HomeMy WebLinkAbout2006/08/01 Item 5
COUNCIL AGENDA STATEMENT
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Item
Meeting Date 08/01106
ITEM TITLE: Resolution Approving a first amendment to the agreement with
Best Best & Krieger, LLP, for the Special Tax Legal Counsel Services
required for the formation of Maintenance Community Facilities District No.
13-M and the annexation to Improvement Area A of the existing Otay Ranch
Preserve Maintenance District (CFD 97-2) for the Otay Ranch Village Two
Project, and authorizing the Mayor to execute said amendment.
Resolution Approving the initiation of proceedings to consider
the formation of Maintenance Community Facilities District No.13-M (Otay
Ranch Village Two) for Otay Project L.P. and approving the form of the
Reimbursement Agreement.
SUBMITTED BY: Acting Director of Engineering-j)?
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REVIEWED BY: InterimCityManager II (4/5thsVote: Yes_No-Xl
Under the existing agreement with Best Best & Krieger, LLP, the scope of work is to provide special
tax legal counsel services for the formation of Maintenance Community Facility District for Otay
Ranch Village Seven pursuant to the "Mello-Roos Community Facilities Act of 1982". Tonight,
Council will consider an amendment to the agreement with Best Best & Kreiger, LLP to expand the
scope of work to include similar legal counsel services for the formation of Maintenance Community
Facilities District for the Otay Ranch Village Two Project. Also, in compliance with Council Policy
regarding the establishment of Commlmity Facility Districts, Otay Project L.P. has submitted an
application for establishing Community Facilities District No. 13-M ("CFD-13M") to fund the
maintenance of certain public improvements for the Otay Ranch Village Two Project.
RECOMMENDATION: That Council approves the resolution approving the first amendment to
the agreement with Best Best & Krieger, LLP for Special Tax Legal Counsel Services required for
the formation of the Maintenance Community Facilities District No. 13-Mand for the annexation to
Improvement Area A of the existing Otay Ranch Preserve Maintenance District (CFD 97-2) for the
Otay Ranch Village Two Project and adopt the resolution initiating proceedings for the formation of
CFD-13M and authorize the Mayor to execute said amendment and reimbursement agreement.
BOARDS/COMMISSIONS RECOMMENDATION: N/A.
DISCUSSION:
Best Best & Krie!!er
On March 22, 2005 City Council by Resolution No. 2005-083 approved the agreement "Original
Agreement" (Attachment No. I) with Best Best & Krieger, LLP for Special Legal Counsel Services
for the formation of Maintenance Community Facilities District, pursuant to the "Mello-Roos
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Meeting Date 08/01/06
Community Facilities Act of 1982" for Otay Ranch Village Seven. The approval of this first
amendment (Attachment No.2) will authorize the law firm Best Best & Krieger to continue to
provide special legal counsel services required for the formation of CFD-13 M and the annexation to
improvement Area "A", CFD 97-2 of the Otay Ranch Preserve Maintenance District for the Otay
Ranch Village Two Project for a fee not to exceed $20,000.
Pursuant to previously approved agreements, the Consultant Best Best & Kreiger, LLP has been
providing the Special Tax Legal Counsel necessary for the formation of many Maintenance
Community Facilities Districts within the City ofChula Vista. The scope of their services included
in the previous agreements was to provide Special Tax Legal Counsel for the formation of
Maintenance Community Facilities Districts within the City. Warren Diven, currently "partner" to
Best Best & Krieger, would be lead counsel for the firm and would be responsible for the delivery of
all legal services with this amendment. Mr. Diven was originally selected by staff based on the
quality of previous similar work performed in association with the City's formation of various
financing districts over a period of 15 years. Mr. Diven is very familiar with the current
development in eastern Chula Vista. He has provided legal services to the City for the formation of
major open space districts in the area (Eastlake I, Rancho Del Rey, Sunbow, and Otay Ranch). In
addition, he has been the legal counsel on the majority ofthe existing assessment districts and CFDs
formed to finance the construction of backbone facilities serving the major developments in the area.
Initiation of the CFD
The "Mello-Roos Act" allows for the creation of Community Facilities District (CFD) for financing
the maintenance of public facilities needed for the City or development. The CFD will levy a special
tax that is collected with the property taxes. There is no direct cost to the City.
Tonight's agenda will start the formation process and sets in motion the required steps and schedules
for the authorization to levy special taxes with the CFD.
Procedure for formation of Community Facilities District No. 13M
Following are the key actions that Council would take during the proceedings for CFD-13M:
1. Approval of the initiation of proceedings for formation of the proposed CFD and
approval of a Reimbursement Agreement (Attachment No.3) to require that the Otay
Ranch Company advance funds to the City to pay for all costs incurred by the City in
undertaking the proceedings to form CFD-13M (up for consideration tonight).
2. Approval of Resolution of Intention (ROI) to establish CFD-13M.
3. Adopting the boundaries of the CFD and ordering the preparation of the Special Tax
Report.
4. Holding public hearing, approval of Resolution to Formation (ROF), voter's election,
and levy of the special taxes.
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Exhibit A presents the boundaries of the proposed CFD-13M, which includes parcels, located within
Otay Ranch Village Two (818.9 gross acres). At build out there will be 2,786 residential units, IOJ
acres elementary school site, 59.6 acres of parks and 6.1 acres Community Purpose Facility.
The proposed district will finance the maintenance of improvements including, but not limited to,
open space lots, street medians and parkways along City's Class III Streets or higher, detention
basins, and other miscellaneous landscaping improvements at subdivision entries and intersections
and landscaped buffer zones located along major roadways. A complete list of improvements will be
specified in the Special Tax Report. The complete scopes of work are included in the agreement and
attached to the Resolutions.
DECISION MAKER CONFLICTS: Staff has reviewed the property holdings of the City Council
and has found no such holdings within 500' of the property which is the subject of this action.
FISCAL IMPACT: The Developer will solely fund the costs involved in this first amendment to
the Original Agreement and the CFD Formation. The amount to be paid to Best Best & Krieger,
LLP is not to exceed $20,000 for their assistance in the fo=ation of CFD-13M and annexation to
Improvement Area A. All costs will be paid through deposit accounts funded by the developer.
