY: City Manage~ þ~ ....-? (4/5ths Vote: Yes_No_XJ
At the City Council Meeting of March 3, 1998, the City Council accepted bids and awarded
Purchasing Agreements for the purchase of fourteen pickup trucks to three vendors. Staff has
found that it is necessary to purchase three additional pickup trucks. Staff wishes to use the bid
previously awarded on March 3, 1998 (see attached Agenda Statement). Section 2.56.070 of the
Municipal Code requires that fonnal bids be obtained for purchases in excess of $25,000 unless
Council finds that obtaining the bids is impractical. Since the vendor has agreed to the same
tenns and conditions offered in the bid awarded on March 3, staff believes that it is impractical
to spend the staff time and expense to rebid these three trucks. In addition, due to manufacturer
production cutoffs, the time required for fonnal bidding is not available. The successful bidder
for the type of truck being purchased is a local vendor.
RECOMMENDATION: That Council adopt the Resolution finding that bidding is
impractical and award Purchasing Agreement to People's Chevrolet of Chula Vista for
$48,605.55 for the purchase ofthree pickup trucks.
BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable.
DISCUSSION: Approval was given during the budget review for the Building and
Housing Department to purchase two intennediate pickup trucks for existing positions that were
reinstated from previous budget reductions. The vehicles that had been assigned to these
positions had been removed from the fleet, but the replacement funds collected for replacement
remained in the fund. One of the reinstated positions is funded by Block Grants. Additionally,
two Public Works Inspector positions were authorized to be filled at different times during
FY97-98. One was filled in time for the pickup truck associated with the position to be ordered
with the March 3 bid, the other has just been authorized to be filled. The vehicle associated with
the position must be ordered now to be available for the Inspector. People's Chevrolet, the local
vendor that was awarded the purchase agreement for identical pickup trucks, has agreed to the
same price, tenns, and conditions as the previous award.
ALTERNATIVE FUEL: Alternative fueled vehicles were not offered by any of the
vendors.
9-/
Page 2, Item__-
Meeting Date 06/02/98
FISCAL IMPACT: Sufficient funds are available for the purchase. Block grant funds totaling
$16,201.85 have been identified for equipment and $16,201.85 is available from purchase
savings in the FY 1997-98 Equipment Replacement program for the two Building and Housing
positions; and $16,201.85 was appropriated into and is available from account 100-1423-5565
for the Public Works Inspector vehicle.
ATTACHMENT
. AGENDA STATEMENT FROM COUNCIL MEETING OF MARCH 3,1998
D:\WINWORDIBUDGET\A113 for three additionat Pickups FY97-98.doc
'l~~
RESOLUTION NO. 19¿J2.;J
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING THE BIDDING PROCESS AS
IMPRACTICAL AND AWARDING PURCHASING AGREEMENTS
FOR THE PURCHASE OF THREE PICKUP TRUCKS
WHEREAS, at the City Council meeting of March 3, 1998,
the City Council accepted bids and awarded Purchasing Agreements
for the purchase of fourteen pickup trucks to three vendors; and
WHEREAS, staff has found that it is now necessary to
purchase three additional pickup trucks; and
WHEREAS, section 2.56.070 of the Municipal Code requires
that formal bids be obtained for purchases in excess of $25,000
unless Council finds that obtaining bids is impractical; and
WHEREAS, since the vendor has agreed to the terms and
conditions offered in the bid awarded on March 3, 1998, staff
believes that it is impractical to spend the staff time and expense
to rebind these three trucks; and
WHEREAS, in addition, due to manufacturer production
cutoffs, the time required for formal bidding is not available.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby find in accordance with section
2.56.070 of the Chula vista Municipal Code that the bidding process
is impractical and hereby awards Purchasing Agreements to people's
Chevrolet of Chula vista for $48,605.55 for the purchase of three
pickup trucks.
Presented by Approved as to form by
John P. Lippitt, Director of
Public Works
C:\rs\pickup.bid
9'3
1,
COUNCIL AGENDA STATEMENT ItJi
Meeting 03/03/98
ITEM TITLE: Resolution Accepting bids and awarding Purchasing
Agreements for the purchase of fourteen pickup trucks.
SUBMITTED BY: DirectorofPublicworksØ r
Director of Finance fr'
REVIEWED BY: City Manager (4/5ths Vote: Yes_No...xJ
On January 24, 1998, an advertisement was placed in The Star News soliciting bids for the
proposed City purchase of 14 pickup trucks. In addition, twenty-four prospective bidders from
the Purchasing Agent's bid list, including two local vendors, were contacted directly. On
February 10, 1998, bids were opened for the purchase of these trucks. Twelve bidders
responded. Two of the responsive bidders were local dealerships.
RECOMMENDATION: That Council award Purchasing Agreement to People's Chevrolet
ofChula Vista for $197,689.59 for the purchase of eleven pickup trucks; to Fuller Ford ofChula
Vista for $18,130.02 for the purchase of one pickup truck; and to Del Arno Dodge of Torrance
for $37,726.51 for the purchase of two pickup trucks.
BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable
DISCUSSION: The FY 1997-98 Equipment Replacement Program provides for
the replacement of fourteen pickup trucks of various sizes. The tabulation of the lowest bidders
by item is attached. The lowest bidder for each of the seven types of trucks is shown in bold.
Two local dealerships, People's Chevrolet and Fuller Ford, were the lowest responsive bidders
for twelve of the fourteen trucks. Del Arno Dodge of Torrance was the lowest bidder for the
remaining two trucks, based on the tenns offered. Staff will have the entire bid tabulation
including the unsuccessful bidders available at the City Council meeting. In addition, the
tabulation is available for examination in the office of the Purchasing Agent.
ALTERNATIVE FUEL: Alternative fueled vehicles were not offered by any of the
vendors.
FISCAL IMP ACT: Sufficient funds ($255,400.00) are provided in the FY 97-98 Equipment
Replacement budget for the purchase of these vehicles. The net total cost including 7.75% sales
tax is $253,546.12.
- \...~
9-i ,4 íí/J (! /I #' E.v r
¡'¡¡Go?: /
Page 2, IteDl..._-
Meeting Date 03/03/98
Description PEOPLE'S FULLER FORD" DEL AMO DODGE'
CHEVROLET -
4 Standard cab $13,686.68 each, $14,353.00 each $14,401.00 each
intermediate size $58,989.59 Net Total
pickup trucks {$58,442.12 with 1%
sales tax return)
4 Extended-cab $15,036.52 each, $15,749.00 each $15,868.00 each
intermediate pickup 64,807.40 Net Total
trucks ($64,205.94 with 1%
sales tax return)
2 Crew-cab full size $21,624.20 each, $23,497.00 each $23,103.00 each
pickup trucks $46,600.15 Net Total
{$46,167.67 with 1%
sales tax retum\
1 Full-size pickup $25,329.42 each, $26,157.00 each NO BID
truck with a service $27,292.45 Net Total
body ($27,039.16 with 1%
sales tax return)
1 4X4 Extended - $17,919.50 each, $16,826.00 each, $17,537.00 each
cab intermediate $19,308.26 Net Total $18,130.02 Net Total
size pickup truck ($19,129.07 with 1% ($17,961.76 with 1%
sales tax return) sales tax return)
1 Extended-cab $16,421.52 each, $16,874.00 each, $16,527,00 each
intermediate size $17,694.19 Net Total $18,181.74 Net Total {$16,027,OO with
pickup truck with a ($17,529.97 with 1% ($18,013.00 with 1% terms), $17,269.09
bed cover sales tax return) sales tax return) NetTotal
1 Full Size Pickup $18,253.40 each $18,507.00 each $18,486.00 -- each
Truck ($19,485.50 Net ($19,756.22 Net ($'17,986.00 with
Total with 1% sales Total with 1% sales terms), $19,379.92
tax return) tax return) NetTotal
GRAND TOTAL OF $197,689.59 $18,130.02 $37,726.51,
AWARD $36,726.51 with
terms
. TERMS $500 16 DAYS
.. TERMS NET 30
... TERMS NET 20
D:\WlNWORDIBUDGE1\A1l3 PICKUPS FY97-98.doc
FiI.#: 1320-50-DC
/JíT19t:/t#õV/
9-3 ,,¡J/1~¿;:2.
-- ------------------------------------_.--_._------_._----~------
COUNCIL AGENDA STATEMENT
Item /0
-
Meeting Date~
ITEM TITLE: Resolution /9 t) .2. ipprOVing a Reimbursement Agreement between the
City of Chula Vista and McMillin - D.A. America Otay Ranch LLC for all
initial consulting and administrative cost and expenses associated with forming
a Community Facilities District for financing the construction or acquisition of
certain improvements serving the McMillin Otay Ranch project, waiving
consultant selection process and guidelines for the selection of Brown, Diven,
Hessle & Brewer as Bond Counsel, and approving agreements with Fieldman,
Rolapp & Associates, David Taussig & Associates, and Brown, Diven, Hessle
& Brewer for services associated with said district and authorizing the Mayor
to execute said agreements~
SUBMITTED BY: Director of Public Works ~
REVIEWED BY: City ManageíJ)K ~ /'? 1 (4/5ths Vote: Yes_NoX)
McMillin - D.A. America Otay Ranch LLC has requested the City to initiate proceedings to form a
Community Facilities District (CFD) for the acquisition or construction of public facilities associated
with the McMillin Otay Ranch project. The first action is selecting a consultant team which will
provide assistance to the City during the proceedings. The Financial Advisor and Special Tax
Consultant were selected through a Request for Proposals process. Staff recommends retaining
Fieldman, Rolapp & Associates as Financial Advisor and David Taussig & Associates as Special Tax
Consultant. Staff also recommends waiving the consultant selection process and guidelines for the
selection of Brown, Diyen, Hessle & Brewer as Bond Counsel. The developer has already signed a
Reimbursement Agreement providing for the advance of funds to pay for all initial consulting and City
administration expenses related to the formation of said district, subject to reimbursement from bond
proceeds.
RECOMMENDATION: That Council approve the proposed resolution
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable,
DISCUSSION:
On January 13, 1998, Council adopted the "City of Chula Vista statement of goals and policies
regarding the establishment of Community Facilities Districts". The purpose of this document is
to provide guidelines for the use of CFDs for financing the construction or acquisition of public
infrastructure or the provision of authorized public services to benefit and serve existing or new
development in the City. This document requires that prior to Council initiating any formal
proceedings for formation of the CFD, developer shall submit an "application", which would
include all the necessary information (business plan, percent of ownership requesting the CFD,
etc.) demonstrating the applicant's fmancial ability to carry the project, including the payment of
special taxes during buildout. Per Council Policy, the application was submitted on April 29,
1998 and currently is being reviewed by a committee composed of the City Manager, City
Attorney, Director of Public Works, City Engineer, Planning Director, and Finance Director.
/¡fl--- /
Page 2, Item-
Meeting Date~
The committee has prepared its report with fmdings and recommendations in a companion agenda
item.
Normally, consultants would be hired first and then participate in the review of the application.
In this case, with the purpose of expediting the CFO proceedings to meet their development schedule,
McMillin asked for an early participation of the consultants for the review of the application. The
consultants have submitted letters acknowledging that, in the event the agreements are not
approved, they would not pursue any monetary compensation from the City.
Community Facilities Districts would provide the necessary funding for the construction or acquisition
of public improvements from the proceeds of bonds which are repaid from "special taxes" collected
from the property owners in conjunction with the property taxes. There is no direct cost to the City.
All expenses related to the district administration (including levying and collecting the special taxes)
are funded by the district, This is an acquisition district wherein the developer is constructing the
public improvements and the City will acquire them upon completion with funds derived from the sale
of bonds. City policy establishes that only "backbone" facilities, providing benefit to the entire
property within the district, are eligible for CFO financing. The developer is responsible for fmancing
the construction of local subdivision improvements.
Exhibit I presents the boundaries of the proposed CFO which includes all parcels located within the
Otay Ranch McMillin SPA One (total acreage =290). At buildout, the district would contain a total
of 538 Single Family Residences, 160 Attached Residences, 776 Multifamily Residences, 3 Acres of
commercial and 5 Acres for Community Purpose Facilities (churches, day care, etc.). McMillin is
proposing CFO financing of the following improvements:
. La Media Road, from Telegraph Canyon Road to Olympic Parkway.
. East Palomar Street, within the subdivision boundaries
. Olympic Parkway, within the subdivision boundaries
. Santa Cora Avenue in its entirety
. The pedestrian bridge over La Media Road
. All public parks associated with the project (P6, P7, P9)
The location of these improvements is presented in Exhibit 1.
Bonds are proposed to be issued pursuant to the Improvement Bond Act of 1915. A total of$10,432,855
is proposed to be taxed to the district. $8,241,955 will provide for the construction of the proposed
backbone facilities (grading, landscaping, street, utilities, drainage, sewer, potable water, and reclaimed
water). The remaining $2,190,900 will be used to fund a reserve fund and pay district formation and
bond issuance costs. The final tax amount is subject to the results of a new appraisal to be conducted
on the property and to comply with the "4:1 value to lien" and the "2% maximum tax" criteria
established by Council. The final special taxes and associated financial indicators will be determined
concurrently with the Special Tax Report which is planned to be submitted for Council consideration
during September 1998.
/¿J~ 2
Page 3, Item-
Meeting Date...6LZL28
Consultant Selection
The Request for Proposals (RFP) was sent out on September 7,1997 for both the Financial Advisor and
the Special Tax Consultant. The City Manager appointed the following selection committees to review
and rank the proposals:
Financial Consultant
Robert Powell Finance Director
Muna Cuthbert Civil Engineer
Lombardo Detrinidad Civil Engineer
Special Tax Consultant
Richard Rosaler Principal Planner
Muna Cuthbert Civil Engineer
Lombardo Detrinidad Civil Engineer
After receiving the proposals, the committee proceeded with the evaluation process in strict
confonnance with the procedures established by the Municipal Code and guidelines for the selection of
consultants. The committee reviewed the proposals, conducted interviews, contacted references, and
ranked the consultants as follows:
Table 1.
Consultants Ranking
Financial Advisor Special Tax Consultant
Name Cost Proposal Score Name Cost Proposal Score
($) ($)
Fieldman, Rolapp 41,500' 92 David Taussig. 39,200 88
Evensen Dodge 47,500 84 Dick Jacobs 34,900 85
Project Finance 65,000 82 Berryman & Henigar 21,200 82
Public Financial 45,000' 79 Muni Financial 45,600 77
Willdan Associates 38,000 70
Financial Advisor
The Financial Advisor will analyze the financial feasibility of the project, and will make sure that all
City's financial criteria are met, They will also provide assistance to the City in structuring the
1 $52,000 if a competitive bond sale.
2 $40,000 if a competitive bond sale.
1t)~:J
,
Page 4, Item-
Meeting Date~
financing and marketing the bonds. The proposed agreement includes provisions that allow the City to
proceed with either a competitive bid or negotiated sale. Staff will bring to Council, in a timely manner,
a recommendation on the preferred marketing alternative. The consultant responsibilities also include
the coordination of activities of the consultant team. The proposed agreement also provides that
subconsultants (i.e., appraiser, special disclosure counsel, and absorption consultant) may be employed
by the Financial Advisor, subject to the prior approval of the City Engineer and Finance Director, both
as to selection and compensation.
The proposed Financial Advisor's fee is $44,500 for negotiated sale and $ 55,000 for a competitive sale.
The proposed fee for "coordination" is included within these fees. In addition, the consultant will also
be compensated for the cost of hiring the appraiser (not to exceed $30,000), the special disclosure
counsel (not to exceed $30,000) and the absorption consultant (not to exceed $17,500). Staff has
reviewed the cost proposal and considers it reasonable and recommends Council approval. Prior to
hiring any subconsultant the developer will deposit with the City an amount equal to the fee charged by
said subconsultant. If approved by Council this will be the first contract of Fieldman, Rolapp &
Associates with the City.
Special Tax Consultant
The special tax consultant spreads the cost of facilities over the McMillin Property by generating the
"Rate and Method" ofthe special tax levy. The consultant also provides a boundary map, mails and
tabulates the ballot, and certifies the adequacy of the special taxes to meet the debt service for the bond
tssue.
The selection committee recommends retaining David Taussig & Associates as Special Tax Consultant
based on 1) their proven experience and expertise in Community Facilities Districts (over 150 districts
formed), 2) excellent references, and 3) excellent presentation at the interview. It should be noted that
two consultants (Dick Jacobs & Associates and Berryman & Henigar) proposed lower fees than David
Taussig. Dick Jacobs & Associates received a lower ranking because they are a relatively small
company (two persons) and staff was concerned about their capability to provide adequate staffing given
the scope and time constraints of the project. Dick Jacobs & Associates currently has one contract with
the City. Currently, Berryman & Henigar has four contracts with the City. They received a lower
ranking because they have recently missed several deadlines and staff feels that their current workload
may have impacted their ability to provide services in a timely manner.
After the selection committee determined that David Taussig was the most qualified firm, staff became
concerned about their proposal of $39,200 which was higher than the proposal of the next two ranked
firms. Staff met with David Taussig to discuss the scope of the work proposed by the consultant. As
a result of these discussion, the consultant agreed to 1) reduce their fee for the basic scope of work from
$39,200 to $33,700 and 2) reassign the preparation of Facilities Utilization Maps as an optional task.
It is anticipated that the developer's engineer will prepare the maps. The proposed agreement also has
provisions authorizing the City Engineer to approve the following activities that may be required during
the district proceedings: 1) preparation of Facilities Utilization Maps (fee not to exceed $4,500), 2) up
to 80 additional hours of meeting time (fee not to exceed $10,000), and 3) up to 20 additional tax spreads
(fee not to exceed $9,600). Based on staff's recent experience with CFD's for maintenance and the fact
J?J~Y
Page S, Item-
Meeting Date~
that this will be the first CFD for construction, staff believes that at least some of the additional work
will be needed. Staff has reviewed the cost proposal and considers it reasonable and recommends
approval by Council. If approved by Council, this will be the first contract of David Taussig &
Associates with the City.
Bond Counsel
The Bond Counsel will provide the legal services required in the proceedings and will furnish their legal
opinion to the City and the bondholders on the validity of the proceedings and bonds. Staff recommends
waiving its selection process and retaining Brown, Diven, Hessle & Brewer as the bond counsel for the
proposed CFD for the following reasons:
. They have been the bond counsel during the formation of all the existing assessment districts
in the City,
. They are the legal counsel for the formation of the CFDs that will fund the open space districts
for the Otay Ranch SPA One and Preserve.
. They were instrumental in preparing the "City of Chula Vista statement
of goals and policies regarding the establishment of Community Facilities
Districts" in the City ofChula Vista.
. They are proven leaders in the field of municipal finance having formed multiple districts
throughout California.
Section 2.56.070 of the Municipal Code determines that certain services may be excluded from the
formal bidding process when the "...City Council, by resolution, expressed in its official minutes,
determines that competitive bidding is impractical or impossible....". Because of I) the involvement of
Brown, Diven, Hessle & Brewer in the implementation of CFD policies and formation of CFDs in the
Otay Ranch, 2) demonstrated competence and qualifications of the consultant, and 3) their familiarity
with City's requirements, staff believes that they are the best qualified candidate and that it would be
impractical to follow a competitive selection process, This would be the first CFD that the City would
form for financing the construction of public infrastructure and staff does not yet posses the required
expertise and experience. Staff considers that having this consultant on board will facilitate a successful
formation of the district and ensure the soundness of the special taxes, in the event of a legal challenge
by future property owners. Therefore, staff is hereby recommending the waiver of the consultant
selection process stipulated in Section 2.56 of the Municipal Code.
The Bond Counsel will be compensated on a single fee basis (approximately $43,000) to be calculated
as a percentage of the total confirmed assessment. The same percentage has been used in previous
contracts with the City. Currently, Brown, Diven, Hessle & Brewer has three Contracts with the City
to provide legal services for a total amount of $64,000.
The consultants have already signed their respectiye agreements to do the work outlined. These
agreements follow the City's standard two-party agreement. Staff has reyiewed them and recommends
approval by Council. The City Attorney has also reviewed the agreements and approved them as to
form.
/¿J~y
Page 6, Item-
Meeting Date~
Approval of the Reimbursement Agreement between the City and the developer will require the
developer to advance the funds to form the district and for the repayment to the developer from bond
proceeds upon successful formation of the district.
Future Actions
* The report on the findings and recommendations regarding the application would be before
Council during June 1998.
