HomeMy WebLinkAbout2006/12/19 Item 8
COUNCIL AGENDA STATEMENT
Item:
g
Meeting Date: 12/19/Oti
SUBMITTED BY:
Resolution of the City Council of the City of Chula Vista, approving an
agreement between the City of Chula Vista; Burkett & Wong Engineers,
Consultant; and McMillin Otay Ranch, LLC., for the preparation of a Public
Facilities Financing Plan for the Otay Ranch Village Eastern Urban Center
(EVC), and authorizing the Mayor to execute said agreement.
Director OfPl~ and Buildin~
City Manager ~I (4/5ths Vote: Yes~o~)
ITEM TITLE:
REVIEWED BY:
McMillin Otay Ranch, LLC. has submitted the Sectional Planning Area (SPA) Plan for the
Eastern Vrban Center in Planning Area 12 of the Otay Ranch. The Otay Ranch General
Development Plan and the City Municipal Code require the preparation of a Public Facility
Finance Plan (PFFP) for all SPA Plans. The City does not presently have the "in-house" staff or
resources to prepare the PFFP within the time frame requested by the Applicant. Proposals for
services for the preparation of the document were requested from the City list of qualified
consultants. Burkett & Wong was selected out of the competitive process.
This request is for City Council approval of a three party agreement between the City, Burkett &
Wong and McMillin, who will pay for the entire cost of preparing the document.
RECOMMENDATION:
That the City Council adopt a Resolution approving the three-party agreement with Burkett &
Wong Engineers for consultant services related to the preparation of a Public Facilities Financing
Plan (PFFP) for the Sectional Planning Area (SPA) Plan for the Otay Ranch EVC, and authorizing
the Mayor to sign the agreement.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
R"ckgrnl1nrl
The Otay Ranch EVC PFFP will be processed in conjunction with potential amendments to the
Otay Ranch General Development Plan (GDP), and the formulation of a new Sectional Planning
Area (SPA) Plan for the EUC in the Otay Ranch Planned Community. The Planning
Commission and City Council are expected to consider the projects in late 2007.
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Page 2, Item:L
Meeting Date: 12/19/06
The preparation of a PFFP for the EUC is required in conjunction with the preparation of a SPA
Plan and will be prepared under the requirements of the City of Chula Vista Growth Management
Ordinance and the Otay Ranch GDP. The PFFP is intended to address the timing and financing
mechanisms necessary to provide public facilities for the EUC prior to or concurrent with need.
The project's scope of work and approach are described in the Three Party Agreement
(Attachment #3)
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On August 9, 2006, the Planning Division sent the five firms on the list of qualified consultants a
Request for Proposal to prepare the PFFP for Otay Ranch EUC SPA. Only two firms responded:
Burkett & Wong Engineers and Economics Research Associates (ERA). The City conducted a
formal selection process and found Burkett & Wong Engineers to be best qualified to prepare the
PFFP because of their prior work preparing PFFPs within the Otay Ranch, their proposed cost,
and their knowledge of the project.
The consultant represents that they are staffed in a manner necessary to prepare and deliver the
required services to the City within the necessary time frames. Planning Division staff has
negotiated the details of this agreement in accordance with procedures set forth in Section 2.56.110
of the Chula Vista Municipal Code. Burkett & Wong proposes to do this work for $39,780.
The Environmental Review Coordinator has reviewed the proposed activity for compliance with
the California Environmental Quality Act (CEQA) and has determined that there is no possibility
that the activity may have a significant effect on the environment; therefore, pursuant to Section
15061(b)(3) of that State CEQA Guidelines, the activity is not subject to CEQA. Thus, no
environmental review is necessary
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Under the agreement, which is based on the City's standard three-party agreement, Burkett & Wong
will perform tasks associated with the scope-of-work for the preparation of a PFFP Otay Ranch
EUC. The scope-of-work includes tasks such:
· R"S"OTcn onc1 Anolysis: The consultant will gather and review all data and available
documents. The consultant will meet with City staff to discuss any issues as well.
Confirmation of the project's statistics and criteria will be confirmed at this stage as well.
· Focil;!;"s Anolysis: The consultant will initiate and prepare an independent analysis of short-
and long-term impacts of the project on public facilities. In addition, the consultant will
evaluate the EVC's compliance with the City's Growth Management Threshold Standards.
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Page 3, Item:L
Meeting Date: 12/19/06
. Tr"ffi~ StlJ(ly: Kimley Horn is currently under contract to complete a traffic study for the
Project under the ElR contract. Part of the traffic study will be. utilized for analysis in the PFFP.
The consultant will coordinate with Kimley Horn in the preparation of the traffic study portion
of the PFFP.
. Prep"f"tinn nfPFFP "TIn Pllhlir H"m;TIE': The consultant will complete preparation of the
PFFP document and be in attendance at all public hearings.
DECISION-MAKER CONFLICTS:
No Property within 500 feet:
Staff has reviewed the property holdings of the City Council and has found no property holdings
within 500 feet of the boundaries of the property that is subject to this action.
FISCAL IMPACT:
The preparation of this PFFP will not result in an impact to the City's General Fund. McMillin
Otay Ranch, LLC. will compensate the consultant at the applicants' sole cost and expense. The
total amount for the contract is $39,780.00.