Attachments:
Attachment I - Original Agreement with Best Best & Krieger
Attachment 2 - First Amendment to Original Agreement
Attachment 3 - Reimbursement Agreement for CFD-13M
Exhibit A- Otay Ranch Village 2 Site Utilization map
J: \Engineer1AGENDA\CAS2006\08-01.06CAS_I sf amend & Reimb Agr.doc
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ATTACHMENT 1
Parties and Recital Page(s)
Agreement between
City of Chula Vista
and
Best Best & Krieger LLP
For Special Counsel Legal Services for the Formation of
Maintenance Community Facilities District within the City
of Chula Vista Pursuant to the Hello-Roos Community
Facilities Act of 1982
This agreement ("Agreement"), dated ~J'~ d-d:-~ for
the purposes of reference only, and effectiv 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 Best Best & Krieger LLP
the entity indicated on the attached Exhibit A, paragraph 4, as
Consultant, whose business form is set forth on Exhibit A,
paragraph 5, and whose place of business and telephone numbers are
set forth on Exhibit A, paragraph 6 ("Consultant"), and is made
with reference to the following facts:
Recitals
Whereas, the City desires to initiate proceedings pursuant to
the Mello-Roos Community Facilities Act of 1982 and the City of
Chula Vista Community Facilities District Ordinance enacted
pursuant to the powers reserved by the City of Chula Vista unde~
Sections 3, 5 and 7 of Article XI of the Constitution of the State
of California to form a community facilities district for the
purpose of providing for the financing of the costs of public
infrastructure maintenance for Otay Ranch Village Seven Project as
further defined in Exhibit A of this Agreement; and
Whereas, the City desires to retain the services of special
counsel to assist and advise the City regarding the proceedings to
form such community facilities district and the ongoing
administration of such 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
within the time frames herein provided all in accordance with the
terms and conditions of this Agreement; and,
Standard Form Two Party Agreement (Fourteenth Revision)
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(End of Recitals. Next Page starts Obligatory Provisions.)
Standard Form Two Party Agreement (Fourteenth Revision)
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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. Additional Services
In addition to performing the Defined Services herein set
forth, City may require Consultant to perform additional consulting
services related to the Defined Services ("Additional Services"),
and upon doing so in writing, if they are within the scope of
services offered by Consultant, Consultant shall perform same on a
time and materials basis at the rates set forth in the "Rate
Schedule" in Exhibit A, paragraph 11 (C), unless a separate fixed
fee is otherwise agreed upon. All compensation for Additional
Services shall be paid monthly as billed.
Standard Form Two Party Agreement (Fourteenth Revision)
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E. Standard of Care
Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services, shall perform in a
ma=er 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 co=ection with the Services
required to be rendered, are protected against the risk of loss by
the following insurance coverages, in the following categories, and
to the limits specified, policies of which are issued by Insurance
Companies that have a Best's Rating of "A, Class V" or better, or
shall meet with the approval of the City:
Statutory Worker's Compensation
Liability Insurance coverage in the
attached Exhibit A, Paragraph 9.
Insurance and Employer's
amount set forth in the
Commercial General Liability Insurance including Business
Automobile Insurance coverage in the amount set forth in Exhibit A,
Paragraph 9, combined single limit applied separately to each
project away from premises owned or rented by Consultant, which
names City as an Additional Insured, and which is primary to any
policy which the City may otherwise carry ("Primary Coverage"), and
which treats the employees of the City in the same manner as
members of the general public ("Cross-liability Coverage").
Errors and Omissions insurance, in the amount set forth in
Exhibit A, Paragraph 9, unless Errors and Omissions coverage is
included in the General Liability policy.
G. Proof of Insurance Coverage.
(~) Certificates of Insurance
Consultant shall demonstrate proof of coverage herein
required, prior to the commencement of services required under this
Agreement, by delivery of Certificates of Insurance demonstrating
same, and further indicating that the policies may not be canceled
without at least thirty (30) days written notice to the Additional
Insured.
(2) Policy Endorsements Required
In order to demonstrate the Additional Insured Coverage,
Primary Coverage and Cross-liability Coverage required under
Standard Form Two Party Agreement (Fourteenth Revision)
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Consultant's Commercial General Liability Insurance Policy,
Consultant shall deliver a policy endorsement to the City
demonstrating same, which shall be reviewed and approved by the
Risk Manager.
H. Security for Performance
(l) 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 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.
Standard Form Two Party Agreement {Fourteenth Revision}
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I. Business License
Consul~an~ agrees ~o ob~ain a business license from ~he Ci~y
and to otherwise comply with Title 5 of the Chula Vista Municipal
Code.
2. Duties of ~he Ci~y
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 direc~ion and guidance to achieve ~he
objec~ives of this agreement. The City shall permit access to its
office facilities, files and records by Consultant throughout the
~erm of ~he agreement. In addition thereto, Ci~y agrees ~o provide
the information, da~a, i~ems and ma~erials se~ for~h on Exhibi~ A,
Paragraph 10, and wi~h the further understanding that delay in the
provision of ~hese ma~erials beyond 30 days after au~horization to
proceed, shall cons~i~ute a basis for ~he jus~ifiable delay in the
Consul~an~'s performance of this agreemen~.
B. Compensation
Upon receip~ of a properly prepared billing from Consul~an~
submi~~ed to ~he Ci~y periodically as indicated in Exhibit A,
Paragraph IB, bu~ in no even~ more frequen~ly ~han mon~hly,on the
day of the period indicated in Exhibi~ A, Paragraph 1B, City shall
compensa~e Consul~an~ for all services rendered by Consultan~
according ~o ~he ~erms and condi~ions se~ forth in Exhibit A,
Paragraph 11, adjacent to ~he governing compensa~ion rela~ionship
indica~ed by a "checkmark" next to the appropriate arrangemen~,
subjec~ to ~he requiremen~s for retention se~ forth in paragraph 19
of Exhibit A, and shall compensate Consultan~ for out of pocket
expenses as provided in Exhibi~ A, Paragraph 12.