* The Resolution of Intention to Form the District, is anticipated to occur in August 1998 with
a Public Hearing forming the District in September of this year.
* Bond Sale is anticipated for the fourth quarter of 1998
FISCAL IMPACT: None, the developer will pay all costs and has deposited money to fund initial
consultant costs, City costs, and appraisal costs in accordance with the proposed Reimbursement
Agreement. The City will receive the benefit of the full cost recovery for City staff (estimated at
$45,000).
In accordance with City Policy, the deyeloper is also require to pay a monetary compensation of 1 %
of the bond authorization amount as consideration for the City's agreement to use the City's
bonding capacity to provide the fmancing mechanism for the fmancing of the construction and/or
acquisition of the authorized improvements, Payment would be required prior to the issuance of
bonds. The proposed policy also declares that such monetary compensation shall be born by the
developer and shall not be fInanced out of the district bond proceeds. The monetary compensation
for the proposed CPD is estimated at about $100,000.
Exhibits: I. Map of the proposed District improvements
H,IHOMEIENGlNEERIASMTDIST\AD9703 _3.LOT
May 27,1998 (1 t:5tam)
J(/'--~
RESOLUTION NO. / 9 ~~ '/
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A REIMBURSEMENT
AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND
MCMILLIN - D.A. AMERICA OTAY RANCH LLC FOR ALL
INITIAL CONSULTING AND ADMINISTRATIVE COST AND
EXPENSES ASSOCIATED WITH FORMING A COMMUNITY
FACILITIES DISTRICT FOR FINANCING THE
CONSTRUCTION OR ACQUISITION OF CERTAIN
IMPROVEMENTS SERVING THE MCMILLIN OTAY RANCH
PROJECT, WAIVING CONSULTANT SELECTION PROCESS
AND GUIDELINES FOR THE SELECTION OF BROWN,
DIVEN, HESSLE & BREWER AS BOND COUNSEL, AND
APPROVING AGREEMENTS WITH FIELDMAN, ROLAPP &
ASSOCIATES, DAVID TAUSSIG & ASSOCIATES, AND
BROWN, DIVEN, HESSLE & BREWER FOR SERVICES
ASSOCIATED WITH SAID DISTRICT AND AUTHORIZING
THE MAYOR TO EXECUTE SAID AGREEMENTS
WHEREAS, McMillin - D.A. America Otay Ranch LLC has
requested the City to initiate proceedings to form a Community
Facilities District (CFD) for the acquisition or construction of
public facilities associated with the McMillin Otay Ranch project;
and
WHEREAS, it is necessary to select a consultant team
which will provide assistance to the city during the proceedings;
and
WHEREAS, the Financial Advisor and Special Tax Consultant
were selected through a Request for Proposals process and
Fieldman, Rolapp & Associates as Financial Advisor and David
Taussig & Associates as Special Tax Consultant were ranked the
highest among the respective applicants by the Selection Committee;
and
WHEREAS, due to Brown, Diven, Hessle & Brewer's
involvement in the implementation of CFD policies and formation of
CFDs in the Otay Ranch, their demonstrated competence and
qualifications and their familiarity with City's requirements,
staff believes that they are the best qualified candidate and
recommends waiving the consultation selection process in that it
would be impractical to follow a competitive selection process; and
WHEREAS, the developer has already signed a Reimbursement
Agreement providing for the advance of funds to pay for all initial
consulting and City administration expenses related to the
formation of said district, subject to reimbursement from bond
proceeds.
1
/,ç- 7
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula Vista does hereby approve a Reimbursement Agreement
between the City of Chula vista and McMillin - D.A. America Otay
Ranch LLC for all initial consulting and administrative cost and
expenses associated with forming a Community Facilities District
for financing the construction or acquisition of certain
improvements serving the McMillin Otay Ranch project a copy of
which shall be kept on file in the office of the City Clerk as
Document No.~.
BE IT FURTHER RESOLVED that the city Council does hereby
find in accordance with section 2.56.070 of the Chula vista
Municipal Code that the bidding process is impractical and waives
the consultant selection process and guidelines for the selection
of Brown, Diven, Hessle & Brewer as Bond Counsel and does approve
an Agreement with Brown, Diven, Hessle & Brewer for legal services
for the formation of a Community Facilities District and the sale
of bonds, a copy of which shall be kept on file in the office of
the City Clerk as Document Noß~.
BE IT FURTHER RESOLVED that the city Council does hereby
approve an agreement with Fieldman, Rolapp & Associates for
financial advisory services for the formation of a Community
Facilities District and the sale of bonds, a copy of which shall be
kept on file in the office of the City Clerk as Document Not!~O 87
BE IT FURTHER RESOLVED that the city Council does hereby
approve an agreement with David Taussig & Associates for Community
Facilities District Assessment Engineering Services, a copy of
which shall be kept on file in the office of the City Clerk as
Document No~f/J
BE IT FURTHER RESOLVED that the Mayor is hereby
authorized and directed to execute said agreements for and on
behalf of the city of Chula vista.
Presented by Approved as to form by
~~~~
John P. Lippitt, Director of John M. Kaheny, city Attorney
Public Works
C:\r8\otay.cfd
2
JcJ'Y
Exhibit 1
.' Benefit Area and Location of Improvements
McMillin {Otay Ranch
SPA I
Villages 1 & 5
CFD Public Improvement Projects
Legend
@ Project
Number
/0-9
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(109f?-¿:í?S--
R 19ð?<J
COMMUNITY FAClllTIES DISTRICT REIMBURSEMENT AGREEMENT
THIS AGREEMENT is made and entered into this - day of , 1998, by and between the
CITY OF CHULA VISTA, a municipal corporation (hereinafter referred to as "City"), and McMillin - DA
America Otay Ranch L.L.C., a Delaware limited liability company (hereinafter referred to as "Company").
RECITALS
A. Company has asked the City to initiate proceedings under the provisions of the "Mello-Roos Community
Facilities Act of 1982," as amended, (Government Code Section 53311 and following), to form a
community facilities district (the "Community Facilities District") to finance the acquisition or construction
of certain public improvements.
B. Company has agreed to advance funds to the City for the payment of all initial consulting and
administration costs and expenses related to the proceedings to consider the formation of the Community
Facilities District and to subsequently authorize, issue and sell bonds for the Community Facilities District
(the "Proceedings"). Such monies shall be subject to reimbursement or credit pursuant to the provisions
of this Agreement upon the successful sale of bonds for the Community Facilities District and the receipt
by the City of the proceeds of such bonds.
C. The parties hereto wish to enter into an Agreement to provide for the advance of monies and
reimbursement or credit for monies so advanced,
AGREEMENT
The parties hereto, for mutual consideration, agree as follows:
SECTION 1. Advances. Company shall advance monies to the City in such amounts and at such times as
specified below to pay all costs and expenses incurred by the City in undertaking the Proceedings, including
without limitation, the following:
A. Special Tax Consultant services;
B. Bond counsel services;
C. Financial advisory services;
D. Appraisal and market absorption services; and
E. City staff and City Attorney time.
All such costs and expenses are collectively referred to as the "Formation and Issuance Costs. "
Advances shall be made to the City pursuant to the following schedule:
1
/?J --/0
A. Within five (5) working days of the date of execution of this agreement by the parties hereto,
Company shall advance the amount of $45,500.
B. If monies in addition to the initial advance are necessary to pay for the Formation and Issuance
Costs, the City shall as necessary and from time to time make written demand upon Company and
Company shall immediarely thereafter, within five (5) working days, deposit said monies with the
City to pay for the balance of the Formation and Issuance Costs. If such additional monies are not
timely received, all Proceedings shall be suspended until such monies are received,
SECTION 2. Records. The City agrees to keep records consistent with its regular accounting practices of the
amount of monies advanced and the expenditure of such monies, Additionally, the City shall enter into and
maintain contracts with all consultants which shall specify the scope of services and compensation to be paid to
all such consultants. Such records and contracts shall be ayailable for review by the Company during normal
business hours upon reasonable notice to the City.
SECTION 3. Reimbursement. If the Community Facilities District is formed, Company may elect "among the
following options for the reimbursement of monies advanced pursuant to this Agreement:
A. All monies advanced shall be reimbursed in cash solely from bond proceeds;
B. All monies advanced shall be applied as a credit upon the special taxes to be levied against
properties owned by the Company;
C. A combination of the above,
If the Proceedings to form the Community Facilities District are not completed and are abandoned for any
reason at any time prior to the successful sale of bonds or the City is unable for any reason to issue or sell the
bonds, there will be no obligation on the part of the City to reimburse Company for any monies previously
advanced pursuant to this Agreement; provided, however, the City does agree to return to Company any monies
previously advanced which remain on deposit with the City and which the City determines are in excess of the
amount necessary to pay for any outstanding Formation and Issuance Costs previously incurred by the City,
SECTION 4. Ownership or Documents, All plans, specifications, reports, appraisals and other documentation
as prepared as a part of the Proceedings shall become the property of the City, regardless as to whether the
Community Facilities District is actually formed.
SECTION 5. No Obligation to Form Community Facilities District. Company acknowledges that the decision
of the City Council to form the Community Facilities District is an exercise of the legislative authority of the City
Council and that the City may not enter into a contract to obligate the City Council to exercise its legislative
discretion in a particular manner. This Agreement does not, therefore, in any way create a contractual, legal or
equitable obligation of or commitment by the City to approve the formation of the Community Facilities District.
The City expressly reserves the right to abandon the Proceedings for any reason at any time prior to the completion
thereof. Should Company desire to abandon the Proceedings, Company shall provide written notification of such
desire to the City and request the City to immediately terminate all consulting agreements and use all efforts to
minimize any and all Formation and Issuance Costs,
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SECTION 6. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
SECTION 7, Arbitration. Any controversy arising out of this Agreement or its breach shall be settled by
arbitration if, prior to the commencement of any legal proceeding arising out of this Agreement or its breach,
either party demands by written notice that such controversy be arbitrated. After such demand, and wiÍhin ten (10)
days from such demand, the parties shall attempt to designate a mutually acceptable individual to arbitrate the
controversy. If within the ten (10) day period the parties are unable to designate an individual, the controversy
shall be arbitrated under the rules of the American Arbitration Association, and judgment on the award rendered
by the arbitrator chosen by the parties or used pursuant to the rules of the American Arbitration Association may
be entered in any court having jurisdiction and shall be fully binding on the parties,
SECTION 8. Authority to Execute Agreement. The City and the Company represent that the individuals
signing this Agreement have full right and authority to bind their respective parties to this Agreement.
SECTION 9 Best Efforts. The parties promise to use their best efforts to satisfy all conditions to this
Agreement and to take all further steps and execute all further documents reasonably necessary to put this
Agreement into effect.
SECTION 10. Successor and Assigns. This Agreement shall be binding on and inure to the benefit of the
respective parties and their respective heirs, legal representatives, successors and assigns. Company may not assign
its rights or obligations hereunder except upon written notice to City within ten (10) days of the date of such
assignment indicating the name and address of the assignee. Upon such notice and the assumption by the assignee
in writing delivered to the City of the rights, duties and obligations of the Company arising under or from this
Agreement, Company shall be released for all future duties or obligations arising under or from this Agreement.
SECTION 11. Singular and Plural; Gender. Wheneyer used herein, the singular number shall include the plural,
the plural number shall include the singular, and the masculine feminine or neuter gender shall include the others
whenever the context of the Agreement so indicates.
SECTION 12. Entire Agreement. This Agreement contains the entire Agreement between the parties hereto with
respect to the subject matter hereof, This Agreement may not be altered, modified or amended except by an
instrument in writing executed by all of the parties.
SECTION 13. Governing Law. This Agreement has been executed in and shall be governed by the laws of the
State of California,
SECTION 14. Construction. This Agreement shall be construed as a whole and in accordance with its fair
meaning. Captions and organizations are for convenience and shall not be used in construing meaning,
SECTION 15. Severabiüty, If any term, covenant, condition or provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable the remainder of the provision thereof shall remain
in full force and effect and shall in no way be affected, impaired or invalidated thereby,
SECTION 16, Notiœs. All notices and demands shall be given in writing by personal delivery or first-class mail,
postage prepaid, Notices shall be addressed as appears below for the respective party; provided that, if any party
gives notice of a change of name of address, notices to the giver of that notice shall thereafter be given as
3
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demanded in that notice. Notices shall be deemed received seventy-two (72) hours after deposit in the United
States mail.
CITY: CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
Company: McMillin - DA America Otay Ranch L.L.C.
c/o McMillin Communities, Inc.
2727 Hoover Avenue
National City, CA 91950
Attention: MS, C,... E;\h..tt-
With Copy To: Hewitt & McGuire, LLP
19900 MacArthur Boulevard
Suite 1050
Irvine, CA 92612
Attention: John P. Yeager
SECTION 17. Tune of the &sence. Time is of the essence in the performance of the parties respective
obligations herein contained.
SECTION 18. WaiVel", The waiver by one party of the performance of any covenant, condition or promise shall
not invalidate this Agreement, nor shall it be considered a waiver by him of any other covenant, condition or
promise. The waiver by either or both parties of the time for performing any act shall not constitute a waiver of
the time for performing any other act or an identical act required to be performed at a later time. The exercise
of any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law, and
any provision of this Agreement for any remedy shall not exclude other consistent remedies unless they are
expressly excluded.
SECTION 19. Amendment. No provision of this Agreement may be modified, waived, amended or added to
except by a writing signed by the party against which the enforcement of such modification, waiver, amendment
or addition is or may be sought.
SECTION 20. Hold Harmless. Company shall defend, indemnify, protect and hold harmless the City, its elected
officials and appointed officers, employees and agents, from and against all claims for damages, liability, cost and
expense [mcluding without limitation attorneys' fees) arising directly or indirectly out of the waiver by the City
Council of the City's procedures for the selection of any of the consultants identified in Section 1. and retained
by the City to assist in undertaking the Proceedings. Company's indemnification shall include any and all costs,
expenses, attorneys' fees and liability incurred by the City, its officers, agents, or employees in defending against
such claims, whether the same proceed to judgment or not. Further, Company at its own expense shall, upon
written request by the City, defend any such suit or action brought against the City, its officers, agents or
employees. Company's indemnification of City shall not be limited by any prior or subsequent declaration by the
consultant.
4
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Signature Page
to
Community Facilities District Reimbursement Agreement
between
the City of Chula Vista
and
McMillin - D.A. America Otay Ranch LLc.
IN WITNESS WHEREOF, City and Company have executed this Agreement thereby indicating that they have read
and understood same, and indicate their full and complete consent to its terms.
Dated: , 19- CITY OF CHULA VISTA
By:
Shirley Honon, Mayor
Attest:
Beverly Authelet, City Clerk
Approved as to Form:
~ YvL ~ McMillin - D.A. America Otay Ranch LLC.,
"7r~ a Delaware limited liability company
John M. Kaheny, City Attorn y
City of Chula Vista
By: Member
By:
Its:
~'þJ ~
By:?i r¿-1-/(
Its: ËI.IOT M, ALPORf,
GonsultllTl
5
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K (9{):JJ!
Parties and Recital Page(s)
Agreement between
City of Chula Vista
and
Brown, Diven, Hessell & Brewer
for legal services for the formation of a Community Facilities
District and the sale of bonds
This agreement ("Agreement"), dated June 2, 1998 for the
purposes of reference only, and effective as of the date last
executed unless another date is otherwise specified in Exhibit A,
Paragraph 1 is between the City-related entity as is indicated on
Exhibit A, paragraph 2, as such ("City"), whose business form is
set forth on Exhibit A, paragraph 3, and the entity indicated on
the attached Exhibit A, paragraph 4, as Consultant, whose business
. form is set forth on Exhibit A, paragraph 5, and whose place of
business and telephone numbers are set forth on Exhibit A,
paragraph 6 ("Consultant"), and is made with reference to the
following facts:
Recitals
Whereas, The McMillin Otay Ranch Project is desirous of
financing certain public improvements through a Community
Facilities District; and,
Whereas, the City lacks the legal expertise necessary to
form the Community Services District and to sell the bonds; and,
Whereas, Consultant warrants and represents that they are
experienced and staffed in a manner such that they are and can
prepare and deliver the services required of Consultant to City
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within the time frames herein provided all in accordance with the
terms and conditions of this Agreement;
(End of Recitals. Next Page starts Obligatory Provisions,)
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July 1, 1997 Page 2
It} -It
Obligatory Provisions Pages
NOW, T":J:EREFORE, BE IT RESOLVED that the City and Consultant
do hereby mutually agree as follows:
1. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on
the attached Exhibit A, Paragraph 7, entitled "General Duties";
and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General
Duties", Consultant shall also perform all of the services
described in Exhibit A, Paragraph 8, entitled" Scope of Work and
Schedule", not inconsistent with the General Duties, according
to, and within the time frames set forth in Exhibit A, Paragraph
8, and deliver to City such Deliverables as are identified in
Exhibit A, Paragraph 8, within the time frames set forth therein,
time being of the essence of this agreement. The General Duties
and the work and deliverables required in the Scope of Work and
.Schedule shall be herein referred to as the "Defined Services",
Failure to complete the Defined Services by the times indicated
does not, except at the option of the City, operate to terminate
this Agreement,
C. Reductions in Scope of Work
City may independently, or upon request from Consultant,
from time to time reduce the Defined Services to be performed by
the Consultant under this Agreement. Upon doing so, City and
Consultant agree to meet in good faith and confer for the purpose
of negotiating a corresponding reduction in the compensation
associated with said reduction.
D. Additional Services
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In addition to performing the Defined Services herein set
forth, City may require Consultant to perform additional
consulting services related to the Defined Services ("Additional
Services"), and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform
same on a time and materials basis at the rates set forth in the
"Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate
fixed fee is otherwise agreed upon. All compensation for
Additional Services shall be paid monthly as billed,
E. Standard of Care
Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services, shall perform in
a manner consistent with that level of care and skill ordinarily
exercised by members of the profession currently practicing under
similar conditions and in similar locations.
F. Insurance
Consultant represents that it and its agents, staff and
subconsultants employed by it in connection with the Services
required to be rendered, are protected against the risk of loss
by the following insurance coverages, in the following categor-
ies, and to the limits specified, policies of which are issued by
Insurance Companies that have a Best's Rating of "A, Class V" or
better, or shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's
Liability Insurance coverage in the amount set forth in the
attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business
Automobile Insurance coverage in the amount set forth in Exhibit
A, Paragraph 9, combined single limit applied separately to each
project away from premises owned or rented by Consultant, which
names City and Applicant as an Additional Insured, and which is
primary to any policy which the City may otherwise carry
( "Primary Coverage"), and which treats the employees of the City
and Applicant in the same manner as members of the general public
("Cross-liability Coverage").
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Errors and Omissions insurance, in the amount set forth in
Exhibit A, Paragraph 9, unless Errors and Omissions coverage is
included in the General Liability policy.
G. Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein
required, prior to the commencement of services required under
this Agreement, by delivery of Certificates of Insurance
demonstrating same, and further indicating that the policies may
not be canceled without at least thirty (30) days written notice
to the Additional Insured.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured
Coverage, Primary Coverage and Cross-liability Coverage required
under Consultant's Commercial General Liability Insurance Policy,
Consultant shall deliver a policy endorsement to the City
demonstrating same, which shall be reviewed and approved by the
Risk Manager.
H. Securitv for Performance.
(1) Performance Bond.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Performance Bond (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Performance Bond"), then Consultant
shall provide to the City a performance bond by a surety and in a
form and amount satisfactory to the Risk Manager or City
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Attorneyl which amount is indicated in the space adjacent to the
term, "Performance Bond", in said Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Letter of Credit (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Letter of Credit"), then Consultant
shall provide to the City an irrevocable letter of credit
callable by the City at their unfettered discretion by submitting
to the bank a letter, signed by the City Manager, stating that
the Consultant is in breach of the terms of this Agreement. The
letter of credit shall be issued by a bank, and be in a form and
amount satisfactory to the Risk Manager or City Attorney which
amount is indicated in the space adjacent to the term, "Letter of
Credit", in said Paragraph 19, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide security other than a
Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph
entitled "Other Security"), then Consultant shall provide to the
City such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney.
1. Business License
Consultant agrees to obtain a business license from the City
and to otherwise comply with Title 5 of the Chula Vista Municipal
Code.