A tt:H~hmf'nts
1. Locator Map
2. Resolution approving agreement between the City of Chula Vista, Burkett & Wong, McMillin Otay Ranch
LLC to Prepare Public Facilities Financing Plan for the Otay Ranch EUC SPA Plan
3. Three Party Agreement between the City of Chula Vista, Burkett & Wong, McMillin Otay Ranch LLC to
Prepare Public Facilities Financing Plan for the Otay Ranch EUC SPA Plan.
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RESOLUTION NO. 2006-
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CHULA VISTA APPROVING AN AGREEMENT
BETWEEN THE CITY OF CHULA VISTA; BURKETT
& WONG ENGINEERS, CONSULTANT; AND
MCMILLIN OTAY RANCH, LLC., 'FOR THE
PREPARATION OF A PUBLIC FACILITIES
FINANCING PLAN FOR THE OT A Y RANCH
VILLAGE EASTER.N URBAN CENTER (EUC), AND
AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT
WHEREAS, McMillin Otay Ranch LLC, the Applicant, has submitted a Sectional
Planning Area (SPA) Plan application and project description for the Eastern Urban
Center (EUC) property; and,
WHEREAS, pursuant to Title 19 of the Chula Vista Municipal Code, Section
19.09.050, a Public Facilities Financing Plan (PFFP) is required in connection with the
SP A Plan; and,
WHEREAS, on August 9, 2006, the Planning Division sent the five firms on the
list of qualified consultants a Request for Proposal to prepare the PFFP for Otay Ranch
EUe. City staffreviewed the proposals and is recommending the selection of Burkett &
Wong Engineers, is qualified to prepare the PFFP for the Otay Ranch EUC because of its
prior work preparing PFFPs within the Otay Ranch, the proposed cost, and their
knowledge of the project; and
WHEREAS, City staff is recommending that the City enter into a three-party
agreement with Burkett & Wong Engineers and the applicant, pursuant to which Burkett
& Wong Engineers will prepare the PFFP for the Otay Ranch EUC (the Agreement); and
WHEREAS, Burkett & Wong Engineers has performed satisfactorily under the
other similar agreements and it is staffs recommendation that it is in the City's best
interest to retain Burkett & Wong Engineers due to their intimate knowledge and
familiarity with the PFFP process and scope; and
WHEREAS, Burkett & Wong Engineers represents that it is staffed in a manner
that they can prepare and deliver the required services to the City within the necessary
time frames; and
WHEREAS, the Applicant will be responsible for all costs and expenses under
the Agreement; and,
R~-:r
Resolution No. 2006-
Page 2
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
activity for compliance with the California Environmental Quality Act (CEQA) and has
determined that there is no possibility that the activity may ha.ye a significant effect on the
environment; therefore, pursuant to Section l5061(b)(3) of the State CEQA Guidelines, the
activity is not subject to CEQA. Thus, no environmental review is necessary.
NOW, THERFORE, BE IT RESOLVED that the City Council of the City Chula
Vista hereby approve an agreement between the City of Chula Vista; Burkett & Wong
Engineers, Consultant; and McMillin Otay Ranch, LLC., for the preparation of a Public
Facilities Financing Plan for the Otay Ranch Village Eastern Urban Center.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized and directed to execute said Agreement for and on behalf of the City of Chula
Vista.
Presented by
Approved as to fom1 by
c
James D. Sandoval
Director of Planning and Building
J: \Attorney\RESO\AGREEMENTS\EUC _ PFFP _ Contract_Resolution ([ 2-19-06).doc
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THE A TT ACHED AGREEJ\iIENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
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City Attorney
Dated: ) 1/ tf/D y
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Three-Party Agreement
Between
City of Chula Vista,
Burkett & Wong, Consultant, and
McMillin Otay Ranch, LLC, Applicant,
F or Consulting Work to prepare the Otay Ranch
Eastern Urban Center (EUC)
Public Facilities Financing Plan
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Three-Party Agreement
Between
City of Chula Vista,
Burkett and Wong, (Consultant), and
McMillin Otay Ranch, LLC, (Applicant)
For Consulting Work to prepare the Otay Ranch Eastern Urban Center (EDC)
Public Facilities Financing Plan:
1. Parties.
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This Agreement is made as of the reference date set forth in Exhibit A, for the purposes of
reference only, and effective as of the date last executed by the parties hereto, between the City of
Chula Vista ("City") herein, a municipal corporation ofthe State of California, the consulting firm of
Burkett and Wong designated on the attached Exhibit A as "Consultant", whose business form and
address is indicated on the attached Exhibit A, and the person designated on the attached Exhibit A
as "Applicant," McMillin Otay Ranch, LLC, whose business form and address is indicated on the
attached Exhibit A, and is made with reference to the following facts:
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2. Recitals, Warranties and Representations.
2.1. W arrantv of Ownership.
Applicant warrants that Applicant is the owner ofland ("Property") commonly known as, or
generally located as described in Exhibit A, Paragraph I, or has an option or other entitlement to
develop said Property.
2.2. Applicant desires to develop the Property with the Project described on Exhibit A,
Paragraph 2, and in that regard, has made application ("Application") with the City for approval of
the plan, map, zone, or other permits ("Entitlements") described in Exhibit A, Paragraph 3.
2.3. In order for the City to process the Application, work of the general nature and type
described in Exhibit A, Paragraph 4, ("Work") will need to be completed.