All billings submit~ed by Consultan~ shall con~ain sufficien~
informa~ion as ~o ~he proprie~y of ~he billing ~o permi~ ~he City
to evalua~e ~ha~ the amoun~ due and payable ~he reunder is proper,
and shall specifically contain the City's account number indicated
on Exhibi~ A, Paragraph 1B (C) ~o be charged upon making such
payrnen~.
3. Administra~ion of Con~rac~
Each party designa~es 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.
Standard Form Two Party Agreement {Fourteenth Revision}
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4 . Term
This Agreement shall terminate when the Parties have complied
with all executory provisions hereof.
5. Liquidated Damages
The prQvisions of this section apply if a Liquidated Damages
Rate is provided in Exhibit A, Paragraph 14.
It is acknowledged by both parties that time is of the essence
in the completion of this Agreement. It is difficult to estimate
the amount of damages resulting from delay in performance. The
parties have used their judgment to arrive at a reasonable amount
to compensate for delay.
Failure to complete the Defined Services within the allotted
time period specified in this Agreement shall result in the
following penalty: For each consecutive calendar day in excess of
the time specified for the completion of the respective work
assignment or Deliverable, the consultant shall pay to the City, or
have withheld from monies.due, the sum of Liquidated Damages Rate
provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate").
Time extensions for delays beyond the consultant's control,
other than delays caused by the City, shall be requested in writing
to the City's Contract Administrator, or designee, prior to the
expiration of the specified time. Extensions of time, when
granted, will be based upon the effect of delays to the work and
will not be granted for delays to minor portions of work unless it
can be shown that such delays did or will delay the progress of the
work.
6. Financial Interests of Consultant
A. Consultant is Designated as an FPPC Filer
If Consultant is designated on Exhibit A, Paragraph 15, as an
"FPPC filer", Consultant is deemed to be a "Consultant" for the
purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the
City Clerk on the required Statement of Economic Interests in such
reporting categories as are specified in Paragraph 15 of Exhibit A,
or if none are specified, then as determined by the City Attorney.
B. Decline to Participate
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
any way attempt to use Consultant's position to influence a
Standard Form Two Party Agreement (Fourteenth Revision)
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governmental decision in which Consultant knows
know Consultant has a financial interest
compensation promised by this Agreement.
or has reason to
other than the
C. Search to Determine Economic Interests
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant warrants and represents that Consultant has
dilige~tly conducted a search and inventory of Consultant's
econom:LC interests, as the term is used in the regulations
promulgated by the Fair Political Practices Commission, and has
determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with
Consultant's duties under this agreement.
D. Promise Not to Acquire Conflicting Interests
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during the
term of this Agreement which would constitute a conflict of
interest as prohibited by the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will immediately advise the City Attorney of City if Consultant
learns of an economic interest of Consultant's, which may result in
a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated there under.
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 subj ect 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 I 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.
Standard Form Two Party Agreement (Fourteenth Revision)
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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
1. Indemnification and Hold Harmless Agreement
With respect to any liability, including but not limited to
claims asserted or costs, losses, attorney fees, or payments for
injury to any person or property caused or claimed to be caused by
the acts or omissions of the Consultant, or Consultant's employees,
agents, and officers, arising out of any services performed
involving this project, except liability for Professional Services
covered under Section X.2, the Consultant agrees to defend,
indemnify, protect, and hold harmless the City, its agents,
officers, or employees from and against all liability. Also
covered is liability arising from, connected with, caused by, or
claimed to be caused by the active or passive negligent acts or
omissions of the City, its agents, officers, or employees which may
be in combination with the active or passive negligent acts or
omissions of the Consultant, its employees, agents or officers, or
any third party. The Consultant's duty to indemnify, protect and
hold harmless shall not include any claims or liabilities arising
from the sole negligence or sole willful misconduct of the City,
its agents, officers or employees. This section in no way alters,
affects or modifies the Consultant's obligation and duties under
Section Exhibit A to this Agreement.
2. Indemnification for Professional Services
As to the Consultant's professional obligation, work or
services involving this Project, the Consultant agrees to
indemnify, defend and hold harmless the City, its agents, officers
and employees from and against any and all liability, claims,
costs, and damages, including but not limited to, attorneys fees,
losses or payments for injury to any person or property, caused
directly or indirectly from the negligent acts, errors or omissions
of the Consultant or Consultant's employees, agents or officers;
provided, however, that the Consultant's duty to indemnify shall
not include any claims or liability arising from the negligence or
willful misconduct of the City, its agents, officers and employees.
Standard Form Two Party Agreement (Fourteenth Revision)
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8. Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a
timely and proper ma=er 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,
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.
Stanaara Form Two Party Agreement (Fourteenth Revision)
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C~ty hereby consents to the ass~gnment of the port~ons 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
Un~ted States or ~n 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 rej ect or accept
Consultant's work products. Consultant and any of the Consultant's
agents, employees or representatives are, for all purposes under
this Agreement, an independent contractor and shall not be deemed
to be an employee of City, and none of them shall be entitled to
any benefits to which City employees are entitled including but not
limited to, 'overtime, retirement benefits, worker's compensation
benefits, injury leave or other leave benefits. Therefore, City
will not withhold state or federal income tax, social security tax
or any other payroll tax, and Consultant shall be solely
responsible for the payment of same and shall hold the City
harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this
agreement, against the City unless a claim has first been presented
in writing and filed with the City and acted upon by the City in
accordance with the procedures set forth in Chapter 1.34 of the
Chula Vista Municipal Code, as same may from time to time be
amended, the provisions of which are incorporated by this reference
as if fully set forth herein, and such policies and procedures used
by the City in the implementation of same.
Standard Form Two Party Agreement (Fourteenth Revision)
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Upon request by City, Consultant shall meet and confer in good
faith with City for the purpose of resolving any dispute over the
terms of this Agreement.
15. Attorney's Fees
Should a dispute arising out of this Agreement result in
litigation, it is agreed that the prevailing party shall be
entitled to a judgment against the other for an amount equal to
reasonable attorney's fees and court costs incurred. The
"prevailing party" shall be deemed to be the party who is awarded
substantially the relief sought.