1. The City Attorney's Office prefers that you obtain approval
of the surety or bank, the form of the security and the amount of
the security from the Risk Manager in the first instance and not
the City Attorney. The City Attorney's office would be available
on such risk issues as an alternate only if the Risk Manager is
unavailable and the matter can't wait,
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July 1, 1997 Page 6
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2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule
therein contained, and to provide direction and guidance to
achieve the objectives of this agreement. The City shall permit
access to its office facilities, files and records by Consultant
throughout the term of the agreement. In addition thereto, City
agrees to provide the information, data, items and materials set
forth on Exhibit A, Paragraph 10, and with the further
understanding that delay in the provision of these materials
beyond 30 days after authorization to proceed, shall. constitute a
basis for the justifiable delay in the Consultant's performance
of this agreement,
B. Compensation
Upon receipt of a properly prepared billing from Consultant
submitted to the City periodically as indicated in Exhibit A,
Paragraph 18, but in no event more frequently than monthly, on
the day of the period indicated in Exhibit A, Paragraph 18, City
shall compensate Consultant for all services rendered by Consult-
ant according to the terms and conditions set forth in Exhibit A,
Paragraph 11, adjacent to the governing compensation relationship
indicated by a "checkmark" next to the appropriate arrangement,
subject to the requirements for retention set forth in paragraph
19 of Exhibit A, and shall compensate Consultant for out of
pocket expenses as provided in Exhibit A, Paragraph 12.
All billings submitted by Consultant shall contain
sufficient information as to the propriety of the billing to
permit the City to evaluate that the amount due and payable
thereunder is proper, and shall specifically contain the City's
account number indicated on Exhibit A, Paragraph 18 (C) to be
charged upon making such payment.
3. Administration of Contract
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Each party designates the individuals ("Contract
Administrators") indicated on Exhibit A, Paragraph 13, as said
party's contract administrator who is authorized by said party to
represent them in the routine administration of this agreement.
4, Term,
This Agreement shall terminate when the Parties have
complied with all executory provisions hereof.
5. Liquidated Damages
The provisions of this section apply if a Liquidated Damages
Rate is provided in Exhibit A, Paragraph 14.
It is acknowledged by both parties that time is of the
essence in the completion of this Agreement, It is difficult to
estimate the amount of damages resulting from delay in per-
formance, The parties have used their judgment to arrive at a
reasonable amount to compensate for delay.
Failure to complete the Defined Services within the allotted
time period specified in this Agreement shall result in the
following penalty: For each consecutive calendar day in excess
of the time specified for the completion of the respective work
assignment or Deliverable, the consultant shall pay to the City,
or have withheld from monies due, the sum of Liquidated Damages
Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages
Rate").
Time extensions for delays beyond the consultant's control,
other than delays caused by the City, shall be requested in
writing to the City's Contract Administrator, or designee, prior
to the expiration of the specified time. Extensions of time,
when granted, will be based upon the effect of delays to the work
and will not be granted for delays to minor portions of work
unless it can be shown that such delays did or will delay the
progress of the work.
6. Financial Interests of Consultant
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July 1, 1997 Page 8
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A, Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as
an "FPPC filer", Consultant is deemed to be a "Consultant" for
the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the
City Clerk on the required Statement of Economic Interests in
such reporting categories as are specified in Paragraph 15 of
Exhibit A, or if none are specified, then as determined by the
City Attorney,
B. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to
know Consultant has a financial interest other than the
compensation promised by this Agreement,
C, Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant warrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations
promulgated by the Fair political Practices Commission, and has
determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with
Consultant's duties under this agreement.
D, Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during
the term of this Agreement which would constitute a conflict of
interest as prohibited by the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests.
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 9
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Regaydless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and repyesents that Consultant
will immediately advise the City Attorney of City if Consultant
learns of an economic interest of Consultant's which may result
in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
F, Specific Warranties Against Economic Interests,
Consultant warrants and represents that neither Consultant,
nor Consultant's immediate family members, nor Consultant's
employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in any property
which may be the subject matter of the Defined Services, or in
any property within 2 radial miles from the exterior boundaries
of any property which may be the subject matter of the Defined
Services, ("Prohibited Interest"), other than as listed in
Exhibit A, Paragraph 15.
Consultant further warrants and represents that no promise
of future employment, remuneration, consideration, gratuity or
other reward or gain has been made to Consultant or Consultant
Associates in connection with Consultant's performance of this
Agreement. Consultant promises to advise City of any such
promise that may be made during the Term of this Agreement, or
for 12 months thereafter,
Consultant agrees that Consultant Associates shall not
acquire any such Prohibited Interest within the Term of this
Agreement, or for 12 months after the expiration of this
Agreement, except with the written permission of City.
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City.
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers and
2ptyll,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 10
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employees, from and against all claims for damages, liability,
cost and expense (including without limitation attorneys' fees)
arising out of the conduct of the Consultant, or any agent or
employee, subcontractors, or others in connection with the
execution of the work covered by this Agreement, except only for
those claims arising from the sole negligence or sole willful
misconduct of the City, its officers, or employees. Consultant's
indemnification shall include any and all costs, expenses,
attorneys' fees and liability incurred by the City, its officers,
agents, or employees in defending against such claims, whether
the same proceed to judgment or not. Further, Consultant at its
own expense shall, upon written request by the City, defend any
such suit or action brought against the City, its officers,
agents, or employees. Consultants' indemnification of City shall
not be limited by any prior or subsequent declaration by the
Consultant.
8, Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a
timely and proper manner Consultant's obligations under this
Agreement, or if Consultant shall violate any of the covenants,
agreements or stipulations of this Agreement, City shall have the
right to terminate this Agreement by giving written notice to
consultant of such termination and specifying the effective date
thereof at least five (5) days before the effective date of such
termination. In that event, all finished or unfinished documents,
data, studies, surveys, drawings, maps, reports and other
materials prepared by Consultant shall, at the option of the
City, become the property of the City, and Consultant shall be
entitled to receive just and equitable compensation for any work
satisfactorily completed on such documents and other materials up
to the effective date of Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused City by
Consultant's breach.
9. Errors and Omissions
In the event that the City Administrator determines that the
Consultants' negligence, errors, or omissions in the performance
of work under this Agreement has resulted in expense to City
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July 1, 1997 Page 11
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greater than would have resulted if there were no such
negligence, errors, omissions, Consultant shall reimburse City
for any additional expenses incurred by the City. Nothing herein
is intended to limit City's rights under other provisions of this
agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any
reason, by giving specific written notice to Consultant of such
termination and specifying the effective date thereof, at least
thirty (3D) days before the effective date of such termination.
In that event, all finished and unfinished documents and other
materials described hereinabove shall, at the option of the City,
become City's sole and exclusive property. If the Agreement is
terminated by City as provided in this paragraph, Consultant
shall be entitled to receive just and equitable compensation for
any satisfactory work completed on such documents and other
materials to the effective date of such termination. Consultant
hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth
herein.
11. Assignability
The services of Consultant are personal to the City, and
Consultant shall not assign any interest in this Agreement, and
shall not transfer any interest in the same (whether by
assignment or novation), without prior written consent of City.
City hereby consents to the assignment of the portions of the
Defined Services identified in Exhibit A, Paragraph 17 to the
subconsultants identified thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and
exclusive property of City. No such materials or properties
produced in whole or in part under this Agreement shall be
subject to private use, copyrights or patent rights by Consultant
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July 1, 1997 Page 12
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i~ ~he United States or in any other country without the express
written consent of City. City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions
of the Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports,
studies, data, statistics, forms or other materials or properties
produced under this Agreement.
13. Independent Contractor
City is interested only in the results obtained and
Consultant shall perform as an independent contractor with sole
control of the manner and means of performing the services
required under this Agreement. City maintains the right only.to
reject or accept Consultant's work products. Consultant and any
of the Consultant's agents, employees or representatives are, for
all purposes under this Agreement, an independent contractor and
shall not be deemed to be an employee of City, and none of them
shall be entitled to any benefits to which City employees are
entitled including but not limited to, overtime, retirement
benefits, 'worker's compensation benefits, injury leave or other
leave benefits, Therefore, City will not withhold state or
federal income tax, social security tax or any other payroll tax,
and Consultant shall be solely responsible for the payment of
same and shall hold the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this
agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by
the City in accordance with the procedures set forth in Chapter
1.34 of the Chula Vista Municipal Code, as same may from time to
time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and
procedures used by the City in the implementation of same.
Upon request by City, Consultant shall meet and confer in
good faith with City for the purpose of resolving any dispute
over the terms of this Agreement.
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July 1, 1997 Page 13
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15. Attorney's Fees
Should a dispute arising out of this Agreement result in
litigation, it is agreed that the prevailing party shall be
entitled to recover all reasonable costs incurred in the defense
of the claim, including costs and attorney's fees.
16. Statement of Costs
In the event that Consultant prepares a report or document,
or participates in the preparation of a report or document in
performing the Defined Services, Consultant shall include, or
cause the inclusion of, in said report or document, a statement
of the numbers and cost in dollar amounts of all contracts and
subcontracts relating to the preparation of the report or
document,
17. Miscellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consult-
ant shall have no authority to act as City's agent to bind City
to any contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the
Consultant and/or their principals is/are licensed with the State
of California or some other state as a licensed real estate
broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor their principals are licensed real estate
brokers or salespersons.
C. Notices
All notices, demands or requests provided for or permitted
to be given pursuant to this Agreement must be in writing. 11.11
notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served
or deposited in the United States mail, addressed to such party,
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 14
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postage prepaid, registered or certified, with return receipt
requested, at the addresses identified herein as the places of
business for each of the designated parties.
D. Entire Agreement
This Agreement, together with any other written document
referred to or contemplated herein, embody the entire Agreement
and understanding between the parties relating to the subject
matter hereof. Neither this Agreement nor any provision hereof
may be amended, modified, waived or discharged except by an
instrument in writing executed by the party against which
enforcement of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and
represents to the other party that it has legal authority and
capacity and direction from its principal to enter into this
Agreement, and that all resolutions or other actions have been
taken so as to enable it to enter into this Agreement.
F. Governing Law/Venue
This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action
arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State
of California, and if applicable, the City of Chula Vista, or as
close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
[end of page, next page is signature page.]
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 15
J ¿) /..). 7
Signature Page
to
Ag=eement between City of Chula Vista and Brown, Diven, Hessell &
Brewer
for
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
Dated: , 19 - City of Chula Vista
by:
Shirley Horton, Mayor
Attest:
Beverly Authelet, City Clerk
Approved as to form:
John M. Kaheny, City Attorney
Dated: Brown, Diven, Hessell & Brewer
By: Lc.hl~U't€.'^-
Warren Diven, Principal
Exhibit List to Agreement
(X) Exhibit A.
(X) Exhibit B.
2pty11. wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 16
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Exhibit A
to
Agreement between
City of Chula Vista
and
Brown, Diven, Hessell & Brewer
1. Effective Date of Agreement:
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation
of the State of California
( ) Redevelopment Agency of the City of Chula Vista, a
political subdivision of the State of California
( ) Industrial Development Authority of the City of Chula
Vista, a
( ) Other: , a
[insert business form]
("City")
3. Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant:
5. Business Form of Consultant:
( ) Sole Proprietorship
(x) Partnership
( ) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 17
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400 South Sierra Avenue, Suite 100
Solana Beach, California 92075
Voice Phone (619) 456-1915
Fax Phone (619) 259-0292
7. General Duties: To provide legal services for the formation
of Community Facilities District No. 97-03 and bond sale for the
McMillin Otay Ranch Project. The Community Facilities District
is for the financing of public works such as streets, sewerage,
water and storm drain systems.
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
Based upon our understanding of the proposed financing, we
anticipate that the deliverables to be provided by bond counsel
will include the following:
1. Property owner petition;
2. Reimbursement agreement between McMillin and the City
pursuant to which McMillin shall advance funds to the City
to pay for any costs incurred by the City in undertaking the
feasibility study, the proceedings to form the community
facilities district and issuing the special tax bonds;
3. Acquisition agreement to provide for the acquisition of the
improvements to be constructed by McMillin;
4. Joint community facilities agreements with any public agency
other than the City which will own or operate any of the
improvements to be financed through the community facilities
district;
5. Resolutions which may include the following:
* Resolution approving boundary map;
* Resolution of intention to form district;
* Resolution of intention to incur bonded indebtedness;
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 18
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* Resolution approving report of special tax consultant;
* Resolution of formation of the community facilities
district;
* Resolution declaring necessity to incur bonded
indebtedness;
* Resolution calling special election;
* Resolution declaring results of special election; and
* Resolution authorizing the issuance of special tax
bonds;
6. Ordinance authorizing the levy of special taxes;
7. Notices, instructions and certificates of compliance with
notice requirements for the concurrent public hearings
pertaining to the formation of the community facilities
district and the authorization to incur a bonded
indebtedness;
8. Consent and waiver forms pertaining to the shortening of
time for the special election to authorize the levy of
special taxes and issuance of bonds;
9. Instructions and materials for conducting the special
elections;
10. Notice of special tax lien and instructions for recordation;
11. Bond indenture;
12. All documents required to be provided by the City at the
bond closing;
13. Special tax bonds;
14. All documents required to be filed with the California Debt
and Investment Advisory Commission and the Internal Revenue
Service;
15. Such other documents as are necessary to facilitate the
formation of the community facilities district and the
issuance of the bonds; and
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July 1, 1997 Page 19
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16. All àocuments requireà to be fileà for juàicial valiàation
proceedings, if any.
B. Date for Commencement of Consultant Services:
( ) Same as Effective Date of Agreement
(X) Other: Upon written notice to proceed from the City
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1: nla
Deliverable No. 2: nla
Deliverable No. 3: nla
D. Date for completion of all Consultant services:
9. Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
(x) Employer's Liability Insurance coverage: $1,000,000.
(x) Commercial General Liability Insurance:. $1,000,000.
( ) Errors and Omissions insurance: None Required
(included in Commercial General Liability coverage).
(X) Errors and Omissions Insurance: $250,000 (not included
in Commercial General Liability coverage).
10. Materials Required to be Supplied by City to Consultant:
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July 1, 1997 Page 20
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11. Compensation:
A. (X) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant
as herein required, City shall pay a single fixed fee in the
amounts and at the times or milestones or for the Deliverables
set forth below:
Single Fixed Fee Amount: payable as
follows:
Milpstone or Event or Deliverable Amount or Percent of Fixed Fee
(SEE EXHIBIT B)
( ) l. Interim Monthly Advances. The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end
of each phase only the compensation for that phase
has been paid. Any payments made hereunder shall
be considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that
phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each
interim payment such that, at the end of the
phase, the full retention has been held back from
the compensation due for that phase. Percentage
of completion of a phase shall be assessed in the
sole and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by
2pty11 . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 21
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the City that has been provided, but in no event
shall such interim advance payment be made unless
the Contractor shall have represented in writing
that said percentage of completion of the phase
has been performed by the Contractor. The
practice of making interim monthly advances shall
not convert this agreement to a time and materials
basis of payment.
B. ( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined
Services by Consultant as are separately identified below, City
shall pay the fixed fee associated with each phase of Services,
in the amounts and at the times or milestones or Deliverables set
forth Consultant shall not commence Services under any Phase,
and shall not be entitled to the compensation for a Phase, unless
City shall have issued a notice to proceed to Consultant as to
said Phase.
Phase Fee for Said Phase
1. $
2. $
3, $
( ) 1. Interim Monthly Advances. The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end
of each phase only the compensation for that phase
has been paid. Any payments made hereunder shall
be considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed, If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 22
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phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each
interim payment such that, at the end of the
phase, the full retention has been held back from
the compensation due for that phase. Percentage
of completion of a phase shall be assessed in the
sole and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by
the City that has been provided, but in no event
shall such interim advance payment be made unless
the Contractor shall have represented in writing
that said percentage of completion of the phase
has been performed by the Contractor. The
practice of making interim monthly advances shall
not convert this agreement to a time and materials
basis of payment.
C. ( ) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as
herein required, City shall pay Consultant for the productive
hours of time spent by Consultant in the performance of said
Services, at the rates or amounts set forth in the Rate Schedule
hereinbelow according to the following terms and conditions:
(1) ( ) Not-to-Exceed Limitation on Time and
Materials Arrangement
Notwithstanding the expenditure by Consultant of
time and materials in excess of said Maximum
Compensation amount, Consultant agrees that Consultant
will perform all of the Defined Services herein
required of Consultant for $ including
all Materials, and other "reimbursables" ("Maximum
Compensation").
(2) ( ) Limitation without Further Authorization on
Time and Materials Arrangement
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 23
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At such time as Consultant shall have incurred
time and materials equal to %5,000 ("Authorization
Limit"), Consultant shall not be entitled to any addi-
tional compensation without further authorization
issued in writing and approved by the City. Nothing
herein shall preclude Consultant from providing
additional Services at Consultant's own cost and
expense.
Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
( ) Hourly rates may increase by 6% for services
rendered after [month], 19 , if delay in
providing services is caused by City.
12. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by
Consultant in the performance of services herein required, City
shall pay Consultant at the rates or amounts set forth below:
(X) None, the compensation includes all costs.
Cost or Rate
( ) Reports, not to exceed $ _ :
( ) Copies, not to exceed $_ :
( ) Travel, not to exceed $ _ :
( ) Printing, not to exceed $ _ :
( ) Postage, not to exceed $ _ :
( ) Delivery, not to exceed $ _ :
2ptyll ,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 24
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( ) ~ong Distance Telephone Charges,
not to exceed $ -
( ) Other Actual Identifiable Direct Costs:
, not to exceed $ :
, not to exceed $ :
13. Contract Administrators:
City: Alex Al-Agha, Senior Civil Engineer
Consultant: Warren Diven, Partner
14. Liquidated Damages Rate:
( ) $ - per day.
( ) Other:
15. Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
(X) Not Applicable. Not an FPPC Filer,
( ) FPPC Filer
( ) Category No. 1. Investments and sources of
income.
( ) Category No, 2. Interests in real property,
( ) Category No, 3. Investments, interest in real
property and sources of income subject to the
regulatory, permit or licensing authority of the
department.
( ) Category No, 4. Investments in business entities
and sources of income which engage in land
development, construction or the acquisition or
sale of real property.
( ) Category No. 5. Investments in business entities
and sources of income of the type which, within
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 25
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the past two years, have contracted with the City
of Chula Vista (Redevelopment Agency) to provide
services, supplies, materials, machinery or
equipment.
( ) Category No. 6. Investments in business entities
and sources of income of the type which, within
the past two years, have contracted with the
designated employee's department to provide
services, supplies, materials, machinery or
equipment.
( ) Category No, 7. Business positions.
( ) List "Consultant Associates" interests in real
property within 2 radial miles of Project Property, if any:
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
18. Bill Processing:
A. Consultant's Billing to be submitted for the following
period of time:
( ) Monthly
( ) Quarterly
( X) Other: As given in exhibit B
2ptyll ,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 26
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B. Day of the Period for submission of Consultant's
Billing: ( ) First of the Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other:
C. City's Account Number:
19. Security for Performance
( ) Performance Bond, $
( ) Letter of Credit, $
( ) Other Security:
Type:
Amount: $
( ) Retention. If this space is checked, then
notwithstanding other provisions to the contrary
requiring the payment of compensation to the Consultant
sooner, the City shall be entitled to retain, at their
option, either the following "Retention Percentage" or
"Retention Amount" until the City determines that the
Retention Release Event, listed below, has occurred:
( ) Retention Percentage: - %
( ) Retention Amount: $
Retention Release Event:
( ) Completion of All Consultant Services
( ) Other:
2ptyll,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 27
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Exhibit B
to
Agreement between
City of Chula Vista
and
Brown, Diven, Hessell & Brewer
Feasibility Study
Brown, Diven & Hentschke will be paid on an hourly basis at the
rate of $125 per Hour, not to exceed $5,000
District Formation and Bond Sale
Brown, Diven, Hessell & Brewer will be paid a fee based on the size
of the each series of bonds issued for the community facilities
district. Such fee will be computed as follows:
First Bond Issue:
One-half of one percent (0.5';) of the first $5,000,000;
One-quarter of one percent (0.25';) of the amount from
$5,000,001 to $10,000,000;
One-eight of one percent (0.125';) of the amount from
$10,000,001 to $15,000,000;
One-sixteenth of one percent (0.0625';) on the balance;
with a minimum fee for legal services of $15,000.