2.4. City does not presently have the "in-house" staff or resources to process the application
within the time frame requested for review by the Applicant.
2.5. This Agreement proposes an arrangement by which Applicant shall retain, and be liable
for the costs of retaining, Consultant, who shall perform the services required of Consultant by this
Agreement solely to, and under the direction of, the City.
2.6. Additional facts and circumstances regarding the background for this Agreement are set
forth on Exhibit B.
3. Agreement.
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NOW, THEREFORE, IT IS MUTUALLY AGREED TO AND BETWEEN THE CITY,
CONSULTANT AND APPLICANT AS FOLLOWS:
3.1. Employment of Consultant by Applicant.
Consultant is hereby engaged by the Applicant, not the City, and at Applicant's sole cost and
expense, to perform to, and for the primary benefit of, City, and solely at City's direction, all of the
services described in the attached Exhibit A, Paragraph 4, entitled "General Nature of Consulting
Services," ("General Services"), and in the process of performing and delivering said General
Services, Consultant shall also perform to and for the benefit of City all ofthe services described in
Exhibit A, Paragraph 5, entitled "Detailed Scope-of-Work," ("Detailed Services"), and all services
reasonably necessary to accomplish said General Services and Detailed Scope-of- Work, and shall
deliver such documents required ("Deliverables") herein, all within the time frames herein set forth,
and in particular as set forth in Exhibit A, Paragraph 6, and if none are set forth, within a reasonable
period oftime for the diligent execution of Consultant's duties hereunder. Time is of the essence of
this covenant.
The Consultant does hereby agree to perform said General and Detailed Services to and for
the primary benefit of the City for the compensation herein fixed to be paid by Applicant.
In delivering the General and Detailed Services hereunder, the Consultant shall do so in a
good, professional 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, at
its own cost and expense except for the compensation and/or reimbursement, if any, herein
promised, and shall furnish all of the labor, technical, administrative, professional and other
personnel, all supplies and materials, machinery, equipment, printing, vehicles, transportation, office
space and facilities, calculations, and all other means whatsoever, except as herein otherwise
expressly specified to be furnished by the City or Applicant, necessary or proper to perform and
complete the work and provide the Services required of the Consultant.
3.2. Compensation of Consultant.
App licant shall compensate Consultant for all services rendered by Consultant without regard
to the conclusions reached by the Consultant, and according to the terms and conditions set forth in
Exhibit C adjacent to the governing compensation relationship indicated by a "checkmark" next to
the appropriate arrangement, by paying said amount to the City, within fifteen (15) days of
Consultant's billing, or in accordance with the security deposit provisions of Paragraph 3.3 and
Exhibit C, if checked, and upon receipt of such payment by the City, City shall promptly, not later
than fifteen (15) days, or in accordance with the Bill Processing procedure in Exhibit C, if checked,
pay said amount to the Consultant. City is merely acting in the capacity as a conduit for payment,
and shall not be liable for the compensation unless it receives same from Applicant. Applicant shall
not make any payments of compensation or otherwise directly to the Consultant.
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3.2.1. Additional Work. Ifthe Applicant, with the concurrence of City, determines
that additional services ("Additional Services") are needed from Consultant of the type Consultant is
qualified to render or reasonably related to the Services Consultant is otherwise required to provide
by this Agreement, the Consultant agrees to provide such additional services on a time and materials
basis paid for by Applicant at the rates set forth in Exhibit C, unless a separate fixed fee is otherwise
agreed upon in writing for said Additional Work benveen the parties.
3.2.1.1. In the event that the City shall determine that additional work is
required to be performed above and beyond the scope of work herein provided, City will consult
with Applicant regarding the additional work, and if thereupon the Applicant fails or refuses to
arrange and pay for said Additional Services, the City may, at its option, suspend any further
processing of Applicant's Application until the Applicant shall deposit the City's estimate of the costs
of the additional work which the City determines is or may be required. Applicant shall pay any and
all additional costs for the additional work.
3.2.2. Reductions in Scope-of- Work. City may independently, or upon request from
Consultant, from time to time reduce the 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.
Upon failure to agree, the Fixed Fee may be unilaterally reduced by the City by the amount of time
and materials budgeted by Consultant for the Services deleted.
3.3. Security for Payment of Compensation by Applicant.
3.3.1. Deposit. As security for the payment of Consultant by Applicant, Applicant
shall, upon execution of this Agreement, deposit the amount indicated in Exhibit C as "Deposit
Amount" with the City, as trustee for Consultant, the conditions of such trust being as indicated in
Exhibit C and as herein below set forth:
3.3.1.1 Other Terms of Deposit Trust.
3.3.1.1.1. City shall also be entitled to retain from said Deposit all
costs incurred by City for which it is entitled to compensation by law or under the terms of this
Agreement.
3.3.1.1.2. All interest earned on the Deposit Amount, if any, shall
accrue to the benefit of, and be used for, Trust purposes. City may, in lieu of deposit into a separate
bank account, separately account for said deposit in one or more of its various bank accounts, and
upon doing so, shall proportionately distribute to the Deposit Trust, the average interest earned
during the period on its general fund.
3.3.1.1.3. Any unused balance of Deposit Amount, including any
unused interest earned, shall be returned to Applicant not later than thirty (30) days after the
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termination of this Agreement and any claims resulting there from.