16. Statement of Costs
In the event that Consultant prepares a report or document, or
participates in the preparation of a report or document in
performing the Defined Services, Consultant shall include, or cause
the inclusion of, in said report or document, a statement of the
numbers and cost in dollar amounts of all contracts and
subcontracts relating to the preparation of the report or document..
17. Miscellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consultant
shall have no authority to act as City's agent to bind City to any
contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the
Consultant and/or their principals is/are licensed with the State
of California or some other state as a licensed real estate broker
or salesperson. Otherwise, Consultant represents that neither
Consultant, nor their principals are licensed real estate brokers
or salespersons.
C. Notices
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 b~
deemed to have been properly given or served if personally served
or deposited in the United States mail, addressed to such party,
postage prepaid, registered or certified, with return receipt
requested, at the addresses identified herein as the places of
business for each of the designated parties.
D. Entire Agreement
Standard Form Two Party Agreement (Fourteenth Revision)
Page 12
__. ____ _0- _.
- ~ .~_.._.,-_.._,--_.__._--------- ...-----.-
___ 5~l_5_
.-.----,.. --- -- ---..
"--------
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.]
Standard Form Two Party Agreement (Fourteenth Revision)
Page 13
'-'-".
... 5-16__
....'...__...~.-.~ ".-."----
Signature Page to
Agreement between City of Chula Vista and
Best Best & Krieger LLP
For Special Counsel Legal Services for the Formation of
Maintenance Community Facilities District within the City
of Chula Vista Pursuant to the Kello-Roos Community
Facilities Act of 1982
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
DatedO~
, :2oS--
City
Chula Vista
cJZL !L
Padilla, Mayor
Attest:
-_ 1U 1.I.A~~r> ../
Susan Bigelow, C ty Clerk
as to form:
(
City Attorney
Dated:
3 -Ilf-o~
Best Best & Krieger LLP
By: It.\''~~D~\....c2.I.^
Warren Diven, Partner
Exhibit List to Agreement
) Exhibit A.
Standard Form Two Party Agreement (Fourteenth Revision)
Page 14
-----------
.~ ...- .... .-.."...
"'0"' _.. _ no
______.5::11
..--..-.-..----. -------
--------
Exhibit A
to
Agreement between
City of Chula Vista
and
Best Best and Krieger
1. Effective Date of Agreement:
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation
of the State of California
() Redevelopment Agency of the City of Chula Vista, a
political subdivision of the State of California
() Industrial Development Authority of the City of Chula
Vista, a
() Other:
[insert business form]
, a
("City")
3. Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant:
Best Best & Krieger LLP
5. Business Form of Consultant:
( ) Sole proprietorship
(X ) Partnership
( ) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
402 West Broadway, 13~ Floor
San Diego, California 92101-3542
Voice Phone (619) 525-1300 general
619) 525-1337 Warren Diven
Fax Phone (619) 233-6118
Standard Form Two Party Agreement (Fourteenth Revision)
Page 15
.-.--
.... ... 5:-1L._..
- - - ,.--. --'-"-
_.,- ----
7. General Duties:
Consultant shall provide special counsel legal services to the
City pertaining to the formation of community facilities
district for the McMillin Village 7 project, (' 'Community
Facilities District") to finance the public infrastructure
maintenance and, on an as needed basis, pertaining to the
ongoing administration of the Community Facilities District
formed for such purposes.
I 1
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
Formation of Community Facilities District.
Consultant shall provide the following legal services to
the City pertaining to the formation of each Community
Facilities District:
1. Preparation of all resolutions, notices, contracts,
and other papers and documents required in the
formation proceedings;
2. Advise the City staff and other consultants
regarding the required formation procedures and
examine the formation proceedings, step by step, as
such procedures are undertaken;
3. Appear at all hearings required as a part of the
formation proceedings, and attend any other meeting
where attendance is required or requested
4. Review the Report of the Special Tax Consultant as
it relates to the formation proceedings for each
community facilities district;
5. Review and examine the map showing the area and
boundaries of each community facilities district;
6. Review the method and formula utilized by the
Special Tax Consultant for the apportionment and
levy of the special tax within each communit:t'
facilities district;
7. Assist in any election procedure, as necessary
and/or required, including the preparation of the
form of all required election documents;
Standard Form Two Party Agreement (Fourteenth Revision)
Page 16
--'-"-.-.---
. n' _n_ ..._."'
5::J_L__________
~_..~-----
8. Prepare the Notice of Special Tax Lien for each
community facilities district;
9. Provide instruction and advice to City staff and
City consultants related to any of the foregoing;
and
10. Provide any and all other customary special counsel
services relating to the formation proceedings.
Onqoinq Administration of Communi tv Facilities Distric~
In addition to the foregoing services pertaining to the
formation of the community facilities district,
Consultant shall provide the following additional spectl
counsel services to the City related to the ongoing
administration of the community facilities district:
1. Advise and assist City staff and City cOnsultants
regarding:
(a.) Calculation of armual special tax rate and
levy of armual special tax;
(b.) Interpretation and application of special tax
formula;
(c.) Annexation of territory to a community
facilities district; apportionment of special
taxes or authorized maintenance;
(d.) Cancellation or cessation of the Notice of
Special Tax Lien; and
(e.) Other issues related to the ongoing
administration of the community facilities
district and the levy of special taxes.
2. Preparation of resolutions, notices, contracts, and
other papers and documents required related to any
of the foregoing.
3. Appear at all City Council meetings related to any
of the foregoing and attend any other meeting with
City staff and City consultants related to any of
the foregoing where attendance is required or
requested by the City.
4. Provide any and all other customary special counsel
services relating to the ongoing administration of
the community facilities district.
Such legal services pertaining to the ongoing
administration of the community facilities district woud
be provided only on an "as needed" basis upon the
request of the City.
Standard Form Two Party Agreement (Fourteenth Revision)
Page 17
._-~-----_.