Subsequent Bond Issues:
One-half of one percent (0.5';) of the first $5,000,000;
One-quarter of one percent (0.20';) of the amount from
$5,000,001 to $10,000,000;
One-eight of one percent (0,1';) of the amount from $10,000,001
to $15,000,000;
One-sixteenth of one percent (0. OS';) on the balance;
with a minimum fee for legal services of $10,000,
If temporary bond anticipation notes are issued, the fee shall be
twenty-five percent (25';) of the fee as above set forth, but not
less than $2,500.00.
2pty11. wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 28
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Payment of the above fees for bond counsel services would be due
and payable in full upon receipt of money from the sale and
delivery of bonds and/or notes to the successful undeywriter.
TERMINATION OF PROCEEDINGS TO FORM ASSESSMENT DISTRICT
In the event the proceedings are terminated or abandoned prior to
completion, Counsel would be paid a reasonable fee for legal
services rendered to the date of termination based on an hourly
rate of $125 per hour, not to exceed $5,000; provided, however,
such sum would be payable solely from advances made to the City
from the owner or developer of the McMillin Otay Ranch property and
the City's general fund would not be liable for any such payment.
COST AND EXPENSES
Counsel proposes to pay costs and expenses incurred with the
exception of those specific costs identified in this section.
Expenses to be billed to City would include only extraordinary
messenger and/or overnight mail delivery services (actual cost),
copying ($0.05 per page), facsimile (transmission only- $0.25 per
page) and preparation and printing of bonds and transcripts by
Counsel, if required, not to exceed $250 without prior approval of
the City Engineer. Such costs would be due and payable upon the
issuance of the bonds or the termination of the proceedings to form
the Assessment District, Reimbursable costs incurred prior to
termination of the proceedings to form the Assessment District
would be payable only from property owner or developer advances to
the City.
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 29
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R /90'd-Y
Parties and Recital Page(s)
Agreement between
City of Chula Vista
and
Fieldman, Rolapp & Associates
for financial advisory services for the formation of a Community
Facilities District and the sale of Bonds
This agreement ("Agreement"), dated June 2, 1998 for the
purposes of reference only, and effective as of the date last
executed unless another date is otherwise specified in Exhibit A,
Paragraph 1 is between the City-related entity as is indicated on
Exhibi t Þ., paragraph 2, as such ("City"), whose business form is
set forth on Exhibit A, paragraph 3, and the entity indicated on
the attached Exhibit A, paragraph 4, as Consultant, whose business
fo= is set forth on Exhibit A, paragraph 5, and whose place of
business and telephone numbers are set forth on Exhibit A,
paragraph 6 ("Consultant"), and is made with reference to the
following facts:
Recitals
Whereas, The McMillin Otay Ranch Project is desirous of
financing certain pub~ic improvements through a Community
Facilities District; and,
Whereas, the City lacks the financial expertise necessary to
form the Community Services District and to sell the bonds; and,
Whereas, Consultant warrants and represents that they are
experienced and staffed in a manner such that they are and can
prepare and deliver the services required of Consultant to City
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 1
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wi~hin the time frames herein provided all in accor¿ance with the
te~s and conditions of this Agreement;
(End of Recitals. Next Page starts Obligatory Provisions.)
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 2
/¿J-j/5
Obligatory Provisions Pages
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant
do hereby mutually agree as follows:
1. Consultant's Duties
Þ.. General Duties
Consultant shall perform all of the services described on
the attached Exhibit A, Paragraph 7, entitled "General Duties";
and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General
Duties", Consultant shall also perform all of the services
described in Exhibit A, Paragraph 8, entitled" Scope of Work and
Schedule", not inconsistent with the General Duties, according
to, and within the time frames set forth in Exhibit A, Paragraph
8, and deliver to City such Deliverables as are identified in
Exhibit A, Paragraph 8, within the time frames set forth therein,
time being of the essence of this agreement. The General Duties
and the work and deliverables required in the Scope of Work and
Schedule shall be herein referred to as the "Defined Services".
Failure to complete the Defined Services by the times indicated
does not, except at the option of the City, operate to terminate
this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request from Consultant,
from time to time reduce the Defined Services to be performed by
the Consultant under this Agreement. Upon doing so, City and
Consultant agree to meet in good faith and confer for the purpose
of negotiating a corresponding reduction in the compensation
associated with said reduction.
D. Additional Services
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 3
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In addition to performing the Defined Services herein set
forth, City may require Consultant to perform additional
consulting services related to the Defined Services ("Additional
Services"), and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform
same on a time and materials basis at the rates set forth in the
"Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate
fixed fee is otherwise agreed upon. All compensation for
Additional Services shall be paid monthly as billed.
E. Standard of Care
Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services, shall perform in
a manner consistent with that level of care and skill ordinarily
exercised by members of the profession currently practicing under
similar conditions and in similar locations.
F. Insurance
Consultant represents that it and its agents, staff and
subconsultants employed by it in connection with the Services
required to be rendered, are protected against the risk of loss
by the following insurance coverages, in the following categor-
ies, and to the limits specified, policies of which are issued by
Insurance Companies that have a Best's Rating of "A, Class V" or
better, or shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's
Liability Insurance coverage in the amount set forth in the
attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business
Automobile Insurance coverage in the amount set forth in Exhibit
A, Paragraph 9, combined single limit applied separately to each
project away from premises owned or rented by Consultant, which
names City and Applicant as an Additional Insured, and which is
primary to any policy which the City may otherwise carry
( "Primary Coverage"), and which treats the employees of the City
and Applicant in the same manner as members of the general public
("Cross-liability Coverage").
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 4
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Errors and Omissions insurance, in the amount set forth in
Exhibi t A, ?a:r-agraph 9, unless Errors and omissions coverage is
included in the General Liability policy.
G. Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein
required, prior to the commencement of services required under
this Agreement, by delivery of Certificates of Insurance
demonstrating same, and further indicating that the policies may
not be canceled without at least thirty (30) days written notice
to the Additional Insured.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured
Coverage, Primary Coverage and Cross-liability Coverage required
under Consultant's Commercial General Liability Insurance Policy,
Consultant shall deliver a policy endorsement to the City
demonstrating same, which shall be reviewed and approved by the
Risk Manager.
H, Securitv for Performance.
(1) Performance Bond.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Performance Bond (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Performance Bond") , then Consultant
shall provide to the City a performance bond by a surety and in a
form and amount satisfactory to the Risk Manager or City Attorney
which amount is indicated in the space adjacent to the term,
"Performance Bond ", in said Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Letter of Credit (indicated
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 5
I?J-f/'ý
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Letter of Credit"), then Consultant
shall provide to the City an irrevocable letter of credit
callable by the City at their unfettered discretion by submitting
to the bank a letter, signed by the City Manager, stating that
the Consultant is in breach of the terms of this Agreement. The
letter of credit shall be issued by a bank, and be in a form and
amount satisfactory to the Risk Manager or City Attorney which
amount is indicated in the space adjacent to the term, "Letter of
Credit", in said Paragraph 19, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide security other than a
Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph
entitled "Other Security"), then Consultant shall provide to the
City such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney.
1. Business License
Consultant agrees to obtain a business license from the City
and to otherwise comply with Title 5 of the Chula Vista Municipal
Code.
2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule
therein contained, and to provide direction and guidance to
achieve the objectives of this agreement. The City shall permit
access to its office facilities, files and records by Consultant
throughout the term of the agreement. In addition thereto, City
agrees to provide the information, data, items and materials set
forth on Exhibit A, Paragraph 10, and with the further
understanding that delay in the provision of these materials
beyond 30 days after authorization to proceed, shall constitute a
2ptyll ,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 6
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basis for the justifiable delay in the Consultant's performance
of this agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant
submitted to the City periodically as indicated in Exhibit A,
Paragraph 18, but in no event more frequently than monthly, on
the day of the period indicated in Exhibit A, Paragraph 18, City
shall compensate Consultant for all services rendered by Consult-
ant according to the terms and conditions set forth in Exhibit A,
Paragraph 11, adjacent to the governing compensation relationship
indicated by a "checkmark" next to the appropriate arrangement,
subject to the requirements for retention set forth in paragraph
19 of Exhibit A, and shall compensate Consultant for out of
pocket expenses as provided in Exhibit A, Paragraph 12.
All billings submitted by Consultant shall contain
sufficient information as to the propriety of the billing to
permit the City to evaluate that the amount due and payable
thereunder is proper, and shall specifically contain the City's
account number indicated on Exhibit A, Paragraph 18 (C) to be
charged upon making such payment,
3. Administration of Contract
Each party designates the individuals ("Contract
Administrators") indicated on Exhibit A, Paragraph 13, as said
party's contract administrator who is authorized by said party to
represent them in the routine administration of this agreement.
4. Term.
This Agreement shall terminate when the Parties have
complied with all executory provisions hereof.
5. Liquidated Damages
The provisions of this section apply if a Liquidated Damages
Rate is provided in Exhibit A, Paragraph 14,
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 7
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It is acknowledged by both parties that time is of the
essence in ~he completion of this Agreement. It is difficult ~o
estimate the amount of damages resulting from delay in per-
formance. The parties have used their judgment to arrive at a
reasonable amount to compensate for delay,
Failure to complete the Defined Services within the allotted
time period specified in this Agreement shall result in the
following penalty: For each consecutive calendar day in excess
of the time specified for the completion of the respective work
assignment or Deliverable, the consultant shall pay to the City,
or have withheld from monies due, the sum of Liquidated Damages
Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages
Rate").
Time extensions for delays beyond the consultant's control,
other than delays caused by the City, shall be requested in
writing to the City's Contract Administrator, or designee, prior
to the expiration of the specified time. Extensions of time,
when granted, will be based upon the effect of delays to the work
and will not be granted for delays to minor portions of work
unless it can be shown that such delays did or will delay the
progress of the work.
6, Financial Interests of Consultant
lL Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as
an "FPPC filer", Consultant is deemed to be a "Consultant" for
the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the
City Clerk on the required Statement of Economic Interests in
such reporting categories as are specified in Paragraph 15 of
Exhibit A, or if none are specified, then as determined by the
City Attorney.
B. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page B
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any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to
know Consultant has a financial interest other than the
compensation promised by this Agreement.
C. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant warrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations
promulgated by the Fair Political Practices Commission, and has
determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with
Consultant's duties under this agreement.
D. Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during
the term of this Agreement which would constitute a conflict of
interest as prohibited by the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will immediately advise the City Attorney of City if Consultant
learns of an economic interest of Consultant's which may result
in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
F. Specific warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant,
nor Consultant's immediate family members, nor Consultant's
employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in any property
which may be the subject matter of the Defined Services, or in
any property within 2 radial miles from the exterior boundaries
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 9
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of any property which may be the subject matter of the Defined
Services, ("Prohibited Interest"), other than as listed in
Exhibi t Þ., Paragraph 15.
Consultant further warrants and represents that no promise
of future employment, remuneration, consideration, gratuity or
other reward or gain has been made to Consultant or Consultant
Associates in connection with Consultant's performance of this
Agreement. Consultant promises to advise City of any such
promise that may be made during the Term of this Agreement, or
for 12 months thereafter.
Consultant agrees that Consultant Associates shall not
acquire any such Prohibited Interest within the Term of this
Agreement, or for 12 months after the expiration of this
Agreement, except with the written permission of City.
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City,
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers and
employees, from and against all claims for damages, liability,
cost and expense (including without limitation attorneys' fees)
arising out of the conduct of the Consultant, or any agent or
employee, subcontractors, or others in connection with the
execution of the work covered by this Agreement, except only for
those claims arising from the sole negligence or sole willful
misconduct of the City, its officers, or employees. Consultant's
indemnification shall include any and all costs, expenses,
attorneys' fees and liability incurred by the City, its officers,
agents, or employees in defending against such claims, whether
the same proceed to judgment or not. Further, Consultant at its
own expense shall, upon written request by the City, defend any
such suit or action brought against the City, its officers,
agents, or employees. Consultants' indemnification of City shall
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 10
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not be limited by any prior or subsequent declaration by the
Co:1sultant.
8, Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a
timely and proper manner Consultant's obligations under this
Agreement, or if Consultant shall violate any of the covenants,
agreements or stipulations of this Agreement, City shall have the
right to terminate this Agreement by giving written notice to
Consultant of such termination and specifying the effective date
thereof at least five (5) days before the effective date of such
termination. In that event, all finished or unfinished documents,
data, studies, surveys, drawings, maps, reports and other
materials prepared by Consultant shall, at the option of the
City, become the property of the City, and Consultant shall be
entitled to receive just and equitable compensation for any work
satisfactorily completed on such documents and other materials up
to the effective date of Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused City by
Consultant's breach.
9. Errors and omissions
In the event that the City Administrator determines that the
Consultants' negligence, errors, or omissions in the performance
of work under this Agreement has resulted in expense to City
greater than would have resulted if there were no such
negligence, errors, omissions, Consultant shall reimburse City
for any additional expenses incurred by the City. Nothing herein
is intended to limit City's rights under other provisions of this
agreement.
10, Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any
reason, by giving specific written notice to Consultant of such
termination and specifying the effective date thereof, at least
thirty (30) days before the effective date of such termination.
In that event, all finished and unfinished documents and other
materials described hereinabove shall, at the option of the City,
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 11
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become City's sole and exclusive property. If the Agreement is
terminated by City as provided in this paragraph, Consultant
shall be entitled to receive just and equitable compensation for
any satisfactory work completed on such documents and other
materials to the effective date of such termination, Consultant
hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth
herein.
11. Assignability
The services of Consultant are personal to the City, and
Consultant shall not assign any interest in this Agreement, and
shall not transfer any interest in the same (whether by
assignment or novation), without prior written consent of City.
City hereby consents to the assignment of the portions of the
Defined Services identified in Exhibit A, Paragraph 17 to the
subconsultants identified thereat as "Permitted Subconsultants".
12, Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and
exclusive property of City. No such materials or properties
produced in whole or in part under this Agreement shall be
subject to private use, copyrights or patent rights by Consultant
in the United States or in any other country without the express
written consent of City, City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions
of the Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports,
studies, data, statistics, forms or other materials or properties
produced under this Agreement.
13. Independent Contractor
City is interested only in the results obtained and
Consultant shall perform as an independent contractor with sole
control of the manner and means of performing the services
required under this Agreement, City maintains the right only to
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 12
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reject or accept Consultant's work products. Consultant and a~y
of the Consultant's agents, employees or representatives are, for
all purposes under this Agreement, an independent contractor and
shall not be deemed to be an employee of City, and none of them
shall be entitled to any benefits to which City employees are
entitled including but not limited to, overtime, retirement
benefits, worker's compensation benefits, injury leave or other
leave benefits. Therefore, City will not withhold state or
federal income tax, social security tax or any other payroll tax,
and Consultant shall be solely responsible for the payment of
same and shall hold the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this
agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by
the City in accordance with the procedures set forth in Chapter
1,34 of the Chula Vista Municipal Code, as same may from time to
time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and
procedures used by the City in the implementation of same.
Upon request by City, Consultant shall meet and confer in
good faith with City for the purpose of resolving any dispute
over the terms of this Agreement.
15. At torney's Fees
Should a dispute arising out of this Agreement result in
litigation, it is agreed that the prevailing party shall be
entitled to recover all reasonable costs incurred in the defense
of the claim, including costs and attorney's fees.
16. Statement of Costs
In the event that Consultant prepares a report or document,
or participates in the preparation of a report or document in
performing the Defined Services, Consultant shall include, or
cause the inclusion of, in said report or document, a statement
of the numbers and cost in dollar amounts of all contracts and
2ptyll . wp - Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 13
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subcontracts relating to the preparation oÍ the report or
document.
17. Miscellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consult-
ant shall have no authority to act as City's agent to bind City
to any contractual agreements whatsoever,
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the
Consultant and/or their principals is/are licensed with the State
oÍ California or some other state as a licensed real estate
broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor their principals are licensed real estate
brokers or salespersons,
C. Notices
All notices, demands or requests provided for or permitted
to be given pursuant to this Agreement must be in writing, All
notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served
or deposited in the United States mail, addressed to such party,
postage prepaid, registered or certified, with return receipt
requested, at the addresses identified herein as the places of
business for each of the designated parties.
D. Entire Agreement
This Agreement, together with any other written document
referred to or contemplated herein, embody the entire Agreement
and understanding between the parties relating to the subject
matter hereof. Neither this Agreement nor any provision hereof
may be amended, modified, waived or discharged except by an
instrument in writing executed by the party against which
enforcement of such amendment, waiver or discharge is sought.
2ptyll ,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 14
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E. Capacity of Parties
Each signatory and party hereto hereby warrants and
represents to the other party that it has legal authority and
capacity and direction from its principal to enter into this
Agreement, and that all resolutions or other actions have been
taken so as to enable it to enter into this Agreement.
F. Governing Law/Venue
This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action
arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State
of California, and if applicable, the City of Chula Vista, or as
close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
[end of page. next page is signature page.]
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 15
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Signatuye Page
to
Agreement between City of Chula Vista and Fieldman, Rolapp &
Associates
foy financial advisory services for the formation of a Community
Facilities District and the sale of Bonds
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
Dated: , 19 - City of Chula Vista
by:
Shirley Horton, Mayor
Attest:
Beverly Authelet, City Clerk
Approved as to form:
~ ~~-r
John M. Kaheny, Cit Attorney
Dated: Associates
Exhibit List to Agreement
(X) Exhibit A.
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 16
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Exhibit A
to
Agreement between
City of Chula Vista
and
Fieldman, Rolapp & Associates
1. Effective Date of Agreement:
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation
of the State of California
( ) Redevelopment Agency of the City of Chula Vista, a
political subdivision of the State of California
( ) Industrial Development Authority of the City of Chula
Vista, a
( ) Other: , a
[insert business form]
("City")
3. Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant:
Fieldman, Rolapp & Associates
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 17
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6. Place of Business, Telephone and Fax Number of Consultant:
2100 Main St, Suite 210
Irvine, California 92614
Voice Phone (714) 660-8500
Fax Phone (714) 474-8773
7. General Duties:
To perform municipal financial advisory services for the
fo~ation of Community Facilities District No. CFD-97-03 and
subsequent bond issuance for public works within and related to
the McMillin Otay Ranch project (east and west of La Media Road,
north of Olympic Parkway, south of Otay Lakes Road).
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
PK.kI..5E I
1. Preliminary Survey
Confer with City staff, bond counsel, consultants, and other
interested parties for the purpose of making a preliminary survey
of the Project and to assist in the formulation of a coordinated
plan to fund the Project,
II. Attendance at Meetings/Work Sessions
Attend a maximum of four meetings and work sessions with City
staff, developers and their representatives to explain issues
related to project feasibility, the C.F.D. formation process and
related topics, Consultant will also attend up to three City
Council meetings or public hearings related to the Project,
Additional meetings will be billed at consultant then current
hourly rates.
III. Consultation/Advice
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 18
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Consultant will be available to the City for consultation and
advice.
IV. Preparation of Feasibility Study
Consultant will collect and review information relevant to
project feasibility. Consultant will also utilize the materials
and prepare the Feasibility Study. Relevant materials include an
analysis of the Rate and Method of Apportionment and related
Special Tax formula, descriptions of improvements to be included
in the Community Facilities District, comments on cost estimates
of proposed facilities and statements regarding compliance with
the City's Statement of Goals and Policies.
V. Review and Comment on Formation Documents
Consultant will assist in the development, review, and analysis
of various formation documents, such as the Statement of Goals
and Policies for Community Facilities Districts, Resolution of
Intention and other legal documents and City policies.
PF-~E II
Phase II services will commence upon appropriate action of the
City directing the sale of the contemplated Bonds. Phase I
services shall be deemed completed upon commencement of Phase II
services.
Consultant will perform the following additional services in
conjunction with the marketing of the Bonds.
1. Municipal Securities Market
Furnish the City with information concerning current municipal
securities market conditions and make recommendations as to the
technical details of the financing, including maturity schedules,
funds, covenants, redemption features, and other details which
will, in consultant opinion, make the proposed financing most
acceptable to prospective purchasers and, therefore, marketable
at the lowest possible interest rate.
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 19
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II. Marketing Plan
Recommend to the City a method of marketing the Bonds.
III. Sale of Bonds
At the direction of the City either assist in negotiating the
sale of the contemplated Bonds or, assist the City in calling for
competitive bids.
A. Negotiated Sale
If it is determined to sell the Bonds by negotiated sale,
consultant will:
1. Selection of Underwriters. Assist the City in the selection
of a qualified underwriter whose reputation, financial strength,
and experience will best serve the interests of the City.