3.3.1.1.4. Applicant shall be notified within thirty (30) days after the
use of the Deposit in any manner. Nothing herein shall invalidate use of the Deposit in the manner
herein authorized.
3.3.1.1.5. At such time as City shall reasonably determine that
inadequate funds remain on Deposit to secure future compensation likely due Consultant or City,
City may make demand of Applicant to supplement said Deposit Amount in such amount as City
shall reasonably specify, and upon doing so, Applicant shall, within thirty (30) days pays said
amount ("Supplemental Deposit Amount") to City. Said Supplement Deposit Amount or Amounts
shall be governed by the same terms of trust governing the original Deposit.
3.3.2. Withholding of Processing. In addition to use of the Deposit as security, in
order to secure the duty of Applicant to pay Consultant for Services rendered under this Agreement,
City shall be entitled to withhold processing of Applicant's application upon a breach of Applicant's
duty to compensate Consultant.
4. Non-Service Related Duties of Consultant.
4.1. Insurance.
Consultant represents that it and its agents, staff and sub consultants employed by it in
connection with the Services required to be rendered, are protected against the risk ofloss by the
following insurance coverages, in the following categories, and to the limits specified, policies of
which are issued by Insurance Companies that have a Best's Rating of AA, Class A V or better, or
shall meet with the approval of the City:
4.1.1. Statutory Worker's Compensation Insurance coverage in the amount set forth
in the attached Exhibit A, Paragraph 10.
4.1.2. Commercial General Liability Insurance including Business Automobile
Insurance coverage in the amount set forth in Exhibit A, Paragraph 10, 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 ofthe City and Applicant in
the same manner as members of the general public ("Cross-liability Coverage").
4.1.3. Errors and Omissions insurance, in the amount set forth in Exhibit A,
Paragraph 10, unless Errors and Omissions coverage is included in the General Liability policy.
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4.2. Proof of Insurance Coverage.
4.2.1. 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.
4.2.2. 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,
McMillin Otay Ranch, LLC, demonstrating same and naming McMillin Otay Ranch, LLC and the
City of Chula Vista as additional insured.
4.3. Public Statements.
All public statements and releases to the news media shall be the responsibility of the City
and the Applicant. The Consultant shall not publish or release news items, articles or present
lectures on the Project, either during the course ofthe study or after its completion, except on written
concurrence of the City and Applicant.
4.4. Communication to Applicant.
Consultant shall not communicate directly to the Applicant except in the presence of the City,
or by writing an exact copy of which is simultaneously provided to City, except with the express
consent of City. The Consultant may request such meetings with the Applicant to ensure the
adequacy of services performed by Consultant.
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5. Non-Compensation Duties of the Applicant.
5.1. Documents Access.
The Applicant shall provide to the Consultant, through the City, for the use by the Consultant
and City, such documents, or copies of such documents requested by Applicant, within the
possession of Applicant reasonably useful to the Consultant in performing the services herein
required of Consultant, including but not limited to those described in Exhibit A, Paragraph 10.
5.2. Property Access.
The Applicant hereby grants permission to the City and Consultant to enter and access the
Property, provided that the applicant is given forty-eight (48) hours notice prior to the City or
consultant entering the property, to take any borings, make any tests, conduct any surveys or
reconnaissance necessary to deliver the Services of Consultant, subject to the approval of the
Applicant. Consultant shall promptly repair any damage to the subject property occasioned by such
entry and shall indemnify, defend, and hold Applicant harmless from all loss, cost, damage,
expenses, claims, and liabilities in connection with or arising from any such entry and access.
5.3. Communication to Applicant. .
Consultant shall not communicate directly to the Applicant except in the presence of the City,
or by writing an exact copy of which is simultaneously provided to City, except with the express
consent of City. The Consultant may request such meetings with the Applicant to ensure the
adequacy of services performed by Consultant.
6. Administrative Representatives.
Each party designates the individuals ("Administrators") indicated in Exhibit A, Paragraph
11, as said party's contract administrator who is authorized by said party to represent them in the
routine administration of this Agreement.
7. Conflicts of Interest.
7.1. Consultant is Designated as an FPPC Filer.
If Consultant is designated in Exhibit A, Paragraph 12, 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 his economic interests to the City Clerk on the required
Statement of Economic Interests in such reporting categories as are specified in Paragraph 9 of
Exhibit A, or if none are specified, then as determined by the City Attorney.
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7.2. 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:
7.3. 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.
7.4. Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as a 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.
7.5. 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.
7.6. 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 the property which is the subject matter of the Project,
or in any property within lO radial miles from the exterior boundaries of the property which is the
subject matter of the Project, or ("Prohibited Interest").
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 by Applicant or by any other party as a result of 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 twelve (12) months thereafter.
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Consultant agrees that Consultant shall not acquire any such Prohibited Interest within the
Term of this Agreement, or for twelve (12) months after the expiration of this Agreement.
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.
8. Default of the Consultant for Breach.
This Agreement may be terminated by the City for default if the Consultant breaches this
Agreement or if the Consultant refuses or fails to pursue the work under this Agreement or any phase
of the work with such diligence which would assure its completion within a reasonable period of
time. Termination of this Agreement because of a default of the Consultant shall not relieve the
Consultant from liability of such default.
9. City's Right to Terminate Agreement for Convenience, Documents.
9.1. Notwithstanding any other section or provision of this Agreement, the City shall have
the absolute right at any time to terminate this Agreement or any work to be performed pursuant to
this Agreement.