---..-....-...--.. ____................._ _. 5_..2.0.___...._ __ _.. ______
-.- ----
B. Date for Commencement of Consultant Services:
(x) Same as Effective Date of Agreement
( ) Other:
C. Dates or Time Limits for Delivery of Deliverables:
Deliverable No. 1 : N/A
Deliverable No. 2: N/A
Deliverable No. 3 : N/A
D. Date for completion of all Consultant services:
N/A
9. Insurance Requirements:
(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:
Such documents as are contemplated in the detailed scope of
work set forth above.
11. Compensation:
A. () Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant
as herein required, City shall pay a single fixed fee in the
amounts and at the times or milestones or for the Deliverables
set forth below:
Single Fixed Fee Amount: , payable as
follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
Standard Form Two Party Agreement (Fourteenth Revision)
Page 18
,"_.._- - ------..---..--. ------..-....-.
- -..-.- -"-".
.5.=2..L_ ___ ______.
~_._._---
) 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 City
shall have issued a notice to proceed to Consultant as to said
Phase.
Phase Fee for Said Phase
1. $
2. $
3. $
Standard Form Two Party Agreement (Fourteenth Revision)
Page 19
-..-- -___. __..." _"'_n _.u....,..._ __.__ ___. _~ _ .....
_ __ _ 5.-:".2.2-_________
-.------
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. (X) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as
herein required. City shall pay Consultant for the productive hours
of time spent by Consultant in the performance of said Services, at
the rates or amounts set forth in the Rate Schedule herein below
according to the following terms and conditions:
(l) () Not-to-Exceed Limitation on Time and Materials
Arrangement
Notwithstanding the expenditure by Consultant of
time and materials in excess of said Maximum Compensatmn
amount. Consultant agrees that Consultant will perform
all of the Defined Services herein required of Consultat
for $ including all Materials, and other
"reimbursables" ("Maximum Compensation").
(2) (X) Limitation without Further Authorization an
Time and Materials Arrangement
Standard Form Two Party Agreeme~t (Fourteenth Revision)
Page 20
--..-..-----.---.--- ..-----------.--... ----".---
.________5=23--_______
-..- ----
At such time as Consultant shall have incurred time
and materials equal to $10.000 as to the community
facilities district (The "Authorization Limit" ) ,
Consultant shall not be entitled to any additional
compensation without further authorization issued in
writing and approved by the City. Nothing herein shall
preclude Consultant from providing additional Servicesat
Consultant's own cost and expense.
Rate Schedule
Category of Employee
of Consultant Name Hourlv Rate
Partners and Of
Counsel Attorneys Warren Diven $225
and Various Others
Senior Associates
with 4 or more years
of excerience Various $195
Junior Associates
with 4 or less years
of experience Various $175
Paralegals Various $125
Hourly rates may increase
rendered after [month]. 19 ,
services is caused by City.
12. Materials Reimbursement Arrangement
by 6% for services
if delay in providing
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.
() Reports, not to exceed $
(X) Copies. not to exceed Consultant's current rate
Cost or Rate
(x) Travel, not to exceed IRS Rate
() Printing, not to exceed $
(X) Postage, not to exceed Actual Cost
(X) Delivery, not to exceed Actual Cost
() Long Distance Telephone Charges,
not to exceed $
(X) Other Actual Identifiable Direct Costs:
Standard Form Two Party Agreement (Fourteenth Revision)
Page 21
'_--.-.,-. .---.--..---..-,--- .---..--.- .. - -
H,__ 5:-2L_____n
---------
Facsimile, not to exceed Consultant's current rate
~3. Contract Administrators:
City:
Sohaib Al- Agha, Senior Civil Engineer
Consultant:
Warren Diven
Best Best & Krieger LLP
402 West Broadway, ~3~ Floor
San Diego, California 92~0~-3S42
Telephone: (6~9}S2S-1337
Fax: (6~9}233-6~~8
E-mail: wbdiven@bbklaw.com
~4. Liquidated Damages Rate: N/A
$ per day.
Other:
~S. Statement o~ Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
(X Not Applicable. Not an FPPC Filer.
( FPPC Filer
Category No.~. Investments and sources of income.
Category No.2. Interests in real property.
Category No.3. Investments, interest in real
property and sources of J.ncome subject to the
regulatory, permit or licensing authority of the
department.
Category No.
and sources
development,
sale of real
4. Investments in business entities
of income which engage in land
construction or the acquisition or
property.
Category No. S. 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 entitie$
and sources of income of the type which, within the
Standard Form Two Party Agreement (Fourteenth Revision)
Page 22
...-....--.--.-..
. .._- - -
. 5-2.5 u
-.-.. "-.---" --.--.- -. -.--
-..-.----
~
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: N/A
_None
18 Bill Processing:
A. Consultant's Billing to be submitted for the following
period of time:
( X) Monthly
( ) Quarterly
( ) Other:
B. Day of the Period for submission of Consultant's Billing:
) First of the Month
) 15th Day of each Month
x) End of the Month
) Other:
C. City's Account Number:
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
Standard Form Two Party Agreement (Fourteenth Revision)
Page 23
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__.___h______. ._"_'._ _......_..... .._____. .......
5=2.6.____... ....n ., ._
-.------
requiring the payment of compensation to the Consultant
sooner, the City shall be entitled to retain, at their
option, either the following "Retention Percentage" or
"Retention Amount" until the City determines that the
Retention Release Event, listed below, has occurred:
Retention Percentage: %
Retention Amount: $
Retention Release Event:
( ) Completion of All Consultant Services
( ) Other:
Standard Form Two Party Agreement (Fourteenth Revision)
Page 24
__ .__ ___.__ __._ .._._ .___ ____. ."__,____. _____.. ..__ . ___ .n.
5_::2L____ _
- ._.__..__~._ ___n_o
-- ---
RESOLUTION NO.2006-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A FIRST AMENDMENT TO
THE AGREEMENT WITH BEST BEST & KRIEGER, LLP, FOR
SPECIAL COUNSEL LEGAL SERVICES REQUIRED FOR
THE FORMATION OF MAINTENANCE COMMUNITY
FACILITIES DISTRICT NO. I3-M AND THE ANNEXATION
TO IMPROVEMENT AREA A OF THE EXISTING OTAY
RANCH PRESERVE MAINTENANCE DISTRICT (CFD 97-2)
FOR THE OTAY RANCH VILLAGE TWO PROJECT, AND
AUTHORIZING THE MAYOR TO EXECUTE THE
AMENDMENT.