2. Consultation/Advice. Attend any meetings concerning the
Project when deemed necessary and, in addition, be available for
consultation and advice with such time as all Bonds to finance
the Project have been sold and thereafter upon request.
3. Negotiated Sale of Bonds, Assist the City in negotiating the
sale of the contemplated Bonds to the underwriter selected and
make appropriate recommendations to the City,
4. Financial Review of Documents. Review the financial aspects
of all documents relating to the marketing of the proposed Bonds
including Official Statement or Disclosure Document, Bond
Purchase Agreement, and Continuing Disclosure.
5, Due Diligence Meeting. When a due diligence meeting is held,
consultant will participate in up to three diligence meetings and
assist the City in the examination of pertinent financial data.
6. Multiple Sales/Security Review and Services to be Provided.
In the event the authorized Bonds are sold in more than one sale,
consultant will review the financial terms and conditions of each
offering to determine to what extent, if any, there is an impact
on the security of each series of Bonds and consultant will
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 20
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provide se~vices for each series of Bonds in accordance with this
sec1:ion.
B. Sealed Competitive Bids
If it is determined to sell the Bonds at sealed
competitive bid, consultant will perform the following services:
1. Official Statement. Accumulate and compile into an
Official Statement economic, financial, and statistical data
pertaining to the proposed financing, which Official Statement
shall be prepared on the City's behalf and will be satisfactory
to the City. The Official Statement will include the Notice of
Sale,
2. Due Diligence Meetings. Prior to the production and
distribution of any Official Statement, the City agrees to hold a
due diligence meeting(s) to verify the accuracy of the data
contained in the Official Statement and make full disclosure of
all pertinent information concerning the economy and finances of
the City. Consultant will participate in up to three such due
diligence meeting(s) and assist the City in the examination of
pertinent financial data.
3. Production of Official Statement. Under the
supervision of the City, cause to produce said Official
Statement.
4. Distribution of Official Statement. Distribute copies
of the Official Statement to municipal securities underwriters.
5. Updating of Official Statement. In the event the
authorized financing is sold in more than one sale of Bonds,
consultant will update and distribute copies of the revised
Official Statement.
6. Consultation/Advice. Attend any meetings concerning
the Project when deemed necessary and, in addition, be available
for consultation and advice until such time as the Bonds to
finance the Project have been sold and thereafter upon request,
7. Contact of Bond Underwriters. Make direct contact with
a select number of municipal securities underwriters in an effort
to stimulate bidding on the Bonds.
8. THE BOND BUYER Ad. Place an advertisement in THE BOND
BUYER announcing the offering of the Bonds prior to the time bids
are received for such issue.
9, Attendance at Bid Opening. Attend meetings of the City
at which bids for the Bonds are received for the purpose of
assisting in the computation and evaluation of such bids.
2ptyll,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 21
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IV. Rating
If deemed desirable, work with recognized rating service(s) in an
attempt to obtain an advantageous rating of the Bonds to be
issued.
V. Insurance/Credit Facility
If deemed desirable, consultant will assist the City in obtaining
a municipal bond insurance policy or other credit facility
providing for guaranteed payment of principal and interest on the
Bonds.
VI. Attendance at Closing
Consultant will compute closing figures, and assist bond counsel
in coordinating events of the closing.
B. Additional Work
If the City desires additional work beyond the scope of this
Agreement, it will be performed when authorized on a time and
material expense basis in accordance with consultant then current
fee schedule.
C, Project Consultants
Subject to prior approval of the City Engineer and Finance
Director, both as to selection and compensation, hire a M.A.I.
appraiser to provide an appraisal of lands within the proposed
district. The City shall fully reimburse for the cost of the
services by the appraiser on a timely manner. The appraisal will
be addressed to the City.
Other subconsultants (such as the Disclosure Counsel and Market
Absorption Consultant) may be employed by the Consultant but only
subject to the prior approval of the City Engineer and the
Finance Director; both as to selection and compensation. The
City shall fully reimburse for the cost of such services in a
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 22
--
/tJ -~~
timely manner. The reports and opinions of these subconsultants
will be aàdressed to the City.
In addition to any fees which may come due hereunder, consultant
will be reimbursed, at cost, for any out-of-pocket expenses
incurred for any of the following purposes: printing and mailing
of the Preliminary and Final Official Statements and any
accompanying documents required for the marketing of the bonds:
publication of the Notice of Sale; and preparation. of a Statement
of Overlapping debt, The total amount of such reimbursement
shall not exceed $14,000, Said maximum amount does not include
the cost of obtaining a bond rating, insurance, or Special
Disclosure Counsel. The reimbursement of the foregoing expenses
is not contingent on or subject to the sale of bonds.
The City may employ, at its own expense, any or all consultants,
or other personnel it deems necessary to complete the project.
B, Date for Commencement of Consultant Services:
( ) Same as Effective Date of Agreement
(X) Other: Upon written notice to proceed from the City
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1: nla
Deliverable No, 2: nla
Deliverable No. 3: nla
D. Date for completion of all Consultant services:
9. Insurance Requirements:
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 23
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(x) Statutory Worker's Compensation Insurance
(x) Employer's Liability Insurance coverage: $1,000,000.
(x) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required
(included in Commercial General Liability coverage).
(X) Errors and Omissions Insurance: $250,000 (not included
in Commercial General Liability coverage).
10. Materials Required to be Supplied by City to Consultant:
11. Compensation:
A. (X) Single Fixed Fee Arrangement,
For performance of all of the Defined Services by Consultant
as herein required, City shall pay a single fixed fee in the
amounts and at the times or milestones or for the Deliverables
set forth below:
Single Fixed Fee Amount: $41,500 for a negotiated sale or
$52,000 for competitive sale, payable as follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
City Engineer's Approval of feasibility study & Phase I $12,000
If any sale of bonds is canceled or postponed beyond one year
from the date of commencement of proceedings for such sale, or if
this contract is terminated by either party for any reason,
Consultant shall be paid for services rendered at the rate of
$195 per hour not to exceed this $12,000 milestone for the
feasibility study.
Completion of Negotiated sale (Phase I, II, Items III,A, IV, V,
& VI above) $29,500
or
2pty11.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 24
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Completion of Competitive Sale* (Phase I, II, Items III.B, IV, V,
& VI above) $40,000
* Includes preparation of official statement by consultant (does
not include printing and postage of the Official Statement).
For hiring of the project consultants specified in Section 8.C of
Exhibit A, City shall pay a single fee not to exceed the
following amounts,
Market Absorption Consultant $17,500
Appraiser $30,000
Special Disclosure Counsel $35,000
Printing and Posting Official Statement $14,000
( ) 1. Interim Monthly Advances. The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end
of each phase only the compensation for that phase
has been paid. Any payments made hereunder shall
be considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed, If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that
phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each
interim payment such that, at the end of the
phase, the full retention has been held back from
the compensation due for that phase. Percentage
of completion of. a phase shall be assessed in the
sole and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by
the City that has been provided, but in no event
shall such interim advance payment be made unless
the Contractor shall have represented in writing
that said percentage of completion of the phase
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 25
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has been performeà by the Contractor. The
practice of making interim monthly aàvances shall
not convert this agreement to a time and materials
basis of payment,
B, ( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined
Services by Consultant as are separately identified below, City
shall pay the fixed fee associated with each phase of Services,
in the amounts and at the times or milestones or Deliverables set
forth Consultant shall not commence Services under any Phase,
and shall not be entitled to the compensation for a Phase, unless
Ci~y shall have issued a notice to proceed to Consultant as to
said Phase.
Phase Fee for Said Phase
$
( ) 1. Interim Monthly Advances. The City shall make
interim monthly aàvances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end
of each phase only the compensation for that phase
has been paià. Any payments made hereunder shall
be considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that
phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each
interim payment such that, at the end of the
phase, the full retention has been helà back from
the compensation due for that phase. Percentage
of completion of a phase shall be assessed in the
sole and unfettered discretion by the Contracts
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 26
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Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by
the City that has been provided, but in no event
shall such interim advance payment be made unless
the Contractor shall have represented in writing
that said percentage of completion of the phase
has been performed by the Contractor. The
practice of making interim monthly advances shall
not convert this agreement to a time and materials
basis of payment,
C. ( ) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as
herein required, City shall pay Consultant for the productive
hours of time spent by Consultant in the performance of said
Services, at the rates or amounts set forth in the Rate Schedule
hereinbelow according to the following terms and conditions:
(1) ( ) Not-to-Exceed Limitation on Time and
Materials Arrangement
Notwithstanding the expenditure by Consultant of
time and materials in excess of said Maximum
Compensation amount, Consultant agrees that Consultant
will perform all of the Defined Services herein
required of Consultant for $ including all Materials,
and other "reimbursables" ("Maximum Compensation") .
(2) ( ) Limitation without Further Authorization on
Time and Materials Arrangement
At such time as Consultant shall have incurred
time and materials equal to
("Authorization Limit"), Consultant shall not be
entitled to any additional compensation without further
authorization issued in writing and approved by the
City. Nothing herein shall preclude Consultant from
providing additional Services at Consultant's own cost
and expense.
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 27
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Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
_Principal Thomas Johnsen - 195
-
_Vice President - 150 -
Assistant Vice President - - 130 -
_Associate / Senior Associate - 115 -
- Administrative Assistant - - 75 -
Secretarial Staff 35
( ) Hourly rates may increase by 6% for services
rendered after [month], 19 , if delay in
providing services is caused by City.
12. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by
Consultant in the performance of services herein required, City
shall pay Consultant at the rates or amounts set forth below:
( ) None, the compensation includes all costs.
Cost or Rate
( ) Reports, not to exceed $ _ :
( ) Copies, not to exceed $ _ :
( ) Travel, not to exceed $_:
( ) Printing, not to exceed $ _ :
( ) Postage, not to exceed $ _ :
( ) Delivery, not to exceed $ _ :
( ) Long Distance Telephone Charges,
not to exceed $ -
(X) Other Actual Identifiable Direct Costs:
reimbursables, not to exceed $3,000:
not to exceed $ :
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 28
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13. Cont~act Administrators:
City: Alex Al-Agha, Senior Civil Engineer
Consultant: Thomas G. Johnsen, Principal
14. Liquidated Damages Rate:
( ) $- per day.
( ) Other:
15. Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
( x ) Not Applicable. Not an FPPC Filer.
( ) FPPC Filer
( ) Category No. 1. Investments and sources of
income.
( ) Category No. 2. Interests in real property.
( ) Category No. 3. Investments, interest in real
property and sources of income subject to the
regulatory, permit or licensing authority of the
department.
( ) Category No. 4. Investments in business entities
and sources of income which engage in land
development, construction or the acquisition or
sale of real property.
( ) Category No. 5. Investments in business entities
and sources of income of the type which, within
the past two years, have contracted with the City
of Chula Vista (Redevelopment Agency) to provide
services, supplies, materials, machinery or
equipment.
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 29
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( ) Category No, 6. Investments in business entities
and sources of income of the type which, within
the past two years, have contracted with the
designated employee's department to provide
services, supplies, materials, machinery or
equipment.
( ) Category No. 7. Business positions.
( ) List "Consultant Associates" interests in real property
within 2 radial miles of Project Property, if any:
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
18. Bill Processing:
lL Consultant's Billing to be submitted for the following
period of time:
( ) Monthly
( ) Quarterly
( ) Other:
B. Day of the Period for submission of Consultant's
Billing: ( ) First of the Month
( ) 15th Day of each Month
( ) End of the Month
(X) Other: Upon completion of each milestone as
specified in section 11 of this Exhibit A
2ptyll. wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 30
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C. City's Account Number: 408-4014-DE
19. Security for Performance
( ) Performance Bond, $
( ) Letter of Credit, $
( ) Other Security:
Type:
Amount: $
( ) Retention, If this space is checked, then
notwithstanding other provisions to the contrary
requiring the payment of compensation to the Consultant
sooner, the City shall be entitled to retain, at their
option, either the following "Retention Percentage" or
"Retention Amount" until the City determines that the
Retention Release Event, listed below, has occurred:
( ) Retention Percentage: - %
( ) Retention Amount: $'
Retention Release Event:
( ) Completion of All Consultant Services
( ) Other:
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 31
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Parties and Recital Page(s)
Agreement between
City of Chula Vista
and
David Taussig & Associates, rnc,
for Community Facilities District Assessment Engineering Services
This agreement ("Agreement"), dated June 2, 1998 for the
purposes of reference only, and effective as of the date last
executed unless another date is otherwise specified in Exhibit A,
Paragraph 1 is between the City-related entity as is indicated on
Exhibit A, paragraph 2, as such ("City"), whose business form is
set forth on Exhibit A, paragraph 3, and the entity indicated on
the attached Exhibit A, paragraph 4, as Consultant, whose business
form is set forth on Exhibit A, paragraph 5, and whose place of
business and telephone numbers are set forth on Exhibit A,
paragraph 6 ("Consultant"), and is made with reference to the
following facts:
Recitals
Whereas, The McMillin Otay Ranch Project is desirous of
financing certain public improvements through a Community
Facilities District; and,
Whereas, the City lacks the assessment engineering
experience needed form said Community Facilities District; and,
Whereas, Consultant warrants and represents that they are
experienced and staffed in a manner such that they are and can
prepare and deliver the services required of Consultant to City
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 1
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wi~hin the time frames herein provided all in accordance with ~he
teYmS and conditions of this Agreement;
(End of Recitals. Next Page starts Obligatory Provisions.)
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 2
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Obligatory Provisions Pages
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant
do hereby mutually agree as follows:
1. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on
the attached Exhibit A, Paragraph 7, entitled "General Duties";
and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General
Duties", Consultant shall also perform all of the services
described in Exhibit A, Paragraph 8, entitled" Scope of Work and
Schedule", not inconsistent with the General Duties, according
to, and within the time frames set forth in Exhibit A, Paragraph
8, and deliver to City such Deliverables as are identified in
Exhibit A, Paragraph 8, within the time frames set forth therein,
time being of the essence of this agreement. The General Duties
and the work and deliverables required in the Scope of Work and
Schedule shall be herein referred to as the "Defined Services".
Failure to complete the Defined Services by the times indicated
does not, except at the option of the City, operate to terminate
this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request from Consultant,
from time to time reduce the Defined Services to be performed by
the Consultant under this Agreement. Upon doing so, City and
Consultant agree to meet in good faith and confer for the purpose
of negotiating a corresponding reduction in the compensation
associated with said reduction.
D. Adàitional Services
2ptyll . wp Standarà Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 3
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In addition to performing the Defined Services herein set
fo~::h, City may require Consultant to perfo~m additional
consulting services related to the Defined Services ("Additional
Services"), and upon doing so in writing, if they are within the
scope of services offered by Consultant, Consultant shall perform
same on a time and materials basis at the rates set forth in the
"Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate
fixed fee is otherwise agreed upon, All compensation for
Additional Services shall be paid monthly as billed.
E. Standard of Care
Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services, shall perform in
a manner consistent with that level of care and skill ordinarily
exercised by members of the profession currently practicing under
similar conditions and in similar locations.
F, Insurance
Consultant represents that it and its agents, staff and
subconsultants employed by it in connection with the Services
re~~ired to be rendered, are protected against the risk of loss
by the following insurance coverages, in the following categor-
ies, and to the limits specified, policies of which are issued by
Insurance Companies that have a Best's Rating of "A, Class V" or
better, or shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's
Liability Insurance coverage in the amount set forth in the
attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business
Automobile Insurance coverage in the amount set forth in Exhibit
A, Paragraph 9, combined single limit applied separately to each
project away from premises owned or rented by Consultant, which
names City and Applicant as an Additional Insured, and which is
primary to any policy which the City may otherwise carry
( "Primary Coverage"), and which treats the employees of the City
and Applicant in the same manner as members of the general public
("Cross-liability Coverage").
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 4
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Errors and Omissions insurance, in the amount set forth in
Exl"Übit A, Paragraph 9, unless Errors and Omissions coverage is
included in the General Liability policy.
G, Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein
required, prior to the commencement of services required under
this Agreement, by delivery of Certificates of Insurance
demonstrating same, and further indicating that the policies may
not be canceled without at least thirty (30) days written notice
to the Additional Insured.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured
Coverage, Primary Coverage and Cross-liability Coverage required
unåer Consultant's Commercial General Liability Insurance Policy,
Consultant shall deliver a policy endorsement to the City
demonstrating same, which shall be reviewed and approved by the
Risk Manager.
H. Securitv for Performance.
(1) Performance Bond.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Performance Bond (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Performance Bond"), then Consultant
shall provide to the City a performance bond by a surety and in a
form and amount satisfactory to the Risk Manager or City
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 5
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Attorneyl which amount is indicated in the space adjacent to the
teYTIl, "Performance Bond", in said Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide a Letter of Credit (indicated
by a check mark in the parenthetical space immediately preceding
the subparagraph entitled "Letter of Credit"), then Consultant
shall provide to the City an irrevocable letter of credit
callable by the City at their unfettered discretion by submitting
to the bank a letter, signed by the City Manager, stating that
the Consultant is in breach of the terms of this Agreement. The
letter of credit shall be issued by a bank, and be in a form and
amount satisfactory to the Risk Manager or City Attorney which
amount is indicated in the space adjacent to the term, "Letter of
Credit", in said Paragraph 19, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 19, indicates
the need for Consultant to provide security other than a
Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph
entitled "Other Security"), then Consultant shall provide to the
City such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney,
1. Business License
Consultant agrees to obtain a business license from the City
and to otherwise comply with Title 5 of the Chula Vista Municipal
Code.
1. The City Attorney's Office prefers that you obtain approval
of the surety or bank, the form of the sècurity and the amount of
the security from the Risk Manager in the first instance and not
the City Attorney. The City Attorney's office would be available
on such risk issues as an alternate only if the Risk Manager is
unavailable and the matter can't wait.
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 6
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2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose
of reviewing the progress of the Defined Services and Schedule
therein contained, and to provide direction and guidance to
achieve the objectives of this agreement. The City shall permit
access to its office facilities, files and records by Consultant
throughout the term of the agreement. In addition thereto, City
agrees to provide the information, data, items and materials set
forth on Exhibit A, Paragraph 10, and with the further
understanding that delay in the provision of these materials
beyond 30 days after authorization to proceed, shall constitute a
basis for the justifiable delay in the Consultant's performance
of this agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant
submitted to the City periodically as indicated in Exhibit A,
Paragraph 18, but in no event more frequently than monthly, on
the day of the period indicated in Exhibit A, Paragraph 18, City
shall compensate Consultant for all services rendered by Consult-
ant according to the terms and conditions set forth in Exhibit A,
Paragraph 11, adjacent to the governing compensation relationship
indicated by a "checkmark" next to the appropriate arrangement,
subject to the requirements for retention set forth in paragraph
19 of Exhibit A, and shall compensate Consultant for out of
pocket expenses as provided in Exhibit A, Paragraph 12.
All billings submitted by Consultant shall contain
sufficient information as to the propriety of the billing to
permit the City to evaluate that the amount due and payable
thereunder is proper, and shall specifically contain the City's
account number indicated on Exhibit A, Paragraph 18 (C) to be
charged upon making such payment.
3. Administration of Contract
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 7
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Each party designates the individuals ("Contract
Administrators") indicated on Exhibit A, Paragraph 13, as said
party's contract administrator who is authorized by said party to
represent them in the routine administration of this agreement.
4. Term.
This Agreement shall terminate when the Parties have
complied with all executory provisions hereof.
5. Liquidated Damages
The provisions of this section apply if a Liquidated Damages
Rate is provided in Exhibit A, Paragraph 14,
It is acknowledged by both parties that time is of the
essence in the completion of this Agreement. It is difficult to
estimate the amount of damages resulting from delay in per-
formance. The parties have used their judgment to arrive at a
reasonable amount to compensate for delay.
Failure to complete the Defined Services within the allotted
time period specified in this Agreement shall result in the
following penalty: For each consecutive calendar day in excess
of the time specified for the completion of the respective work
assignment or Deliverable, the consultant shall pay to the City,
or have withheld from monies due, the sum of Liquidated Damages
Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages
Rate").
Time extensions for delays beyond the consultant's control,
other than delays caused by the City, shall be requested in
writing to the City's Contract Administrator, or designee, prior
to the expiration of the specified time. Extensions of time,
when granted, will be based upon the effect of delays to the work
and will not be granted for delays to minor portions of work
unless it can be shown that such delays did or will delay the
progress of the work.