9.2. In the event of termination of this Agreement by the City in the absence of default of
the Consultant, the City shall pay the Consultant for the reasonable value of the services actually
performed by the Consultant up to the date of such termination, less the aggregate of all sums
previously paid to the Consultant for services performed after execution of this Agreement and prior
to its termination.
9.3. The Consultant hereby expressly waives any and all claims for damage or
compensation arising under this Agreement, except as set forth herein, in the event of such
termination.
9.4. In the event of termination of this Agreement, and upon demand of the City, the
Consultant shall deliver to the City, all field notes, surveys, studies, reports, plans, drawings and all
other materials and documents prepared by the Consultant in performance of this Agreement, and all
such documents and materials shall be the property of the City; provided however, that the
Consultant may retain copies for their own use and the City shall provide a copy, at Applicant's cost,
of all such documents to the Applicant.
9.5. Applicant shall have no right to terminate Consultant, and shall not exercise any control
or direction over Consultant's work.
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10. Administrative Claims Requirement and Procedures.
No suit 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 ofChula Vista and acted upon by the City of
Chula Vista in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista
Municipal Code, the provisions of which are incorporated by this. 'reference as if set fully set forth
herein.
II. Hold Harmless and Indemnification.
11.1. Consultant to Indemnify City and Applicant re Injuries.
Consultant shall defend, indemnify, protect and hold harmless the City, its elected and
appointed officers and employees and Applicant 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, or others of City or Applicant 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 ofthe City, its officers, or employees, or Applicant,
Consultant's indemnification shall include any and all costs, expenses, attorneys' fees and liability
incurred by the City, its officers, agents, or employees or Applicant 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 or Applicant, defend any such suit or action brought against the City, its
officers, agents, or employees or Applicant. Consultants' indemnification of City and Applicant
shall not be limited by any prior or subsequent declaration by the Consultant.
11.2. Applicant to Indemnify City re Compensation of Consultant.
Applicant agrees to defend, indemnify and hold the City harmless against and from any and
all claims, losses, damages, expenses or expenditures of City, including its elected officials, officers,
employees, agents, or representatives of the City ("City Indemnitees"), in any way resulting from or
arising out of the refusal to pay compensation as demanded by Consultant for the performance of
services required by this Agreement.
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12. Business Licenses.
Applicant agrees to obtain a business license from the City and to otherwise comply with
Chula Vista Municipal Code, Title 5. Applicant further agrees to require Consultant to obtain such
business license and to comply with Chula Vista Municipal Code, Title 5.
13. Miscellaneous.
13.1. Consultant not authorized to Represent City.
Unless specifically authorized in writing by City, neither Consultant nor Applicant shall have
authority to act as City's agent to bind City to any contractual agreements whatsoever.
13.2. 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 ifpersonally 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 for the parties in Exhibit A.
13.3. Entitlement to Subsequent Notices.
No notice to or demand on the parties for notice of an event not herein legally required to be
given shall in itself create the right in the parties to any other or further notice or demand in the
same, similar or other circumstances.
13.4. 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 subj ect
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.
13.5. 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; that all
resolutions or other actions have been taken so as to enable it to enter into this Agreement.
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13.6. 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.
13.7. Modification.
No modification or waiver of any provision ofthis Agreement shall be effective unless the
same shall be in writing and signed by the parties hereto, and then shall be valid only in the specific
instance and for the purpose for which given.
13.8. Counterparts.
This Agreement may be executed in more than one counterpart, each of which shall be
deemed to be an original but all of which, when taken together shall constitute but one instrument.
13.9. Severability.
In the event that any provision of this Agreement shall for any reason, be determined to be
invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith and
agree to such amendments, modifications, or supplements to this Agreement or such other
appropriate action as shall, to the maximum extent practicable in light of such determination,
implement and give effect to the intentions of the parties as reflected herein.
13.10. Headings.
The captions and headings in this Agreement are for convenience only and shall not define or
limit the provisions hereof.
13.11. Waiver.
No course of dealing or failure or delay, nor the single failure or delay, or the partial exercise
of any right, power or privilege, on the part of the parties shall operate as a waiver of any rights
herein contained. The making or the acceptance of a payment by either party with knowledge of the
existence of a breach shall not operate or be construed to operate as a waiver of any such breach.
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13.12. Remedies.
The rights ofthe parties under this Agreement are cumulative and not exclusive of any rights
or remedies which the parties might otherwise have unless this Agreement provides to the contrary.
13.13. No Additional Beneficiaries.
Despite the fact that the required performance under this Agreement may have an affect upon
persons not parties hereto, the parties specifically intend no benefit therefrom, and agree that no
performance hereunder may be enforced by any person not a party to this Agreement.
Notwithstanding the foregoing, this is a three party agreement and the City is an express third party
beneficiary of the promises of Consultant to provide services paid for by Applicant.
(End of Page. Next Page is Signature Page.)
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Signature Page
NOW THEREFORE, the parties hereto, having read and understood the terms and conditions
of this Agreement, do hereby express their consent to the terms hereof by setting their hand hereto
on the date set forth adjacent thereto.