WHEREAS, Best, Best & Krieger, LLP, pursuant to an agreement approved by City
Council Resolution No. 2005-083, has been providing special legal counsel services, necessary
for the formation of maintenance Community Facilities District for Otay Ranch Village Seven,
pursuant to the "Mello-Roos Community Facilities Act of 1982"; and
WHEREAS, staff is recommending that Best, Best & Krieger's agreement be amended to
expand the scope of work to include similar legal counsel services for the formation of
Maintenance Community Facilities District 13-M and the annexation to Improvement Area A of
the existing Otay Ranch Preserve Maintenance District (CFD 97-2) for Otay Ranch Village Two
Project for a fee not to exceed $20,000; and
WHEREAS, Warren Diven, a partner at Best Best & Krieger, would be lead counsel for
the firm and would be responsible for the delivery of all legal services for this amendment to the
agreement; and
WHEREAS, Mr. Diven was selected based on the quality of previous similar work
performed in association with the City's formation of various fmancing districts over a period of
15 years, his familiarity with the current development in eastern Chula Vista, and his provision
of legal services to the City for the formation of major open space districts in that area (Eastlake
I, Rancho Del Rey, Sunbow, and Otay Ranch); and
WHEREAS, in addition, Mr. Diven has been the legal counsel on all the existing
assessment and community facilities districts formed to finance the construction of backbone
facilities serving the major developments in the area.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula
Vista, approves the First Amendment to the Agreement with Best, Best & Krieger, LLP for
Special Counsel Legal Services for the Formation of Maintenance Community Facility District
within the City of Chula Vista pursuant to the Mello-Roos Community Facilities Act of 1982, a
copy of which shall be kept on file in the Office of the City Clerk.
5-28
Resolution
Page 2
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized and directed to execute the First Amendment on behalf of the City.
Presented by
Approved as to form by
Leah Browder
Acting Director of Engineering
~~ /1- L~
Ann Moore
City Attorney
} "\Engineer\LANDDEV\CFD's\CFD13M\Reso Best Best Krieger Agm.doc
5-29
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
\-Ci!~ a~~
Ann Moore
City Attorney
Dated: July 26, 2006
CFD Reimbursement Agreement for Otay Ranch
Village Two, CVT No. 06-05 under the provisions of the
"Mello-Roos CFD Act of 1982"
5-30
ATTACHMENT 3
COMMUNITY FACILITIES DISTRICT REIMBURSEMENT AGREEMENT
(Otay Project, LP)
THIS AGREEMENT is made and entered into this day of August 2006, by and between the CITY
OF CHULA VISTA, a charter city ("City"), and OTA Y PROJECT, L.P., a California limited Partnership
("Applicant").
RECITALS
A. The Applicant has made application with the City to request that the City 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 maintenance of certain public improvements. The maintenance of
such public improvements is required as a precondition to the development of properties owned
and/or to be developed by the Applicant within that area of the City commonly known as Otay Ranch
Village Two (Chula Vista Tract No. 06-05).
B. Applicant agrees 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 (the "Proceedings").
C. The parties hereto wish to enter into an Agreement to memorialize the terms and conditions pursuant
to which Applicant shall advance monies and the monies so advanced may, subject to certain
conditions contained herein, be reimbursed or credited against future special tax obligations.
AGREEMENT
The parties hereto, for mutual consideration, agree as follows:
SECTION 1. Advances.
A. Applicant 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:
1. Special Tax Consultant services;
2. Special Counsel Legal Consultant
3. City staff and City Attorney time.
All such costs and expenses are collectively referred to as the "Formation Costs."
B. Advances shall be made to the City pursuant to the following schedule:
J: \En.gineer\LANDDEV\CFD's\ Village 2- Maintenance CFD13M\Reimbursement Agreement_ORC.doc
I
5-31
I. Applicant has advanced to the City the sum of$59,500, receipt of which is acknowledged by
the City.
2. If monies in addition to the initial advance are necessary to pay for the Formation Costs, the
City shall as necessary and from time to time make written demand upon Applicant and
Applicant shall immediately thereafter, within five (5) working days, deposit said monies
with the City to pay for the balance of the Formation Costs. If such additional monies are not
timely received, all Proceedings shall, at the option of the City, 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 available for review by the Applicant during
normal business hours upon reasonable notice to the City.
SECTION 3. Reimbursement. If the Proceedings to form the Community Facilities District are not
completed and are abandoned for any reason at anytime there will be no obligation on the part of the City or
the Community Facilities District to reimburse Applicant for any monies previously advanced pursuant to
this Agreement; provided, however, the City does agree to return to Applicant 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 Costs previously incurred by the City.
SECTION 4. Ownership of 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. Applicant 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 Applicant desire to abandon the Proceedings,
Applicant 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 Costs.
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. Authority to Execute Agreement. The City and the Applicant represent that the individuals
signing this Agreement have full right and authority to bind their respective parties to this Agreement.
J:\EngineerILANDDEVlCFD'sIVi/l(1ge 2- Maintenance CFD13WReimbursement Agreement_ORCdoc
2
5-32
SECTION 8 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 9. 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. Applicant may not
assign its rights or obligations hereunder except upon written notice to City within ten (1 0) 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 Applicant arising
under or from this Agreement, Applicant shall be released for all future duties or obligations arising under or
from this Agreement.
SECTION 10. Singular and Plural; Gender. Whenever 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 II. 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 12. Governing Law. This Agreement has been executed in and shall be governed by the laws of
the State of California.
SECTION 13. 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 14. Severability. In the event that anyone or more of the provisions of this Agreement that is or
are material to the entering into this Agreement by either Applicant or the City shall for any reason be held to
be unenforceable in any material respect by a court of competent jurisdiction, Applicant and the City may
mutually agree that such unenforceability shall not affect any other provision of this Agreement, and that this
Agreement shall be construed as if such unenforceable provision or provisions had never been contained
herein. If Applicant and the City fail to so mutually agree, this Agreement shall terminate, without penalty to
either party, after the giving by one party of thirty (30) days' prior written notice to the other party. In such
event, the City shall use all efforts to minimize any and all Formation Costs and shall return to Applicant 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 Costs previously incurred by the City.