6. Financial Interests of Consultant
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 8
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A. Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as
an "FPPC filer", Consultant is deemed to be a "Consultant" for
the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the
City Clerk on the required Statement of Economic Interests in
such reporting categories as are specified in Paragraph 15 of
Exhibit A, or if none are specified, then as determined by the
City Attorney.
B, Decline to Participate.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to
know Consultant has a financial interest other than the
compensation promised by this Agreement.
C. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant warrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations
promulgated by the Fair Political Practices Commission, and has
determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with
Consultant's duties under this agreement.
D. Promise Not to Acquire Conflicting Interests,
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during
the term of this Agreement which would constitute a conflict of
interest as prohibited by the Fair political Practices Act.
E. Duty to Advise of Conflicting Interests.
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 9
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Regardless of whether Consultant is designated as an FPPC
?i:'er, Consultant further warrants and represents that Consultant
wi:'l immediately advise the City Attorney of City if Consultant
learns of an economic interest of Consultant's which may result
in a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
F, Specific warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant,
nor Consultant's immediate family members, nor Consultant's
employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in any property
which may be the subject matter of the Defined Services, or in
any property within 2 radial miles from the exterior boundaries
of any property which may be the subject matter of the Defined
Services, ("Prohibited Interest"), other than as listed in
Exhibit A, Paragraph 15,
Consultant further warrants and represents that no promise
of future employment, remuneration, consideration, gratuity or
other reward or gain has been made to Consultant or Consultant
Associates in connection with Consultant's performance of this
Agreement. Consultant promises to advise City of any such
promise that may be made during the Term of this Agreement, or
for 12 months thereafter.
Consultant agrees that Consultant Associates shall not
acquire any such Prohibited Interest within the Term of this
Agreement, or for 12 months after the expiration of this
Agreement, except with the written permission of City,
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City.
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold
harmless the City, its elected and appointed officers and
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 10
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employees, from and against all claims for damages, liability,
cost and expense (including without limitation attorneys' fees)
arising out of the conduct of the Consultant, or any agent or
employee, subcontractors, or others in connection with the
execution of the work covered by this Agreement, except only for
those claims arising from the sole negligence or sole willful
misconduct of the City, its officers, or employees. Consultant's
indemnification shall include any and all costs, expenses,
attorneys' fees and liability incurred by the City, its officers,
agents, or employees in defending against such claims, whether
the same proceed to judgment or not. Further, Consultant at its
own expense shall, upon written request by the City, defend any
such suit or action brought against the City, its officers,
agents, or employees. Consultants' indemnification of City shall
not be limited by any prior or subsequent declaration by the
Consultant,
8, Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a
timely and proper manner Consultant's obligations under this
Agreement, or if Consultant shall violate any of the covenants,
agreements or stipulations of this Agreement, City shall have the
right to terminate this Agreement by giving written notice to
Consultant of such termination and specifying the effective date
thereof at least five (5) days before the effective date of such
termination. In that event, all finished or unfinished documents,
data, studies, surveys, drawings, maps, reports and other
materials prepared by Consultant shall, at the option of the
City, become the property of the City, and Consultant shall be
entitled to receive just and equitable compensation for any work
satisfactorily completed on such documents and other materials up
to the effective date of Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused City by
Consultant's breach,
9. Errors and Omissions
In the event that the City Administrator determines that the
Consultants' negligence, errors, or omissions in the performance
of work under this Agreement has resulted in expense to City
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 11
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gyeater than would have resulted if there were no such
negligence, errors, omissions, Consultant shall reimburse City
foy any additional expenses incurred by the City. Nothing herein
is intended to limit City's rights under other provisions of this
agyeement.
10, Termination of Agreement for Convenience of City
City. may terminate this Agreement at any time and for any
reason, by giving specific written notice to Consultant of such
termination and specifying the effective date thereof, at least
thirty (30) days before the effective date of such termination.
In that event, all finished and unfinished documents and other
materials described hereinabove shall, at the option of the City,
become City's sole and exclusive property. If the Agreement is
terminated by City as provided in this paragraph, Consultant
shall be entitled to receive just and equitable compensation for
any satisfactory work completed on such documents and other
mateyials to the effective date of such termination, Consultant
hereby expressly waives any and all claims for damages or
compensation arising under this Agreement except as set forth
herein.
11. Assignability
The services of Consultant are personal to the City, and
Consultant shall not assign any interest in this Agreement, and
shall not transfer any interest in the same (whether by
assignment or novation), without prior written consent of City.
City hereby consents to the assignment of the portions of the
Defined Services identified in Exhibit A, Paragraph 17 to the
subconsultants identified thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and
exclusive property of City, No such materials or properties
produced in whole or in part under this Agreement shall be
subject to private use, copyrights or patent rights by Consultant
2pty11 . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 12
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i~ the United States or in any othe.r country withou~ the express
written consent of City. City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions
of the Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports,
studies, data, statistics, forms or other materials or properties
produced under this Agreement.
13. Independent Contractor
City is interested only in the results obtained and
Consultant shall perform as an independent contractor with sole
control of the manner and means of performing the services
required under this Agreement. City maintains the right only to
reject or accept Consultant's work products. Consultant and any
of the Consultant's agents, employees or representatives are, for
all purposes under this Agreement, an independent contractor and
shall not be deemed to be an employee of City, and none of them
shall be entitled to any benefits to which City employees are
entitled including but not limited to, overtime, retirement
benefits, worker's compensation benefits, injury leave or other
leave benefits, Therefore, City will not withhold state or
federal income tax, social security tax or any other payroll tax,
and Consultant shall be solely responsible for the payment of
same and shall hold the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this
agreement, against the City unless a claim has first been
presented in writing and filed with the City and acted upon by
the City in accordance with the procedures set forth in Chapter
1.34 of the Chula Vista Municipal Code, as same may from time to
time be amended, the provisions of which are incorporated by this
reference as if fully set forth herein, and such policies and
procedures used by the City in the implementation of same.
Upon request by City, Consultant shall meet and confer in
good faith with City for the purpose of resolving any dispute
over the terms of this Agreement.
2pty11.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 13
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15. Attorney's Fees
Should a dispute arising out of this Agreement result in
litigation, it is agreed that the prevailing party shall be
entitled to recover all reasonable costs incurred in the defense
of the claim, including costs and attorney's fees.
16. Statement of Costs
In the event that Consultant prepares a report or document,
or participates in the preparation of a report or document in
performing the Defined Services, Consultant shall include, or
cause the inclusion of, in said report or document, a statement
of the numbers and cost in dollar amounts of all contracts and
subcontracts relating to the preparation of the report or
document.
17. Miscellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consult-
ant shall have no authority to act as City's agent to bind City
to any contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the
Consultant and/or their principals is/are licensed with the State
of California or some other state as a licensed real estate
broker or salesperson. Otherwise, Consultant represents that
neither Consultant, nor their principals are licensed real estate
brokers or salespersons.
C. Notices
All notices, demands or requests provided for or permitted
to be given pursuant to this Agreement must be in writing. All
notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served
or deposited in the United States mail, addressed to such party,
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 14
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postage prepaià, registereà or certifieà, with return receipt
requesteà, at the addresses identified herein as the places of
business for each of the designated parties.
D. Entire Agreement
This Agreement, together with any other written document
referred to or contemplated herein, emboày the entire Agreement
and understanding between the parties relating to the subject
matter hereof, Neither this Agreement nor any provision hereof
may be amenàeà, modified, waived or àischargeà except by an
instrument in writing executeà by the party against which
enforcement of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and
represents to the other party that it has legal authority and
capacity and direction from its principal to enter into this
Agreement, anà that all resolutions or other actions have been
taken so as to enable it to enter into this Agreement.
F, Governing Law/Venue
This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Any action
arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State
of California, and if applicable, the City of Chula Vista, or as
close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
[end of page. next page is signature page.]
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 15
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Signature Page
to
Agreement between City of Chula Vista and David Taussig &
Associates, Inc.
for Community Facilities District Assessment Engineering Services
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
Dated: , 19 City of Chula Vista
-
by:
Shirley Horton, Mayor
Attest:
Beverly Authelet, City Clerk
Approved as to form:
John M. Kaheny, City Attorney
Dated:
David Tauss1. nt
Exhibit List to Agreement
( X ) Exhibit A.
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 16
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Exhibit A
to
Agreement between
City of Chula Vista
David Taussig and Associates, Inc.
1. Effective Date of Agreement:
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation
of the State of California
( ) Redevelopment Agency of the City of Chula Vista, a
political subdivision of the State of California
( ) Industrial Development Authority of the City of Chula
Vista, a
( ) Other: , a
[insert business form]
("City")
3. Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant: David Taussig & Associates, Inc.
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
1301 Dove Street, Suite 600
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 17
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Newport Beach, California 92660
Voice Phone (714) 752-1554
Fax phone (714) 752-4058
7. General Duties:
David Taussig & Associates, Inc, shall provide all special
tax consulting services necessary for the formation of a
Community Facilities District ("CFD No. 97-3") to fund public
infrastructure for the McMillin Otay Ranch project (the
"Project"). CFD No.97-03 will finance public improvements which
will ultimately be owned and maintained by the City and/or other
public agencies.
8, Scope of Work and Schedule:
A. Detailed Scope of Work:
Task 1. Feasibility Studv
David Taussig & Associates, Inc, shall prepare a feasibility
study for future financing by the City of the proposed public
infrastructure in the Project. This task shall consist of the
following subtasks:
A. Background Research: Collect available data, such as
County Assessor information for each parcel, land use
and zoning information, future development information,
Assessor's parcel maps, description of improvements to
be funded, construction cost estimates, and other data
which is pertinent to the project.
Data necessary for the Feasibility Study shall be
provided by the City and the Project Landowner with the
assistance of David Taussig & Associates, Inc.. The
City and the Project Landowner are responsible for
verifying data describing types of projected
development, improved property values, development
absorption rates and net taxable acreage.
2ptyll ,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 18
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B. Description of Public Improvements: Provide a
description of each improvement to be financed by the
CFD. Descriptions are to be based on final or
preliminary engineering plans provided by the Project
Landowner and shall be of sufficient detail to allow
preliminary cost estimates to be prepared,
C. Review Cost Estimates: Analyze and provide comments on
the cost estimates for each proposed facility. Provide
revised estimates for financing costs, if appropriate.
D. Special Tax Analysis: Prepare spread of special taxes
(the "Tax Spread") based on building square footage
and/or acreage, Determine method of apportionment and
calculate the maximum special taxes necessary to
support the proposed financing. Estimate a=ual
special and total property taxes as a percentage of
anticipated improved property values. David Taussig &
Associates, Inc. shall prepare up to a total of five
Tax Spreads, utilizing various absorption, cost and
bond assumptions,
E. Preliminary Value to Lien Analysis: Calculate the
estimated value to lien ratio for the project based on
assessed/appraised values, and proposed and existing
bonded indebtedness. David Taussig & Associates, Inc.
shall rely on assessed values, unless appraised values
are provided by the City or the Appraiser.
F. Max~um Bonding Capacity: Determine maximum bonding
capacity based on value to lien, maximum tax, project
phasing, and other considerations.
G. Meetings: Attend up to 10 meetings with City staff,
other consultants, and property owners.
Task 1 Deliverables: Mello-Roos Feasibility Study,
Mello-Roos Special Tax Spreads,
Value to Lien Analysis
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 19
/¿J,13
Task 2.1 Notice to Proceed to Resolution of Intention
David Taussig & Associates, Inc. shall assist in all activities
necessary to submit a Resolution of Intention for approval by the
City. This task shall include the following subtasks:
A, Background Research: Gather research materials, maps,
Assessor's parcel information, direct and indirect cost
estimates and related data as required, Verify district
improvement areas or tax rate zones, if requested.
B. Rate and Method of Apportionment: Prepare Rate and
Method of Apportionment of Special Taxes.
C. Boundary Map: Prepare CFD Boundary Map.
D. Preliminary Special Tax Report: Prepare preliminary
Special Tax Report including estimated costs,
incidental expenses, method of apportionment, and
description of facilities.
E. Special Tax Analysis: Prepare up to 10 additional
Mello-Roos Special Tax Spreads, utilizing various
absorption, cost and bond assumptions.
F, Meetings: Attend City Council meeting regarding the
Resolution of Intention and up to two additional
meetings with City staff, consultants and property
owners.
Task 2.1 Deliverables: Rate and Method of Apportionment,
Boundary Map, Preliminary Special Tax
Report, Mello-Roos Special Tax Spreads
Task 2.2 Resolution of Intention to Bond Sale
David Taussig & Associates, Inc. shall assist in all activities
necessary to successfully form a Mello-Roos Community Facilities
District, from the Resolution of Intention through the first bond
sale. This task shall include the following subtasks:
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 20
1$-1/
A. Recordation of Boundary Map: Record the CFD Boundary
Map with the responsible local official and the County
Recorder.
B. Ballot: Label and mail notice and ballot to each
property owner within the boundary of the proposed
district.
C. Special Tax Report: Update and amend the Special Tax
Report to reflect final cost estimates.
D. Amended Boundary Map: Amend the CFD boundary map, if
necessary.
E. Final Special Tax Report: Prepare Final Special Tax
Report for City Council Approval.
F. Tabulate Returned Ballots: Calculate percentage of
property owner protest and tabulate the returned
ballots.
G. Assist with Official Statement: Prepare tables and
other information required by the Underwriter for
inclusion in the Official Statement.
H. Certificate of Special Tax Consultant: Prepare and
execute a Special Tax Consultant Certificate confirming
the adequacy of special taxes to meet debt service
requirements for first bond issue. If applicable,
David Taussig & Associates, Inc. shall require an
executed landowner information certificate from each
Project Landowner confirming net taxable acreage and
other relevant data prior to executing the Special Tax
Consultant Certificate,
1. Meetings: Attend City Council meeting regarding the
Resolution of Formation.
Task 2.2 Deliverables: Rate and Method of Apportionment,
Boundary Map, Preliminary Special Tax
Report
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 21
1¿fJ-15'
Task 3 Facilities Utilization Maus (crotiona1\
Subject to prior approval of the City Engineer, Consultant shall
prepare a map for each proposed facility of type of facility
which shows its utilization area.
Task 4 Additional Meetinas (crotional)
Subject to prior approval of the City Engineer, Consultant shall
attend additional meetings (beyond the 7 listed in the scope of
work) up to a total of 80 additional hours of meetings at a rate
of $125 per hour
Task 5 Additional Tax Sureads (crotional)
Subject to prior approval of the City Engineer, Consultant shall
prepare additional taxspreads (beyond the 15 listed in the scope
of work) up to a total of 20 additional taxspreads at a rate of
$500 per taxspread.
B. Date for Commencement of Consultant Services:
( ) Same as Effective Date of Agreement
(X) Other: Upon written notice to proceed from the City
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1: nla
Deliverable No. 2: nla
Deliverable No, 3: nla
D. Date for completion of all Consultant services:
9. Insurance Requirements:
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 22
JtJ..-'1~
(X) Statutory Worker's Compensation Insurance
(x) Employer's Liability Insurance coverage: $1,000,000.
(x) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required
(included in Commercial General Liability coverage),
(X) Errors and Omissions Insurance: $250,000 (not included
in Commercial General Liability coverage),
10. Materials Required to be Supplied by City to Consultant:
11. Compensation:
A. (X) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant
as herein required, City shall pay a single fixed fee in the
amounts and at the times or milestones or for the Deliverables
set forth below:
Single Fixed Fee Amount: $33,700, payable as follows:
MilQstone or Event or Deliverable Amount or Percent of Fixed Fee
City Engineer's approval of Task 1 $14,200
City Engineer's approval Task 2.1 $12,500
City Engineer's approval Task 2.2 $7,000
Optional Services:
Milestone A!J!QJmt.
City Engineer's Certification of Task 3 Not to exceed $4,500
City Engineer's Certification of Task 4 Not to exceed $10,000
City Engineer's Certification of Task 5 Not to exceed $9,600
The fees for the optional service shall be payable at the
completion of the applicable task 1, 2.1, or 2,2, which includes
performance of said optional services.
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 23
/?9 /9?
( ) 1. Interim Monthly Advances. The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end
of each phase only the compensation for that phase
has been paid. Any payments made hereunder shall
be considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that
phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each
interim payment such that, at the end of the
phase, the full retention has been held back from
the compensation due for that phase. Percentage
of completion of a phase shall be assessed in the
sole and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by
the City that has been provided, but in no event
shall such interim advance payment be made unless
the Contractor shall have represented in writing
that said percentage of completion of the phase
has been performed by the Contractor. The
practice of making interim monthly advances shall
not convert this agreement to a time and materials
basis of payment.
B. ( ) Phased Fixed Fee Arrangement,
For the performance of each phase or portion of the Defined
Services by Consultant as are separately identified below, City
shall pay the fixed fee associated with each phase of Services,
in the amounts and at the times or milestones or Deliverables set
forth Consultant shall not commence Services under any Phase,
and shall not be entitled to the compensation for a Phase, unless
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 24
/ð-tr
City shall have issued a notice to proceed to Consultant as to
said Phase.
Phase Fee for Said Phase
( ) 1. Interim Monthly Advances, The City shall make
interim monthly advances against the compensation
due for each phase on a percentage of completion
basis for each given phase such that, at the end
of each phase only the compensation for that phase
has been paid. Any payments made hereunder shall
be considered as interest free loans which must be
returned to the City if the Phase is not
satisfactorily completed, If the Phase is
satisfactorily completed, the City shall receive
credit against the compensation due for that
phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each
interim payment such that, at the end of the
phase, the full retention has been held back from
the compensation due for that phase. Percentage
of completion of a phase shall be assessed in the
sole and unfettered discretion by the Contracts
Administrator designated herein by the City, or
such other person as the City Manager shall
designate, but only upon such proof demanded by
the City that has been provided, but in no event
shall such interim advance payment be made unless
the Contractor shall have represented in writing
that said percentage of completion of the phase
has been performed by the Contractor. The
practice of making interim monthly advances shall
not convert this agreement to a time and materials
basis of payment.
C. ( ) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as
herein required, City shall pay Consultant for the productive
hours of time spent by Consultant in the performance of said
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 25
/¿/J-<J?
Services, at the rates or amounts set forth in the Rate Schedule
he~einbelow according to the following te~s and conditions:
(1) ( ) Not-to-Exceed Limitation on Time and
Materials Arrangement
Notwithstanding the expenditure by Consultant of
time and materials in excess of said Maximum
Compensation amount, Consultant agrees that Consultant
will perform all of the Defined Services herein
required of Consultant for $ including
all Materials, and other "reimbursables" ( "Maximum
Compensation") .
(2) ( ) Limitation without Further Authorization on
Time and Materials Arrangement
At such time as Consultant shall have incurred
time and materials equal to
("Authorization Limit"), Consultant shall not be
entitled to any additional compensation without further
authorization issued in writing and approved by the
City. Nothing herein shall preclude Consultant from
providing additional Services at Consultant's own cost
and expense.
Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 26
j¿)-/¿Jé?
( ) Hourly rates may increase by 6% for services
rendered after [month], 19 , if delay in
providing services is caused by City.
12. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by
Consultant in the performance of services herein required, City
shall pay Consultant at the rates or amounts set forth below:
(X) None, the compensation includes all costs.
Cost or Rate
( ) Reports, not to exceed $ _ :
( ) Copies, not to exceed $ _ :
( ) Travel, not to exceed $ _ :
( ) Printing, not to exceed $ _ :
( ) Postage, not to exceed $ _ :
( ) Delivery, not to exceed $ _ :
( ) Long Distance Telephone Charges,
not to exceed $ -
( ) Other Actual Identifiable Direct Costs:
not to exceed $ :
, not to exceed $ :
13. Contract Administrators:
City: Alex AI-Agha, Senior Civil Engineer
Consultant: Andrea Roess, project Manager
14. Liquidated Damages Rate:
( ) $ - per day.
( ) Other:
15. Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
( x) Not Applicable - Not an FPPC Filer.
2ptyll ,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 27
jtJ--/tflJ
( ) FPPC Filer
( ) Category No. 1. Investments and sources of
income.
( ) Category No. 2. Interests in real property.
( ) Category No. 3. Investments, interest in real
property and sources of income subject to the
regulatory, permit or licensing authority of the
department.
( ) Category No. 4. Investments in business entities
and sources of income which engage in land
development, construction or the acquisition or
sale of real property.
( ) Category No. 5. Investments in business entities
and sources of income of the type which, within
the past two years, have contracted with the City
of Chula Vista (Redevelopment Agency) to provide
services, supplies, materials, machinery or
equipment.