City of Chula Vista
Dated:
by
Suzanne Brooks, Purchasing Agent
Approved as to Form:
by:
Ann Moore, City Attorney
Dated:
by:
An
Dated:
Applicant:
McMillin Otay Ranch, LLC
McMillin Otay Ranch, LLC
a Delaware limited liability company
By: McMillin Companies, LLC,
a Delaware limited liabili y company
Its: Manager
B~I
Its: \f. r
t
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F2D
}
STATE OF CALIFORNIA }ss.
COUNTY OF SAN DIEGO }
On December 1, 2006, before me, Ann M. Futo, Notary Public personally appeared
Todd Galarneau and Denny Cuccarese , personally known to me (or provod to mo on tho
basis of s::ltisf3ctory ovidonco) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that ho/eho/they executed the same in hie/hor/their
authorized capacity(ies), and that by his/hor/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ~Lm.
~-L\
JlJJ.v
This area for official notarial seal
Notary Form-2
f-,,)j
McMillin Companies
Exhibit A
Reference Date of Agreement:
EiJective Date of Agreement:
:
City ofChula Vista, 276 Fourth Avenue, Chula Vista, CA 91910
Consultant: Burkett and Wong Engineers, Inc.
Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
( X) Corporation
Address: 3434 Fourth Avenue, San Diego California 92103
Applicant: McMillin Otay Ranch, LLC
Business Form of Applicant:
( ) Sole Proprietorship
( ) Partnership
( ) Corporation
( X) Other: LLC, A Delaware Limited Liability Company
Address: 2750 Womble Road, San Diego, CA 92106
1. Property (Commonly known address or General Description):
This proposed project includes approximately 210 acres of the EVC that is owned by
McMillin Otay Ranch, LLC. The application will only evaluate the remaining acreage of the EVC at
a level sufficient to ensure that it can be developed in accordance with the Otay Ranch General
Development Plan and the City's Growth Management Ordinance. The property is located south of
Birch Road, north of Hunte Parkway, east of and adjacent to State Route 125, and west of Eastlake
Parkway
2. Project Description ("Project"):
Preparation of a new Public Facilities Financing Plan (PFFP) for the property known as the
Eastern Urban Center (EVC) and owned by McMillin Otay Ranch, LLC as required by the City's
Growth Management Ordinance in conjunction with the concurrent processing of any potential
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amendments to the City's General Plan and the Otay Ranch General Development Plan, and the
formulation of a new Sectional Planning Area (SPA) Plan for the EUC Property.
3. Entitlements applied for:
a) New Sectional Planning Area (SPA) Plan and associated regulatory documents,
including, but not limited to the following: 1) Design Plan; 2) Planned Community
District Regulations (1 and 2 combined in this SPA Plan); 3) Air Quality Improvement
Plan; 4) Water Conservation Plan; 5) Affordable Housing Program; 6) Public Facilities
Financing Plan;
b) Second Tier Environmental Impact Report
c) Tentative Subdivision Map for the EUC.
4. General Nature of Consulting Services ("Services--General"):
Prepare the Public Facilities Financing Plan (PFFP) for the EUC SPA Plan to identify the
amount, location, timing and financing mechanisms necessary to build and deliver required public
facilities and services to the project and to work with the City's Office of Budget and Management
to identify the overall, net fiscal impact that the project will have on the City in terms ofrevenues
and expenditures.
The PFFP shall consist of an independent evaluation of the project's compliance with the
City's adopted Growth Management Threshold Standards at build-out of the project, as well as
during its phasing, and provide an assessment ofthe probable short- and long-term impacts on those
standards, along with recommendations to mitigate the identified impacts, and the timing for
installation/delivery of necessary facilities and services.
The Fiscal Impact Analysis, to be prepared by the City, shall consist of an independent
evaluation of the project's fiscal impacts on the operation and maintenance budgets of the City
(General Fund). The FIA will address the costs and revenues to the City as a result of providing
infrastructure and services to the EUe. The consultant shall coordinate with the city to ensure
consistency with the PFFP.
In the course of preparing and finalizing the PFFP, the Consultant (and any of their sub-
contractors) shall attend one public forum, and up to two Planning Commission hearings and two
City Council hearings, in addition to meetings with City staff, the EIR consultant, or others as the
Planning Department deems necessary to complete the work.
5. Detailed Scope of Work ("Detailed Services"):
The following tasks are intended to represent the scope of services required in the preparation
of the subject PFFP as presented in the Request for Proposals dated August 9, 2006, in sections
19.09.060, .070 and .080 of the City's Municipal Code, and as described by Consultant's proposal
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dated September 12, 2006. Consultant shall perform the following tasks to the satisfaction of the
Director of Planning and Building.
Task 5.A Research and Analysis:
Task 5.Al Gather and review all available documents and data relating to the Otay Ranch EVC
Project. Documents and data shall include, but are not limited to, the City's General Plan
and Otay Ranch General Development Plan (GDP) Amendment applications, draft Otay
Ranch SP NEIR documents and maps together with supporting technical reports, the
approved Otay Ranch GDP, existing SPA plans and related PFFP's and ErR's. Other
documents will include Otay Ranch Master Facility Plans, Facility Technical Reports
(i.e. Traffic, Water, Sewer, Storm Drain and Water Quality Analyses), Tentative Maps,
associated conditions of approval, City resolutions of approval and development
agreements. The City of Chula Vista will make the aforementioned documents available
for our review and analysis, as necessary.