SECTION 15. Notices. 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 demanded in that notice. Notices shall be deemed received seventy-two (72) hours after deposit in
the United States mail.
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5-33
CITY:
CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
APPLICANT:
OTAY RANCH COMPANY
610 West Ash Street, Suite # 1500
San Diego, CA 92101
SECTION 16. Time of the Essence. Time is of the essence in the performance of the parties respective
obligations herein contained.
SECTION 17. Waiver. 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 18. 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 19. Hold Harmless. Applicant shall defend, indemnifY, protect and hold harmless the City, its
elected officials and appointed officers, employees and consultants retained for purposes other than
formation of the Community Facilities District, from and against all claims for damages, liability, cost and
expense (including 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. Applicant's indemnification shall include any
and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, employees or
consultants retained for purposes other than formation of the Community Facilities District in defending
against such claims, whether the same proceed to judgment or not. Further, Applicant at its own expense
shall, upon written request by the City, defend any such suit or action brought against the City, its officers,
employees or consultants retained for purposes other than formation of the Community Facilities District.
Applicant's indemnification of City shall not be limited by any prior or subsequent declaration by the
consultant.
[Remainder of this page intentionally left blank.]
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5-34
Page One of Two Signature Pages to
Community Facilities District Reimbursement Agreement
Between the City of Chula Vista
and Otay Project, LLC,
IN WITNESS WHEREOF, City and Applicant have executed this Agreement thereby indicating that they
have read and understood same, and indicate their full and complete consent to its terms.
CITY OF CHULA VISTA
By:
Stephen Padilla
Mayor of the City Of Chula Vista
Attest:
Susan Bigelow
City Clerk
Approved as to Form:
Ann Moore
City Attorney
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5-35
Page One of Two Signature Pages to
Community Facilities District Reimbursement Agreement
Between the City of Chula Vista
and Otay Project, LLC,
OTAY PROJECT, LP,
a California Limited Partnership
By: OT A Y PROJECT, LLC,
A California Limited Liability Company
Its General Partner,
By: OTA Y RANCH DEVELOPMENT, LLC,
Its Authorized Member,
By:
Name:
Title:
(ATTACH NOTARY ACKNOWLEDGMENTS)
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5-36
RESOLUTION NO. 2006-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE INITIATION OF
PROCEEDINGS TO CONSIDER THE FORMATION OF
COMMUNITY FACILITIES DISTRICT NO. I3-M (OTAY
RANCH VILLAGE TWO) FOR OTAY PROJECT L.P. AND
APPROVING THE FORM OF THE REIMBURSEMENT
AGREEMENT.
WHEREAS, the City of Chula Vista has received an application from Otay Project, L.P.
(the "Applicants"), requesting that the 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 maintenance community facilities district preliminarily
designated as Community Facilities District No. 13-M (Otay Ranch Village Two) (the "District")
to fund the maintenance of certain public improvements serving Chula Vista and development
improvements serving the Otay Ranch Village Two project; and
WHEREAS, the Applicant has requested that the District encompass that territory within
Otay Ranch Village Two owned by and to be developed by the Applicant; and
WHEREAS, the form of a Community Facilities Reimbursement Agreement pursuant to
which the Applicant has agreed to advance funds to the City to pay for all costs incurred by the
City in undertaking the proceedings to consider the formation of the District to be secured by the
levy of special taxes with the District has been presented to this City Council for its
consideration.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CHULA VISTA as follows:
SECTION 1. The above recitals are all true and correct.
SECTION 2. This City Council 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 City of Chula Vista Statement of Goals and Policies regarding the establishment of
Community Facilities Districts.
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 and the approval of the
reimbursement agreement do not either collectively or separately obligate this City Council to
exercise its legislative discretion in a particular manner. This resolution does not 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.
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Page 2
SECTION 3. This resolution shall become effective upon its adoption.
Presented by
Approved as to form by
Leah Browder
Acting Director of Engineering
'-I~/a ~-
Ann Moore
City Attorney
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LEGEND
.-A%.,,-
n..~.7
R R..id.ntJaI
$ Sclloal
P PIIr_
CPII Communtty Pvrpaa F-.;ilily
os open 'P-
C CotnINn:!&I
PQ PublidQUllal-Public
-"'-
~/j
....'"
-"
--
~"
,HV.>
....
.....
-
\"
.- -
'L..!
.. - fl....
..............\.ocwod...........
"'A_..C
""r
...-
R-14 MF 5J.6 AC 1450\
R-15 SF 5..2AC 37 CLk
~.
~
..-~
-
Note: The boundary between the C/MU parcels and
the adjacent MF parcels may be adj1Jsted during the
Design Review Process up to a maximum of 21.6
acres of combined C and MU zoned land.
lMMIiIf~0w_._'
..
"'-'r
...-
,..,..
LAND USE SUMM.IIRY
ViTia.,. Two Commercial l....ndUs. ........ CU. Till1Iet
N.eig/1borhClod Land USIII A~rtag. CU, TargetO.ansity Den:sity
C., Com'l 11.9
$ingJ.aFamiJy
.-< SF 41.5 "0 " Subtotal Com(nrc:Jal 11.1
.-6 SF 12.6 .., "
.-7 SF .. " " Industrial
.-6 SF 1CO 51 ,., IND.1 !ndustrial 51.S
.-9 SF "3 '" 7.6 IN0-2 Industrial 6.7
"R.IS SF 7' " 6~ INO.3 lI1dustrial 297
R.H!A SF ", 66 '.6
R-If~B SF 10.4 " ,,, Sublotlllndustrlal U,g
R.19 SF 10.8 8J 7.7 ~ri'~~~~nS~ili~?~e!~~rp~td~~~~~e':I~~:~~~"a~;":n~n'!f ~A~ ~~ at
R-lO SF 19.3 " '.3 IheOlayJ..andnlr.