( ) Category No. 6. Investments in business entities
and sources of income of the type which, within
the past two years, have contracted with the
designated employee's department to provide
services, supplies, materials, machinery or
equipment.
( ) Category No. 7. Business positions,
( ) List "Consultant Associates" interests in real property
within 2 radial miles of Project Property, if any:
2ptyll . wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 28
léJ-/tJ2
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
GFB-Friedrich & Associates
18. Bill Processing:
A. Consultant's Billing to be submitted for the following
period of time:
( ) Monthly
( ) Quarterly
(X) Other: Upon Completion of Each milestone
B. Day of the Period for submission of Consultant's
Billing: ( ) First of the Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other:
C. City's Account Number:
19. Security for Performance
( ) Performance Bond, $
( ) Letter of Credit, $
( ) Other Security:
Type:
Amount: $
( ) Retention. If this space is checked, then
notwithstanding other provisions to the contrary
requiring the payment of compensation to the Consultant
sooner, the City shall be entitled to retain, at their
option, either the following "Retention Percentage" or
"Retention Amount" until the City determines that the
Retention Release Event, listed below, has occurred:
( ) Retention Percentage: - %
( ) Retention Amount: $
Retention Release Event:
2ptyll ,wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 29
/¿;~/¿J J
( ) Completion of All Consultant Services
( ) Other:
2ptyll.wp Standard Form Two Party Agreement (Sixth Revision)
July 1, 1997 Page 30
/tJ~/tfJ.y
COUNCIL AGENDA STATEMENT
Item JJ
:.Ç Meeting Date~
ITEM TITLE: R 1. 19¿;"Z Or . tì dr.
eso utlOn antmg an easement or atnage purposes across
City-owned property at Ada Street and Industrial Boulevard to Trolley
Terrace Townhomes Partnership
SUBMITTED BY: D;rectct ofPobli< Wcth ~
REVIEWED BY: City ManageryR Þð ~ \ (4/Sths Vote: Yes - NoX)
Trolley Terrace Townhomes Partnership, an affiliate of South Bay Community Services (SBCS) is
developing a parcel of land at 750 Ada Street. It proposes to build several multi-residential units.
The City of Chula Vista owns the adjoining property to the east (see Exhibit "A"). In order to
adequately drain the lot, pennission has been requested from the City to place a pipe across the north
property line and drain to Industrial Boulevard. To allow this to be done, an easement should be
granted. Council must adopt a resolution granting such an easement.
RECOMMENDATION: That Council adopt the subject resolution granting a five-foot-wide
drainage easement across City-owned property and direct the Mayor to sign the grant deed on behalf
of the City.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The South Bay Community Services recently submitted plans to build a 19-unit apartment complex
on its property at 750 Ada Street. As part of the project, the grade of the lot is proposed to collect
the stonnwater at the northerly portion of the lot and drain it easterly, instead of allowing it continue
to sheet-flow across the parcels to the north, as it does now. SBCS's intention is to install catch
basins in its proposed parking lot, with a twelve-inch pipe carrying the water through the City's
parcel.
There was a meeting held to discuss this matter between City and SBCS staffs. City staff asked for
and received supporting materials in order to make a detennination as to what impacts this proposal
would have on the City's property and on the Industrial Boulevard right-of-way. .The minimal
adverse impacts are outweighed by the fact that the properties to the north will no longer be
receiving the nmofffrom SBCS's property. In fact, the nmoffwould be increased by virtue of the
development (i.e., paved parking lot, roofs of building, etc.) This additional drainage would be
JJ-J
Page 2, Item-
Meeting Date 6/2/98
carried to Industrial Boulevard and head south to a curb inlet. Another benefit is that the pipe being
installed through the City's parcel may also be used to drain the parcel as it is developed.
By granting a drainage easement, SBCS and its successors in interest will be guaranteed continuous
use of the City's property as a drainage course. The easement will be five feet wide and
approximately 88 feet long, comprising about 440 square feet.
The legal description for the easement has been reviewed and found to be correct by Engineering
staff and the language in the grant deed has be reviewed and approved by the City Attorney's office.
FISCAL IMPACT: Due to the nature of this matter involving a governmental entity, staff
recommends that no fees be required trom SBCS for the easement or its processing.
Attachments: Exhibit "A" showing location of easement
Engineering Division File No. 0490-60-PF-258
H,IHOMElENGINEERIAGENDA \ADA - ESMf.JWH
)/;--2.
RESOLUTION NO. /9t?~
-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA GRANTING AN EASEMENT FOR DRAINAGE
PURPOSES ACROSS CITY-OWNED PROPERTY AT ADA
STREET AND INDUSTRIAL BOULEVARD TO TROLLEY
TERRACE TOWNHOMES PARTNERSHIP
WHEREAS, Trolley Terrace Townhomes partnership, an
affiliate of South Bay Community Services (SBCS) is developing a
parcel of land at 750 Ada Street and proposing to build several
affordable multi-residential units (the "Project"); and
WHEREAS, the City of Chula vista owns the adjoining
property to the east; and
WHEREAS, in order to adequately drain the lot, permission
has been requested from the City to place a pipe across the north
property line and drain to Industrial Boulevard; and
WHEREAS, the grant of the easement shall serve the public
interests of the City by facilitating the development of the
Project which shall provide high-quality affordable housing for
low-income families.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
ci ty of Chula vista does hereby grant an easement for drainage
purposes across City-owned property at Ada Street to Trolley
Terrace Townhomes Partnership on the terms set forth in that
certain Grant of Easement document approved as to form by the City
Attorney.
BE IT FURTHER RESOLVED that the Mayor is hereby
authorized to sign the Grant of Easement on behalf of the City of
Chula vista.
Presented by Approved as to form by
'"
John P. Lippitt, Director of
Public Works
c: 'rs'sbes.sss
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EXHIBIT ///'1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Trolley Terrace Townhomes
Limited Partnership
c/o South Bay Community Services
Attn: Executive Director
315 Fourth Avenue, suite E
Chula vista, CA 91910
GRANT OF EASEMENT
This Grant of Easement is entered into effective as of May 27,
1998, by and between the City of Chula Vista, a chartered municipal
corporation of the State of California ("Grantor") and Trolley
Terrace Townhomes Limited Partnership, a California limited
partnership ("Grantee"),
RECITALS
A. Grantor and South Bay Community Services, a California
nonprofit public benefit corporation ("SBCS") have entered into an
Amended and Restated Conveyance Agreement and Escrow Instructions
dated March 18, 1997, as amended effective October 21, 1997 (the
"Conveyance Agreement") pursuant to which Grantor conveyed to SBCS
certain real property commonly known as and located at 750 Ada
Street, Chula Vista, California, as legally described on Exhibit
"A" attached hereto and incorporated herein by this reference
(hereinafter the "Dominant Tenement").
B, In furtherance of the Conveyance Agreement, Grantor and
SBCS have entered into a Disposition and Development Agreement/HOME
Program Participation Agreement (the "DDA") dated October 21, 1997
the purpose of which is to effectuate the development of the
Dominant Tenement into a eighteen (18) unit affordable housing
pròject ("Project") as more particularly described in the DDA.
C. SBCS has assigned and delegated to Grantee all of the
rights and obligations of SBCS under the Conveyance Agreement and
the DDA pursuant to an Assignment, Assumption and Consent Agreement
dated November 17, 1997.
D. Grantor is the owner of that certain real property which
is immediately to the east of the Dominant Tenement, as is legally
described on Exhibit "B" attached hereto and incorporated herein by
this reference (the "Servient Tenement").
E. In order to facilitate the development of the Project,
Grantor has agreed to grant to Grantee the easement described
herein.
//--5
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Grant of Easement. For valuable consideration, subject
to the terms and conditions set forth herein, Grantor hereby grants
to Grantee a non-exclusive easement and right of way to construct,
reconstruct, maintain, operate and repair a drain or drains
including any and all appurtenances thereto, together with the
right of ingress and egress, over, under, along and across all of
that portion of the Servient Tenement hereinafter described.
2. Description and Location of Easement. The easement
granted herein is legally described on Exhibit "c" attached hereto
and incorporated herein by this reference. The general location of
the easement is depicted on the map attached hereto as Exhibit "D"
and incorporated herein,
3. Installation of Connections, Grantor hereby reserves the
right to install, and Grantee hereby agrees to allow, connection(s)
within the easement herein described to facilitate drainage of
storm water collecting on the servient Tenement,
4. Approval of Drainaqe Improvements. Prior to commencing
the construction of any drainage improvements (" Drainage
Improvements") on the easement, Grantee shall obtain Grantor's
approval of the plans and specifications therefor; Grantee shall
strictly comply with any conditiòns of approval imposed by Grantor.
5. Insurance, Grantee shall obtain and keep in effect for
the term of this easement, occurrence based comprehensive general
liability insurance, in the minimum coverage amount of $1,000,000
in a form approved by Grantor, naming Grantor as an additional
insured, insuring Grantee and Grantor against any and all risks
occasioned by the construction, maintenance and existence of the
Drainage Improvements on the easement,
6. Indemnification. Grantee agrees to indemnify, protect,
defend and hold harmless Grantor, its appointed officials,
officers, employees, agents and representatives, any successors and
assigns thereof, from and against any and all liabilities, losses,
damages, fees and costs, including reasonable attorneys fees and
court costs (collectively, "Losses"), arising from Grantee's, or
any third party's, actions or omissions in connection with the
granting of this easement, or the construction, maintenance or
existence of the Drainage Improvements thereon, excluding any
Losses caused by the sole negligence or willful misconduct of
Grantor.
7. Modification/Relocation of Drainaqe Improvements.
Grantor reserves the right to require Grantor, at Grantor's sole
cost, to modify or relocate the Drainage Improvements if Grantor
Z\ 18XVA -2-
I)~~
determines in its reasonable discretion, that such action is
necessary (a) to allow Grantor, or any successor thereto, to
develop the Servient Tenement, or (b) to serve the public health,
safety or welfare. Grantee Agrees to complete such relocation or
modification within 60 days after written notice from Grantor, or
if such modification or relocation cannot be reasonably completed
within such time frame, as soon as reasonably possible thereafter.
8. Bindinq Effect. This instrument shall be binding on and
shall enure to the benefit of the successors, transferees, and
assigns of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
"GRANTOR" "TROLLEY TERRACE"
CITY OF CHULA VISTA, TROLLEY TERRACE TOWNHOMES
a chartered municipal LIMITED PARTNERSHIP, a
corporation of the State California limited partnership
of California
By: SOUTH BAY COMMUNITY
SERVICES, a California
By: ~Ofit public benefit
Shirley Horton, Mayor ~ion, its ge~ral
ATTEST: By' ~:ÚØi~?¿r
/ Ka/~ry~ LemJ;>o, .
C.ity Clerk .' EXecutJ.ve DJ.rector
Approved as to form by
Z'1BXVA -3-
//-;;
EXHIBIT "A"
ALL THAT PORTION OF LOTS 5, 6 AND 7 OF FAIRFIELD MAP NO. 1349,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY
JULY 15, 1911, LOCATED IN THE CITY OF CHULA VISTA, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA;
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 5, THENCE NORTH
82 58'34" WEST, 351,44 FEET TO THE TRUE POINT OF BEGINNING;
1. THENCE SOUTH 82 58'34" EAST, 263.00 FEET;
2. THENCE SOUTH 06 57'08" WEST, 199.95 FEET;
3. THENCE NORTH 83 02'52" WEST, 263.00 FEET;
4, THENCE NORTH 06 57'08" EAST, 200.28 FEET TO THE TRUE POINT
OF BEGINNING.
Z\18XVA
//-6
EXHIBIT "B"
ALL THAT PORTION OF LOTS 5 AND 6 OF FAIRFIELD MAP NO. 1349, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JULY 15,
1911, LOCATED IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA;
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 5, SAID POINT
BEING THE TRUE POINT OF BEGINNING;
1. THENCE SOUTH 17 48'43" EAST, 143.67 FEET TO A POINT ON A
TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF
5610 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS
NORTH 72 11'17" EAST;
2. THENCE SOUTHEASTERLY ALONG SAID 5610 FOOT RADIUS CURVE
THROUGH A CENTRAL ANGLE OF 0 15'56" AN ARC DISTANCE OF 26.00
FEET TO A POINT ON A TANGENT COMPOUND CURVE CONCAVE
NORTHWESTERLY, HAVING A RADIUS OF 32,34 FEET, A RADIAL LINE
OF SAID CURVE TO SAID POINT BEARS NORTH 72 27'13" EAST;
3. THENCE SOUTHWESTERLY ALONG SAID 32.34 RADIUS CURVE THROUGH A
CENTRAL ANGLE OF 114 30'19" AN ARC DISTANCE OF 64.63 FEET;
4, THENCE TANGENT FROM SAID 32.34 RADIUS CURVE NORTH 83 02'52"
WEST, 130.02 FEET;
5. THENCE NORTH 06 57'08" EAST, 199.95 FEET;
6. THENCE SOUTH 82 58'34" EAST, 88.44 FEET TO THE TRUE POINT OF
BEGINNING,
Z\ 18XVA
//-9
EXHIBIT "C"
BEGINNING AT THE NORTHEASTERLY CORNER OF LOT 5 OF FAIRFIELD MAP
NO. 1349, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY JULY 15, 1911, LOCATED IN THE CITY OF CHULA VISTA, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, SAID POINT BEING THE TRUE
POINT OF BEGINNING;
1. THENCE NORTH 82 58'34" WEST, 88.44 FEET;
2. THENCE SOUTH 06 57'08" WEST, 5.00 FEET;
3. THENCE SOUTH 82 58'34" EAST, 90.75 FEET;
4. THENCE NORTH 17 48'43" WEST, 5.51 FEET TO THE TRUE POINT OF
BEGINNING.
THE AREA OF EASEMENT IS 447.97 SQ.FT. OR 0.01 ACRES MORE OR LESS.
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COUNCILAGENDASTATEMENT \, .\1J ,\\
Jo'. /;
f'\J" Item /øZ \\"
Meeting Date...6LlL28.
ITEM TITLE: Report on the Application for the fonnation of Community Facilities
District No. 97-3 (Otay Ranch McMillin SPA One)
Resolution /9 tJ.:< ¿, Approving the initiation of proceedings to consider
the formation of a Community Facilities District for Otay Ranch McMillin
SPA One
SUBMITTED BY: Director of Public Works ry;J
REVIEWED BY: City Manager ~V (4/Sths Vote: Yes-X.No->
Otay Ranch McMillin has formally petition the City to form a Community Facilities District
(CFD) pursuant to the Mello-Roos Act of 1982 for financing the construction and/or acquisition
of certain public improvements serving the Otay Ranch McMillin SPA One project. In keeping
with Council policy, the developer has submitted an Application containing infonnation required
for reviewing the feasibility of the proposed CFD. Staff has reviewed the Application and
determined that the fInancial information provided is preliminary and general in nature and that
a complete analysis on the fmancial feasibility of the project can not be made at this time.
Compliance with Council policy can not be confmned until various documents such as appraisal,
market absorption study, disclosure form, Special Tax Report, Preliminary Official Statement, etc.
are complete. These documents will be prepared during the district proceedings and brought to
Council consideration prior to bond sale. Staff considers that this process will provide adequate
infonnation ensuring that the developer has the fInancial ability to bring the project to completion
within City's criteria. Therefore, staff is recommending that Council accept the report and initiate
the formal proceedings for the proposed CFD.
RECOMMENDATION: It is recommended that Council: 1) Accept the report on the Application
for the formation of Community Facilities District No. 97-3, 2) Approve the resolution initiating
proceedings for the formation of a Community Facilities District for Otay Ranch McMillin SPA
One, and 3) Do not allow the use of CFD financing for Public Parks.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
The "Mello-Roos Act" allows for the creation of Community Facilities Districts and the issuance
of bonds to provide for financing the construction and/or acquisition of public facilities needed for
the development. In addition, a CFD may also finance a broad range of services, including fire,
flood control maintenance, landscaping, library, open-space facilities, parks, parkways, recreational
);¿ ~/
Page 2, Item -
Meeting Date 6/2/98
services and school facilities maintenance. Any public facilities which the City may own, operate
or contribute money to, and which have a useful life of five or more years, are eligible to be
financed through a CFD. Debt services on the bonds are met through the imposition of a Special
Tax (explicitly not ad valorem) on properties solely within the CFD. The special tax is collected with
the property taxes. There is no direct cost to the City. All expenses related to the district
administration (including levying and collecting the special taxes) are funded by the district. The
ultimate security behind the bonds would be the properties located within the district, llQ1 the
City's General Fund or its ability to tax property within its jurisdiction.
On January 13, 1998, Council adopted the "City of Chula Vista statement of goals and policies
regarding the establishment of Community Facilities Districts". The purpose of this document is
to provide guidelines for the use of CFDs for financing the construction or acquisition of public
infrastructure or the provision of authorized public services to benefit and serve existing or new
development in the City.
Procedure for formation of Communi~ Facilities District
Following are the key actions thaI Council would perform during the proceedings for CFD No.
97-3.
1. Retention of the consultant team (Special Tax Consultant, Financial Advisor, and Bond
Counsel). This item is before Council tonight.
2. Approval of the report on the Application and initiation of proceedings for formation of
the proposed CFD. These actions are the subject of this agenda item.
3. Approval of Resolution of Intention (ROI) to establish the CFD. The Mello-Roos Act
requires that the City Council shall adopt the ROI within 90 days of receiving a petition.
Staff anticipates bringing the ROI before Council by August 1998.
4. Public Hearing, voter's election, and levy of the special taxes by September 1998.
5. Bond Sale during the last quarter of 1998.
Description of the proposed CFD No 97-3
Exhibit 1 presents the boundaries of the proposed CFD which includes all parcels located within the
Otay Ranch McMillin SPA One (total acreage =290). At buildout, the district would contain a total
of 538 Single Family Residences, 160 Attached Residences, 776 Multifamily Residences, 3 Acres of
commercial and 5 Acres for Community Purpose Facilities (churches, day care, etc.). McMillin is
proposing CFD fmancing of the following improvements:
. La Media Road, from Telegraph Canyon Road to Olympic Parkway.
. East Palomar Street, within the subdivision boundaries
/02-,2
Page 3, Item -
Meeting Date 6/2/98
. Olympic Parkway, within the subdivision boundaries
. Santa Cora Avenue in its entirety
. The pedestrian bridge over La Media Road
. All public parks associated with the project (P6, P7, P9)
The construction cost of these improvements is estimated at $12,775,244 of which only $8,241,955
the developer is proposing for CFD financing. The location of these improvements is presented in
Exhibit 1.
Bonds are proposed to be issued pursuant to the Improvement Bond Act of 1915. A total of
$10,432,855 is proposed to be taxed to the district. $8,241,955 will provide for the construction of
the proposed backbone facilities (grading, landscaping, street, utilities, drainage, sewer, potable
water, and reclaimed water). The remaining $2,190,900 will be used to fund a reserve fund and pay
district formation and bond issuance costs.
Rt:P°rt on the Application for CFD. No. 97-3
Council Policy requires that prior to Council initiating any formal proceedings for formation of
the CFD, developer shall submit an "Application", which would include all the necessary
information (business plan, percent of ownership requesting the CFD, etc.) demonstrating the
applicant's [mancial ability to carry the project. The policy also requires that the Application shall
be reviewed by a committee composed of the City Manager, City Attorney, Director of Public
Works, City Engineer, Planning Director, Finance Director and such additional persons as the
City Manager deems necessary.
Normally, consultants would be hired first and then participate in the review of the Application.
In this case, with the purpose of expediting the CFD proceedings to meet their development schedule,
McMillin asked for an early participation of the consultants for the review ofthe Application. Staff
approved the request with the condition that the developer submit a letter assuming full
responsibility for paying the consultants in the event Council does not approve the corresponding
agreements. Said letter was submitted on August 8, 1997. The consultants have also submitted
letters acknowledging that, in the event the agreements are not approved, they would not pursue
any monetary compensation from the City for reviewing the Application.
McMillin submitted a Finance Plan on March 13, 1998 (See Exhibit 2). The review committee
and consultants met with the developer on April 17, 1998 to discuss the Finance Plan and clarify
the intent of the Council policy, determine the format of the Application, and identify the required
financial information. McMillin submitted the Application on April 29, 1998 (See Exhibit 3).