Task 5.A2 Meet with city planning and public works staff to discuss their project concerns
(including but not limited to matters related to the flexible nature of the EVC's
development to meet market demands, unique characteristics of development, mitigation
of interim impacts, phasing of improvements and potential impacts of market
conditions), project history and the current status of the Otay Ranch EVC project.
Task 5.A3 Contact the Developers Consultant Planner/Engineer to verify the proposed project
statistics (i.e., number of dwelling units, acreage, phasing, etc.).
Task 5.A4 Conduct a field trip to become farniliarwith the existing site and surrounding land uses.
Task 5.B Facilities Analysis:
Task 5.B.l Prepare an independent analysis, which will include an evaluation of the project's
compliance with the city's adopted threshold standards. The analysis will include an
evaluation of the short-term and long-term impacts, as well as impacts that may require
monitoring through long-term buildout of the EVC. In addition, the analysis will
recommend measures to mitigate potential impacts and maintain compliance with the
City's Growth Management Threshold Standards.
The analysis for the new PFFP shall include all the issues and elements identified in
Chapter 19-09 of the City's Municipal Code and shall be formatted as shown as
Attachment 2 of the RFP (dated August 14, 2006).
Task 5.B.2 Meetings & Coordination: Coordinate with City Staff to discuss the results of our
review. Meet with City Staff, other City Consultants and the project applicant, as
necessary.
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Task 5.C-Fiscal Impact:
The City of Chula Vista's Office of Budget and Analysis will prepare the fiscal impact
analysis for Otay Ranch EUC SPA Plan. The fiscal impact analysis will address the costs
and revenues (General Fund) to the City ofChula Vista related to the development of the
EUC. The fiscal impact analysis will be based upon a city-wide fiscal model currently being
prepared by ERA. The model will include the most current available budget, any changes to
City's demographic or land use characteristics and any unique features of this project.
Task 5.D- Traffic Study (Kimley-Horn):
Kimley- Horn, as a subconsultant to the ElR Consultant, will prepare the traffic study for the
Otay Ranch EUC project. Part of this contract is to conduct analysis, which can be utilized
for the PFFP analysis. The traffic study is a critical element in the PFFP. Kimley-Horn and
Burkett & Wong will meet, as necessary, and make changes to the traffic analysis as
appropriate for the PFFP.
Task 5.E-Prepare Public Facilities Financing Plan
The PFFP will provide an independent evaluation of the project compliance with the adopted
threshold standards and an assessment of both probable short and long-term impacts of the
EUC project as stated in the city's RFP dated August 9, 2006. Recommendations will be
included to mitigate impacts and maintain compliance with the City ofChula Vista's Growth
Management Standards.
Task 5.E.] Prepare and submit a preliminary draft PFFP including text and supporting graphics for
staffreview and comment (25 copies).
Task 5.E.2 Revise the draft PFFP pursuant to City Staff comments, and submit a second draft (25
copies) for staff review.
Task 5.E.3 Subsequent to the second staff review, finalize the PFFP document (includes 25 copies of
the final document + appendices, ] photo ready hard copy and CD-ROM formatted for
Microsoft Word).
6: Attendance at meetings and other coordination
The Consultant (and any oftheir subcontractors) shall attend one public forum, and up to two
Planning Commission hearings and two City Council hearings. These are in addition to meetings
with City staff, coordination with ElR consultant, or others as the Planning Department deems
necessary to complete the work. Attendance at said meetings or other methods of coordination is
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required of the Consultant on an as needed basis as determined by the City, given sufficient lead-
time (minimum 5 days) for the Consultant to schedule such coordination. It is further anticipated that
informal coordination will take place between the Consultant and the EIR consultant at various times
throughout the process.
7: Revise Drafts as City Determines Necessary
The consultant shall prepare revisions to the satisfaction of City Staff to PFFP document
based upon comments received from City Staff, Planning Commission and City Council and any
other comments from outside agencies or individuals. Said revisions shall be incorporated into the
appropriate draft or final document as outlined in the following section under "Dates or Time Limits
for Delivery of Deliverables".
8: Drafts Tentative Map Conditions of Approval
The Consultant shall prepare draft conditions of approval for the tentative map for the EUC
based on the threshold analysis of the PFFP.
9. Schedule, Milestone, Time-Limitations within which to Perform Services:
Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
Dates or Time Limits for Delivery of Deliver abIes:
Deliverable NO.1:
Delivery of the Preliminary Draft PFFP for staff review and
distribution in the form of one (1) master copy set up to print double
sided copies.
Due date: Twelve weeks after City's notice to proceed.
Deliverable No.2
Delivery of the revised Draft PFFP containing all staff comments in
the form of one (1) master copy set up to print double sided copies.
Due date: Two weeks after the consultant receives comments back
from the City's review of first draft.
Deliverable No.3
Delivery of revised Draft PFFP containing all staff comments in the
form of one (1) master copy set up to print double sided copies.
Due date: 'One week after the consultant receives comments back
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from City's review of second draft.
Deliverable No.4:
Delivery of pre-press copy of PFFP incorporating all of staff s
comments in the form of one (I) master copy set up to print double
sided copy.
Due date: 1 week after staff/consultant discuss final comments.
Deliverable NO.5:
Delivery of the Final PFFP (and incorporating the FIA) for public
hearings in the form of one (1) master copy (photo ready) set up to
print double side copies and a computer diskette file formatted for
Microsoft Word.