R-Z1 SF 22.2 " " P...
R-23 SF 13.1 " " F.' Town SqI,Jall!! Park 1.'
R-24 SF 76 " SA F.' F... 7.1
R-ZS SF 9.5 ae 7.' F-3 Pn ..,
Subtotal Family 1987 '" 5.0 F-< Park "4.2
Subtotiili Parks S!t6
MuJU-Filmily CPF
R.' MF 157 100 '.3 CPF.1 CFF U
R.l0 MF '.5 90 20.0 C?F-2 CFF 0.9
R-11 MF 9.' 14' 14.5 CPF-J CFF 1.7
R~12 MF '" '" '" CPF-4 CFF 1.5
R-1J MF "3 149 14.5
R_14 MF 7.6 137 18.D CPF-5 CFF D.'
R_16 MF 3S " 21.1 Suhto~1 CPF '.1
R-17 MF ,,, 119 ,,~ 00.."
R.26 MF .. " '.5 5-1 Sd'lcol 103
R-2l MF " 110 12.5 OpenSpaca OS 164.5
R.Z8 MF " is 14.4 Preserve OS 74.7
R-29 MF .., '" 1" ExlemalCirculaUon 26.2
R-30 MF ", 180 17,6 II"I!8malCin::ulatjQl"l 42.5
Sl.Ibtolill Multl.Famlly '2'!I.6 1,140 13.4 Sublolal Open Space 311.3
& Other
Mind USI
MU-, MU 11 " 9.1 81U 2,lIG
MU-2 MU " 12 '.5 'An addilionaIJ.OtCIS.OaaeCPFairewiJI be provided
MU-J MU '.3 38 ... wlll'lln !.he VIllage Core Purnuanl to a suoSe'quenl S?A
All'ltlndment
Subtotal Mixed U!le 6.' " EXHIBIT "A"
Site Utilization Plan - Village of Montecito
January 2006
5-39
Oray RAnch S~cti07ZaL Pl4nning A~a Plan
l,,'i&g~ of lvlonr<:clro ilnd Gray WInch Bwim55 Park
THE ATTACHED AGREEMENT HAS BEEN REVIEWED
AND APPROVED AS TO FORM BY THE CITY
ATTORNEY'S OFFICE AND WILL BE
FORMALLY SIGNED UPON APPROVAL BY
THE CITY COUNCIL
'-!L, a~~
Ann Moore
City Attorney
Dated: July 26, 2006
First Amendment to Agreement wi Best Best & Krieger LLP for Special
Counsel Legal Services for the Formation of Maintenance CFD wlin the
CCV per the Mello-Roos Community Facilities Act of 1982
5-40
FIRST AMENDMENT TO
the Agreement between the City of Chula Vista
and
Best Best & Krieger, LLP
For Special Counsel Legal Services for the Formation of Maintenance
Community Facility District within the City of Chula Vista Pursuant
To the MeIlo-Roos Community Facilities Act of 1982
Recitals
This First Amendment ("First Amendment") is entered into effective as of
2006 by and between the City of Chula Vista ("City") and Best Best and Krieger, LLP ("Best
Best & Krieger"), with reference to the following facts:
WHEREAS, the City Council on March 22,2005 approved an agreement with Best Best
& Krieger for Special Counsel Legal Services for the Formation of Maintenance Community
Facility District for Otay Ranch Village Seven by Resolution No. 2005-083 ("Original
Agreement"); and
WHEREAS, Best Best & Krieger has assisted the City as the Legal Counsel for the
Formation of many Community Facilities Districts ("CFDs") in easter:! Chula Vista; and
WHEREAS, Best Best & Krieger possesses extensive knowledge and experience in
providing legal assistance in the CFD formations and has a unique understanding of the
development issues in the City of Chula Vista; and
WHEREAS, the parties negotiated a new Scope of Work; and
WHEREAS, the parties now desire to amend the Original Agreement to expand the scope
of work required by Best Best & Krieger to provide Special Legal Counsel Services for the
Formation of a Maintenance Community Facility District for Otay Ranch Village Two project
"Project" and the annexation of the Project to Improvement Area "A" of the existing Otay Ranch
Preserve Maintenance District (CFD97-2);
NOW, THEREFORE, in consideration of the recitals and the mutual obligations of the
parties set forth in this First Amendment, City and Best Best & Krieger agree as follows:
1. Exhibit A, Section 6, Place of Business, Telephone and Fax Number of Consultant, is
deleted in its entirety and replaced with the following:
655 West Broadway
Fifteenth Floor
San Diego, CA 92101
Phone: (619) 525-1300
Fax: (619) 233-6118
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2. Exhibit A, Section 7, General Duties is amended to add the following:
Consultant shall also provide special legal counsel services to the City pertaining to the
Formation of a Maintenance Community Facility District for Otay Ranch Village Two
and the annexation of the Village Two to Improvement Area "A" of the existing Otay
Ranch Preserve Maintenance District (CFD97-2)
3. Exhibit A, Section 11.C.2, Limitation Without Further Authorization on Time and
Material Arrangement, the first paragraph is deleted in its entirety and replaced with the
following:
At such time as Consultant shall have incurred time and materials equal to $10,000 as
to the Village Seven Community Facilities District and $20,000 as to Village Two
Community Facilities District (The "Authorization Limit"), Consultant shall not be
entitled to any additional compensation without further authorization issued in writing
and approved by the City. Nothing herein shall preclude Consultant from providing
additional services at Consultant's own cost and expense.
3. All other provisions of the Original Agreement shall remain in full force and effect.
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SIGNATURE PAGE
TO FIRST AMENDMENT TO
THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA
AND BEST BEST & KRIEGER, LLP
IN WITNESS WHEREOF, City and Consultant have executed this First Amendment to
the Agreement thereby indicating that they have read and understood same, and indicate their
full and complete consent to its terms:
Dated:
,2006
City of Chula Vista
Attest:
By:
Stephen C. Padilla, Mayor
Susan Bigelow, City Clerk
Approved as to form:
Ann Moore, City Attorney
Best Best & Krieger, LLP
By:
Warren Diven, Partner
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