The review committee met on May 5, 1998 to review the content of the Application as to
compliance with the policy and determine the applicant's [mancial ability to successfully construct
the project and pay the special taxes during buildout. The report with findings and
recommendation on the Application is presented in Exhibit 4.
/;¿~3
Page 4, Item-
Meeting Date 6/2/98
In essence, the report recommends that Council approve proceeding with the formation of the
Community Facilities District. This recommendation is based on the preliminary information
submitted by the applicant. Extensive due diligence will be required as the district proceeds to
ensure compliance with the Council policy. All Council policy requirements must be met prior
to the issuance of bonds.
Discussion of Key Policy Issues
The analysis of the Application is based on information provided by the developer. During the
proceedings, several analysis will be performed to ensure that the proposed CFD conforms to the
requirements of the Mello-Roos Act and Council Policy. Following is a brief discussion on how
some key policy issues will be addressed during the district proceedings:
1. PrQposed Improvements: Improvements to be fmanced are primarily backbone streets and
associated improvements (i.e., sewer, potable water, reclaimed water, dry utilities)
providing local or regional benefit. The developer is also proposing the fmancing of a
pedestrian bridge, and backbone utilities. Staff considers that all these improvements meet
the requirement of the policy.
McMillin is also requesting that the construction of the public parks be included in the
CFD. Traditionally, the construction of public parks has been funded by fees that are
collected at fmal map approval. In many cases the developer would build a turnkey park
and turn it over to the City, receiving fee credits for the cost of the facility.
Staff has considered this request and has developed the following pros and cons:
Pros:
1. Allows the park construction to be funded up front and built all at once instead of
piecemeal or in phases. More complete facilities can be built earlier for the
residents.
Cons:
1. The City has never used assessment districts in the past to construct parks.
2. The City has used turnkey parks in the past with Rancho del Rey, and Eastlake and
it has worked well.
3. Most of the new houses in the eastern area have assessments for infrastructure, and
schools, but not parks. The new residents would have parks on their tax bill,
while their neighboring subdivisions would not.
/.2- y
Page 5, Item -
Meeting Date 6/2/98
4. If the new residents know they are paying for parks, some of them tend to get
territorial, and resent outsiders using "their" park.
5. We still have some very expensive infrastructure to build in the Ranch such as
Olympic Pkwy. Building parks uses bonding capacity of these more expensive
facilities.
6. The sooner parks are on line the sooner the City has to spend General Fund money
to maintain them.
7. Not all of the bond proceeds are used for funding actual construction work. About
twenty percent of the bond proceeds may be used to fund a reserve fund and pay
district formation and bond issuance costs.
A final recommendation on the improvements to be financed by the proposed CFD will
be taken to Council as part of the Resolution of Intention to form the district (by August
1998), however, staff is recommending that the park financing issue be decided now,
Staff believes that the cons far outweigh the pros, and recommends that parks not
be financed by CFD's.
It should be noted that the construction cost of the proposed improvements is estimated at
$12,775,244 of which only $ 8,241,955 the developer is proposing for CFD financing. If
parks are not funded through the proposed CFD, the amount needed for construction would
be reduced to $8,585,244 which is in the ballpark of the cost of the improvements the
developer is proposing for CFD financing ($8,241,955). Even if parks are not funded, there
are still enough improvements (proposed by the developer) that qualify for the amount of
public financing requested by the developer.
2. Value to Lien Ratio: Council policy requires a minimum 4: 1 value-to-lien ratio. A ratio
ofless than 4:1, but equal to or greater than 3:1, may be approved, in the sole discretion
of Council, when it is determined that a ratio of less than 4: 1 is financially prudent under
the circumstances of a particular CFD.
Based on the appraisal infonnation subnùtted by the developer, the committee has determined
that the overall lien ratio for the project is less than 4: 1 at this time, however, as part of the
CFD proceedings, a new appraisal will be conducted on the property. A preliminary
appraisal and lien ratio analysis will be prepared for Council review at the Public Hearing
for the formation of the district (by September 1998). A final appraisal and lien ratio
analysis would be available for Council consideration prior to bond sale, which is planned
for last quarter of 1998. If the final analysis shows parcels which fail to meet the 4:1 ratio,
the developer would be required to either provide cash or letters of credit to maintain the lien
ratio within the City criteria, the principal amount of the bonds to be issued for AD 97-2 will
/:2r5
Page 6, Item -
Meeting Date 6/2/98
be reduced to comply with City policy or provide sufficient infonnation to convince Council
that a lesser lien ratio is prudent.
3. Maximwn Tax: Council Policy establishes that the maximwn annual CFD special taxes
applicable to any newly developed residential property shall be no more than 1 % of the sale
price of the house. In addition, the aggregate of all annual taxes and assessments is limited
to 2% of the sale price of the house.
A preliminary calculation of the maximwn tax, using estimated house prices, will be available
for Council consideration at the Public Hearing. A fmal test will be perfonned at escrow
closing using the actual sale mice of the house. Council Policy requires that at or prior to each
closing of escrow, the escrow company shall apply a "calculation fonnula" previously
approved by the City Engineer to determine the aggregate of regular County taxes, Mello-Roos
taxes, and assessment installments. If the 2 % limit is exceeded, the developer would be
required to provide cash to buy down the lien to an amount sufficient to meet the 2 % tax
ceiling. Compliance with this procedure would ensure that the aggregate tax to be paid by the
purchaser of the house meets the City's criteria.
FISCAL IMPACT: None, the developer will pay all costs and has deposited money to fund initial
consultant costs, City costs, and appraisal costs in accordance with the proposed Reimbursement
Agreement. The City will receive the benefit of the full cost recovery for City staff (estimated at
$45,000).
Exhibits: 1. B~fi' Area ~ ofImprov,mM"
2. Finance Plan
3. Application
4. Review ~lttee Report
H:\HOMEIENGINEERILANDDEV\OT A YRNCHlOR84R2.LDT
May 28, 1998
J.,2-tf
RESOLUTION NO. 19t1,¿ej
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA, CALIFORNIA, APPROVING THE
INITIATION OF PROCEEDINGS TO CONSIDER THE
FORMATION OF A COMMUNITY FACILITIES DISTRICT
FOR OTAY RANCH MCMILLIN SPA ONE
WHEREAS, the City of Chula Vista, California, has been
presented with and has received an application from McMillin- D.A.
America Otay Ranch, LLC (the "Applicant"), requesting that this
City Council initiate proceedings pursuant to the Mello-Roos
Community Facilities Act of 1982, as amended (Government Code
section 53311 and following) (the "Act") to form a community
facilities district preliminarily designated as Community
Facilities District No. 97-3 (Otay Ranch McMillin SPA One (the
"District") for the purpose of financing all or a portion of the
cost of the acquisition or construction of certain public
facilities; and
WHEREAS, such application was, as required by the city of
Chula vista Statement of Goals and policies Regrading the
Establishment of Community Facilities District (the "Goals and
Policies") previously adopted by this city Council, reviewed by the
community facilities district application review committee (the
"Review Committee") designated in such Goals and Policies; and
WHEREAS, based upon such review and pursuant to the Goals
and Policies, the city Manager has recommended that this City
Council accept the report of the Review Committee, and authorize
the initiation of proceedings to consider the formation of the
District subject to subsequent compliance of the proposed District
with the Goals and Policies, including without limitation, the
financial feasibility of the proposed District and the development
of the property within the District.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula vista does hereby resolve as follows:
section 1: The above recitals are all true and correct.
section 2: This city Council hereby accepts the Review
Committee report.
section 3: This City Council hereby authorizes the
initiation of proceedings to consider the formation of the District
as requested by the Applicant subject to all requirements of the
Act and the Goals and Policies. The decision of this City Council
to form the District is an exercise of the legislative authority of
this city Council. The adoption of this Resolution does not,
1
/2.-')
therefore, obligate this city council to exercise its legislative
discretion in a particular manner. This Resolution doe snot in any
way create a contractual, legal or equitable obligation of or
commitment by this City council to approve the formation of the
District, This City Council expressly reserves the right to
abandon the proceedings to consider the formation of the District
for any reason at any time prior to the completion thereof.
section 4: Improvements to be financed by CFDs should
not include public parks.
section 5: This Resolution shall become effective upon
its adoption.
BE IT FURTHER RESOLVED that the City council of the City
of Chula vista does hereby not allow the use of CFD financing for
Public Parks.
Presented by Approved as to form by
('tv- ~9--\.,,-) Æ-\
John P. Lippitt, Director of John M. Kaheny, City Ättorney
Public Works
c: \rs\initiats.CFD
2
/.2--y
J~ 01 '98 16:32 TO-94765379 FR()I-MCHILLIN ~PANJES T-666 P.02l03 F-666
2727 HDOV., Avt'uo
~.,lon.1 CIty, C4 91950 ^ ~ / ')
(619)477-4117 ~~ /0<-
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June 1,1998 '~-..I ../
-
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Mayor Shirley Horton
and Members of the City Council
City of Chula VÌßÚl
276 Fourth Av=nuc
Chula Vista, CA 91910
Re: Chula Vista City Council Meeting June 2, 1998, Item 12
Dear Honorable Shirley Horton,
This is to request a onc wcck continuance ofltcm 12 . Application for the Formation
of Community Facilities District Nwnber 97-3 (Otay Ranch McMillin Spa One.) I
understand from the manager's office that the item was taken off the
Consent CnIomdu md placed on the Action Agenda.. We request continuance of this
item to the hearing on June 9, 1998,
We roceìved the Slaffreport [allt Friday and were un~ware until that time that staff
would be asking Council to make a policy decision on the construction of parks as
part of this application. We need time to discuss this issue with the City Manager's
office.
Thank you for your consideration,
Sincerely,
~
Vice Presidèiít
00: City Clerk, Beverly Authelet
John Lippitt, Director of Public Works
George Krempl, Deputy City Manager
(!.f)NíINUéi>
/0 6/q/98
/fJ.-j
;JtjJ
INFORMATION ITEM
TO: Honorable Mayor and City Councilmembers ~
Fr: Barbara Bamberger, œental Resource Manager
Via: David D. Rowlands . Manager
RE: June 11th Press Conference in Los Angeles regarding Chula Vista's participation in the
World's Fair EXPO 2000
Da: June 1st, 1998
As City Council is aware, Chula Vista's Telecenter is one of the final 40 projects selected from
around the world to participate in the upcoming World's Fair EXPO 2000 "Projects All over the World"
diyision, to be held in Hannover Germany.
To announce selections from a number of U.S. communities, the directors from Expo 2000, along with the
German Consulate, will be holding a number of events in Los Angeles on June II tho A press conference
on the EXPO projects, followed by an afternoon workshop for all project representatives will take place.
These workshops are designed to meet with the EXPO coordinators who will provide answers to any
questions the City might haye regarding further participation in the EXPO 2000. In the evening, the
German Consul General, Mr. Wolfgang Rudolph, will sponsor a dinner with representatiyes of American
and German media, well-known personalities/actors from the United States and the Republic of Germany.
The dinner is intended to provide each Community with informal access to the media to further discuss
each their project.
Actiyities for June 11th are as follows:
10:30 am - 12:00 p.m. Press conference at the Los Angeles Department of Water and Power
12:00 p.m. Lunch in Koreatown
4:00 p.m. - 6:00 p.m. Workshop with project delegates from USA at German Consulate
7:00 p.m. Dinner buffet and official registration of appointed projects from different U.S.
states
The City has been asked to confirm its participation and proyide city representation. Staff is attempting to
obtain more detailed information from the EXPO 2000 office on the press conference and the additional
events during the day.
Staff requests Council direction regarding representation of Chula Vista at the 10:30 a.m. press conference
and other eyents on June 11th.
Back¡¡round
In June 1997, telecenter staff was approached by the World's Fair Exposition and asked to submit the
City's telecenter program to showcase in the upcoming World Exposition being held in Hannover,
Germany in the year 2000 (EXPO 2000). Experts from various fields got together in Hannover in July
1997 to review 236 applications for projects from all over the world. Chula Vista's telecenter was one of
73 projects that has been recommended for participation at EXPO 2000. To continue with the next round
of approvals, in February 1998, Council approved a resolution to submit a registration agreement
with EXPO 2000 for the Telecenter Project. In March of 1998, staff was informed that Chula
Vista's submission on behalf of the Telecenter was selected among the projects by the
International Selection Commission EXPO 2000.
/,3-1
29.05.98 17:35 EXPO 2000 INT. PROJEKTE .. 00016195855612 NR,235 B001/004
City of Chula Vista Telecenter
Mrs. Barbara Bamberger
'550 East H Street. Suite J
Chula VlsU. CA 919'3 ...'
CAUFORNIA
USA
The World Exposition
Ciennany
.-
Do" 2gth May. 1998 ............ 149 ,....""
FaK: 00,.619-585-5612 .."',.. -440 ...."" BHlH5Ip1DDtOOJD
Your PnlJect "City gfChIl!. VIsta Telet:ent8f, USA"
Reslstratlon Ennt on ,,'" Jllnll, 1,98111 Los Anplu
~
J ~r Mrs. Bamberg,
I....
According to our telephone conversation on 05-26-98 I am sending you listed here-
afterthe Itinerary for the a, m. event In Los Angeles, As you will see, there have some
small changes been made. which hopefully will make our planning even more
attractive,
In the morning from 10,3Q -12.00 a. m. there will be a press conference of the EXPO-
project "Living Løkes" (see enclosure). All other projects are very welcome to attend,
. Afterwards a small lunch will be served,
In the afternoon from 04.00 - 6.00 p. m, there will be a workshop for all project repre-
sentatlves In the German Consulate General. I would like to use this occasion for
discussing ail questions regarding the further proceedings of your piirtidpiitlon In the
EXPO 2000.
In the eveninll at 7.00 p. m. the German Consul General, Mr. Wolfgang Rudolph, will
invite to dinner (buffet) with representatives of Am~rlcan iind_ç¡~edia and
exPO 2000 "......,""'H Ca,t«pond"". ,huuld be "",I "" ..."",...."Bo"d, .oyobl'....
corpo'>I'." (0' tho O,.,n._n,ad exPO 2000 Honn..., GmbH 8"V" "",uol No"."'- ',ad,,',nk H..o""",
'-'~""""""""""PO""" "J""""""'" Dr._Io",O..." Ac"'untNo.'O"'5m
"'0 1000 'n H,nn..., Add,.... Chl¡'mon .ftll, S"""'.ory Bo,"', Bonk 'den~fk"lO. No, 050500 00
To"'phonH.'!.)5" ~.. T"",nIlÞ;"rall<o Holm"""',." ",.""" 8on'
T.iefaxo ...10)5" a....,oo D-I05'O"".0", HRB 54$10 IIG Hlnn...' """'un! No. "48 0."
,.mol,In"".",.,..o... Mll"lIwww~opo'ooo.d. ",""denllf'calion No. "" 700 70
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0... 29th May, 1998 I page 2
personalities of DubUc life. At this reception the re~lst~j:ion certificates and the IORO
of the EXPO 2000 will officiallv be pres~nted to the project representatives.
Please confirm shortly your participation with Indlaltlon of the name and let me
know whether and for whom a hotel accommodation has tD be arranged.
Furthermore, I kindly ask you to bring with you ~ Information brochure or
something like this concerning your project for approx. 40 persons.
Please be reminded that your approval by signature of the before sent registration
agreement is obligatory for the registration. Should this not have been effected yet,
this may also be done directly In Los Angeles,
I am looking forward to meetingyou In Los Angeles and am hoping to spend a very
interesting day with you,
Yours sincerely,
DfiJw--
Director «Projects all over the World"
and "Global DIalogue EXPO 2000'
P5: For prepared press material we do need urgently at least one photo (or slide)
which represents the message of your project, Please send one as soon as
possible to the German Consulate General (to the attention of Ms Häberle),
(6222 Wilshire Blvd #500, Los Angeles, CA 90048, Tel. (213) 930-7601, Fax (213) 93°-28°5)
Enclosure
/3-3
29,05.98 17'3~ Ioxr-U åJ"" U'I.""UJ"K'to -. """lbl"""""bl'" ""C.""'" """"ev""""
~-
fr!~-
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EXPO2000 Pro-&ram In Los Angeles
June 11th, 1998
10.30 a. m. Press Conference Living Lakes Network
until (Los Angeles Department of Water and Power, 111 NorthHope Street)
12.00 a, m.
12.00 a. m. Lunch in Kareatown
I 4-00 p. m. Workshop with project delegates from USA
I until (German Consulate General, 6222 Wilshire Blvd # 500)
I
. 6.00 p.m.
7.00 p. m, Dinner buffet and official registration of appointed projects
from different US states
(Residence of General Consulate press office, Ms. Hãberle)
P5: Announcement of booked hotel accomodation will be sent to you neld: week.
Please confirm at your earliest convenience your assistance.
/.3 -~
City of Chula Vista Telecenter
Mrs. Angie Jarchow I Telecenter Director
1550 East H Street, Suite J
Chula Vista, CA 919'3
CALIFORNIA
USA
The World Exposition
Germany
D... 01" May, 1998 DI"ct'."" '49 Vo...'"
Fax: 001-619-656-3087 D..""'. -440 0""" BH/HS/p1O0/a030
Your Project "City of Chula Vista Telecenter, USA"
Dear Mrs. Jarchow,
On"th June, 1998 we intend to carry out the registration of recommended EXPO 2000
projects from the United States and this event will be brought to the public's
attention and will take place in Los Angeles.
We would be very pleased if you could participate in this event as we would also at
the same time like to use this occasion for a working conference with all project
partners from the United States in order to discuss the further proceedings.
Well known personalities from the United States, the Republic of Germany and
representatives of the media will take part in this event which has been agreed in co-
operation with the German Embassy in the United States. The official registration can
only be made for those projects which have signed the relevant registration agree-
ment or which have already given their approval for signature. We therefore kindly
ask you to inform us accordingly in order to be able to send you an invitation and the
program for the"th June, 1998.
~
'XPO 2000 "00"'" Gmb" C","pood"" ,hoold b, ",t to M"'g,m," '",d
Co'p"",,, fo' 'h, O""",,'oe ood EXPO 2000 ""CO", GmbH "'git"""
""",t.oeo/th,Wo,Id',po,'tioe 0- ¡05>O H"co", 0,. ',',h"d Volk '<000" No '" 485 795
'XPO 2000 'e H"co". Add"" Ch",m,"o'th, Sop"""'y 8°'" 800' Id"tifit"'oo No '50 SOD 00
T",phoe,.,,(0)5" 84°4-0 Thoccoth"".", H,'motW",eo Oeet"h, '"k
T"",. ."(0)5"8404>00 D- 3°5'9 "",..eo "RB 54530 AG "."..eo Aowoe'N'."8",,
8ook Id",if".tioo No '5070070
,-m,iI mfo@"powoo.d, httpllwww"p",ooo.d,
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Looking forward to hearing from you soon.
Yours sincerely,
:f (
D,t~rJ-",~
Director "Projects all overthe World"
and "Global Dialogue"
/3-6
~ Generalkonsulat
der Bundesrepublik Deutschland
Consulate General
of the Federal Republic of Germany
Gz:Wi412.1011 Hatno
I""~,'~'_n"",,"g)
Mrs. Barbara Bamberger
Environmental Resource Manager
City of Chula Vista
Environmental Division
276 Fourth Ave.
Chula Vista, CA 91910
l J
Re: EXPO 2000
- Worldwide Projects -
Dear Mrs Bamberger,
the City ofChula Vista has submitted an application for the "EXPO 2000 International Projects". I
am pleased to inform you that among the projects selected by the International Selection Commission
EXPO 2000 is the City ofChula Vista Telecenter. Meanwhile it has been registered as "EXPO 2000
Project". Please find enclosed the registration document signed by Birgit Breuel, Commissioner
General and Member of the Executive Board of EXPO 2000. The City ofChula Vista Telecenter is
one of the 73 projects selected in 43 countries worldwide.
At a later stage EXPO 2000 plans to publish a book introducing the 73 projects worldwide. With
reference to our telephone conversation dated April 2], 1998 may I suggest that you approach the
recently nominated u.S. General Commissioner for the £:\.1>0 2000, Mr. William Rollnick, through
the United States Information Agency in Washington, D.c., whether the City ofChula Vista
Telecenter would be considered as a project in the United States Pavilion at EXPO 2000.
Please let me know if I can be of any further assistance. At my next visit to San Diego I would be
honored if I could visit with you and learn more about your project.
'"i~ iJ ~~k
Margit Häberle
Consul for Media and Economic Affairs
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