Due date: Five days after City delivers final (screencheck) comments
to the Consultant.
Deliverable No.6:
Delivery of Final Document to City Staff in the form of one (1)
master copy set up to print double-sided copies to be incorporated
into binders plus draft conditions of approval for the tentative map.
Due date: Within one week following City Council hearing.
Deliverable No.7:
Delivery of draft conditions of approval for the tentative map.
Due date: Two week after the consultant delivers final draft.
Dates for completion of all Consultant services: Twelve months from the effective date of
agreement or as extended by the Director of Planning in the Director's sole discretion.
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10. Documents to be provided by Applicant to Consultant:
(X) site plans/draft SPA document (X) grading plans ( ) architectural elevations (X) project
description (X) technical studies including water, wastewater, drainage, traffic (X) phasing plan.
11. Contract Administrators:
City: Richard M. Rosaler, AICP
Principal Planner
City of Chula Vista Planning and Building Department
276 Fourth Avenue
Chula Vista, CA 91910
Applicant: Todd Galarneau
McMillin Otay Ranch, LLC
2750 Womble Road
San Diego, CA 92106
Consultant: Anthony G. Ambrose, AICP
Burkett and Wong Engineers, Inc.
3434 Fourth Avenue
San Diego, CA 92103
12. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest
Code:
(X)
Not Applicable.
( )
Category No.1.
( )
Category No. 2.
( )
Category No. 3.
( )
Category No.4.
( )
Category No. 5.
Not an FPPC Filer.
Investments and sources of income.
Interests in real property.
Investments, interest in real property and sources of income
subject to the regulatory, permit or licensing authority of the
department.
Investments in business entities and sources of income , which
engage in land development, construction or the acquisition
or sale of real property.
Investments in business entities and sources of income of the
type which, within the past two years, have contracted with
the City ofChula Vista (Redevelopment Agency) to provide
12/1/06
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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.
13. 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).
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Exhibit B
Additional Recitals
WHEREAS, the Applicant has deposited or will deposit an initial sum for the processing of
requests for proposals, draft and final Public Facilities Financing Plans (PFFP), and all other
necessary documents as outlined in Exhibit A, and
WHEREAS, public notice of the required consulting services was given to the consultants
included on the City's list of prospective consultants for preparation of Public Facilities Financing
Plans (PFFP), inviting prospective consultants to submit proposals for preparation ofthe EUC SPA
PFFP, and
WHEREAS, the selection committee has, in accordance with Section 2.56.110 of the Chula
Vista Municipal Code, recommended the Consultant noted in Exhibit A to perform the required
services for the City, and
WHEREAS, the Contract Administrator has negotiated the details of this Agreement in
accordance with procedures set forth in Sections 2.56.11 0 of the Chula Vista Municipal Code.
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Exhibit C
Compensation Schedule and Deposit: Terms and Conditions
( X ) Single Fixed Fee Arrangement
F or performance of all general and detailed services of Consultant prescribed in Exhibit A,
paragraphs 4 and 5, Applicant shall pay a single fixed fee, all of which is to be deposited upon
execution of this agreement. The other one-half shall be due as described under the Deposit section
of this exhibit. The City shall pay Consultant in increments and at the times or milestones set forth
below:
(X) Single Fixed Fee Amount: $39,780.00
Milestone
Amount/Percentage of
Fixed Fee to be Paid
I.
Signing of this agreement by all parties and
upon request by the Consultant
$9,945/25%
2.
Deliverable #1 (Preliminary Draft PFFP)
$13,923/35%
"
.J.
Deliverable #2 (Revised Draft PFFP)
$5,967/15%
4.
Deliverable #5 (Final PFFP)
$5,967/15%
5.
10% retention amount
$3,978/10%
(X) Security for Performance
( ) Performance Bond $
( ) Letter of Credit, $
( ) Other Security:
( ) Type
( ) Amount: $
(X) Retention. Ifthis 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 Even,
listed below, has occurred:
(X) Retention Percentage: 10%
() Retention Amount
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Retention Release Event:
(X) Completion of All Consultant Services to the satisfaction of the
Director of Planning and Building.
( ) Other:
( ) 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 General
and Detailed Services herein required of Consultant for $39,780.00 including all Materials, and other
"reimburseables" ("Maximum Compensation").
Rate Schedule
Category of Employee
of Consultant
Hourly Rate
Burkett and Wong:
Principal
Engineer/Planner
Technician
Asst. Engineer/Planner
Clerical
$140
$110
$ 75
$ 70
$ 45
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1.3.1-.
**************
Deposit
(X) Deposit Amount: At execution of agreement - $39,780.00
(X) Use of Deposit to Pay Consultant.
Notwithstanding the sole duty and liability of Applicant to pay Consultant, if this
paragraph is "checked", upon City's receipt of billing by Consultant, and determination by
City in good faith that Consultant's billing is proper, a judgment for which Applicant agrees
to hold City harmless and waive any claim against City, City shall pay Consultant's billing
from the amount of the Deposit. If Applicant shall protest the propriety of a billing to City in
advance of payment, City shall consider Applicant's protest and any evidence submitted prior
to the due date for the payment of said bill by Applicant in making its good faith
determination of propriety.
( X) 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
(X) Other: On the 10th day of each month following completion of each
milestone
C. City's Account Number:
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