HomeMy WebLinkAbout2007/03/13 Item 1
CITY COUNCIL
AGENDA STATEMENT
~\~ em OF
'~CHUlA VISTA
ITEM TITLE:
SUBMITTED BY:
REVIEWED BY:
Item No.: I
Meeting Date: 3/13/2007
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING THE FORMAL CONSULTANT
SELECTION PROCESS, APPROVING AN AGREEMENT
BETWEEN THE CITY OF CHULA VISTA, MARION B. BORG
ENVIRONMENTAL CONSULTING AND MCMILLIN OTAY
RANCH, LLC, FOR MANAGING AND PROCESSING OF THE
ENVIRONMENTAL IMPACT REPORT (EIR) FOR THE
EASTERN URBAN CENTER (EUC) SECTIONAL PLANNING
AREA (SPA) PLAN, AND AUTHORIZING THE MAYOR TO
SIGN THE AGREEMENT
DIRECTOR OF PL~G AND BUlLDlNP f
CITY MANAGER J'
415THS VOTE: YES
NO X
BACKGROUND: Through December, 2006, Marion B. Borg provided professional services for
managing and processing multiple Sectional Planning Area (SPA) Plans under a two-party contract
as extension of staff. The attached three-party agreement supercedes the prior two-party agreement
with the City, so that the consulting services will be dedicated to the Eastem Urban Center (EUC)
SPA Plan Environmental hnpact Report (EIR) through the entitlement process.
ENVIRONMENTAL REVIEW: The Environmental Review Coordinator has reviewed the
proposed activity for compliance with the California Environmental Quality Act (CEQA) and
has determined that the activity is not a "Project" as defmed under Section 15378 of the State
CEQA Guidelines; therefore, pursuant to Section 1 5060(c)(3) ofthe State CEQA Guidelines the
activity is not subject to CEQA. Thus, no environmental review is necessary.
RECOMMENDATION: That the City Council adopt the Resolution waiving the formal
consultant selection process, approving the three-party agreement with Marion B. Borg
Environmental Consulting for consulting services related to the management and processing of
the EUC SPA Plan EIR and authorize the Mayor to sign the agreement.
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Item No.: I
Meeting Date:3/13/2007
Page 2 of2
BOARDS/COMMISSION RECOMMENDATION: N/A
DISCUSSION:
For the past seven years, Marion B. Borg has provided professional services to the Planning and
Building Department as an Environmental Project Manager through a two-party contract as an
extension of staff. Due to budget cuts, the majority of this multi-project workload has been
shifted to existing City staff. Due to project complexity, continuity of effort, and availability of
remaining environmental project managers on staff, staff recommends retaining the consultant to
process specifically the Eastern Urban Center SPA Plan EIR. Although City staff administer the
contract and manage the consultant, the applicant McMillin Otay Ranch, LLC, endorses Marion
B Borg as the Environmental Project Manager for this project.
Based on her Chula Vista experience and knowledge of the California Environmental Quality
Act (CEQA), Marni is uniquely qualified for this sole-source contract. She has the unique skills
for managing the preparation of complex multi-discipline environmental reports. Most recently,
she has managed the preparation of EIRs for both Village Two and Village Seven SPA Plans in
the Otay Ranch as well as the EIR for Eastlak:e Seniors project. In addition, she has the
confidence of the development community for her management skills and knowledge of the
CEQA to expeditiously process EIRs. For these reasons, City staff recommends Council waive
the formal consultant selection process as impractical, as described in Section 2.56.070 of the
Municipal Code.
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, which is subject to this action.
FISCAL IMPACT:
There will be no net impact to the General Fund from this change in contract status. The contract
cost will be paid directly out of McMillin Companies existing deposit account.
ATTACHMENTS
Attachment 1: Three-Party Agreement
Prepared by: Richard M Rosaler, Alep, Principal Planner, Planning and Building Department
H:\Planning\BobMc\EUC Borg Contract Staff Report 3-6-07.doc
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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
i-?h_x-, (J~~
Ann Moore
City Attorney
Dated: ~ I .~ ("0 7
f
Three Party Agreement
Between
City of Chula Vista,
Marion B. Borg Environmental Consulting, Consultant, and
McMillin Otay Ranch, LLC, Applicant
F or Consulting Work to be Rendered
With regard to Applicant's Eastern Urban Center Project
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Three Party Agreement
Between
City of Chula Vista,
Marion B. Borg Environmental Consulting, Consultant, and
McMillin Otay Ranch, LLC, Applicant
For Consulting Work to be Rendered
with regard to Applicant's Eastern Urban Center Project
1. Parties
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 of the
State of California, the person designated on the attached
Exhibit A as "Consultant" Marion B. Borg Environmental Consulting
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:
2. Recitals, Warranties and Representations.
2.1. Warranty of Ownership.
Applicant warrants that Applicant is the owner of land
(" Property") commonly known as, or generally located as,
described on Exhibit A, Paragraph 1, 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 on Exhibit A, Paragraph 3. It is also anticipated
Applicant will make application with the City for approval of the
plan, map, zone, or other permits ("Entitlements") described on
Exhibit A, Paragraph 4.
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2.3.
Applicant,
Exhibit A,
In order for the City to process the Application of
Work of the general nature and type described in
Paragraph 5, ("Work") will need to be completed.
2.4.
City does not presently have the
to process the application within
for review by the Applicant.
"in-house" staff or
the time frame
resources
requested
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.
background
Additional facts and circumstances regarding the
for this agreement are set forth on Exhibit B;
3 . Agreement.
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 on 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 of the services described in Exhibit A,
Paragraph 5, entitled "Detailed Scope of Work", ("Detailed
Services"), and all services reasonable 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 of time for the diligent execution of
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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.
Applicant 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 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 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. If the 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 between
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 on Exhibit C as "Deposit
Amount" with the City, as trustee for Consultant, the conditions
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of such trust being as indicated on Exhibit C and as hereinbelow
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 30 days after the termination of this
Agreement and any claims resulting therefrom.
3.3.1.1.4.
within 30 days after of the use
Nothing herein shall invalidate
herein authorized.
Applicant shall be notified
of the Deposit in any manner.
use of the Deposit in the manner
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 ig
such amount as City shall reasonably specify, and upon doing so,
Applicant shall, within 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.
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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
subconsultants employed by it in connection with the Services
required to be rendered, are protected against the risk of loss
by the following insurance coverages, in the following
categories, and to the limits specified, policies of which are
issued by Insurance Companies that have a Best's Rating of "A,
Class V" or better, or shall meet with the approval of the City:
4.1.1. Statutory Worker's Compensation Insurance and
Employer's Liability 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 of the 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.
4.2.
Proof of Insurance Coverage.
4.2.1.
demonstrate proof
Certificates of Insurance. Consultant shall
of coverage herein required, prior to the
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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 and Applicant demonstrating same.
4.2.3 Security for Performance - Performance Bond. In
the event that the need for a Consultant to provide a Performance
Bond arises, then Consultant shall provide to the City a
performance bond in the form prescribed by the City and by such
sureties which are authorized to transact such business in the
State of California, listed as approved by the United States
Department of Treasury Circular 570,
http://www.fms.treas.gov/c570, and whose underwriting limitation
is sufficient to issue bonds in the amount required by the
agreement, and which also satisfy the requirements stated in
Section 995.660 of the Code of Civil Procedure, except as
provided otherwise by laws or regulations. All bonds signed by
an agent must be accompanied by a certified copy of such agent's
authority to act. Surety companies must be duly licensed or
authorized in the jurisdiction in which the Project is located to
issue bonds for the limits so required. Form must be satisfactory
to the Risk Manager or City Attorney which amount shall be
indicated in an attachment as "Performance Bond" Exhibit.
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 of the
study or after its completion, except on written concurrence of
the City and Applicant.
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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.
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 Consultant, 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 7.
5.2. Property Access.
The Applicant hereby grants permission to the City and
Consultant to enter and access 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.
6. Administrative Representatives.
Each party designates the individuals ("Administrators")
indicated in Exhibit A, Paragraph 8, as said party's contract
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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 on Exhibit A, Paragraph 9, 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.
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 an FPPC
Filer, Consultant further warrants and represents that Consultant
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will not
the term
interest
acquire, obtain, or assume an economic interest during
of this Agreement which would constitute a conflict of
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 10 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 12 months thereafter.
Consultant agrees that Consultant Associates shall not
acquire any such Prohibited Interest within the Term of this
Agreement, or for 12 months after the expiration of this
Agreement.
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
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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
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City shall provide a copy, at Applicant's cost, of all such
documents to the Applicant.
9.5.
and shall
work.
Applicant shall have no right to terminate Consultant,
not exercise any control or direction over Consultant's
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 of Chula 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.
11. 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 of the 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.
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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.
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 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 for the parties in Exhibit
A.
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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 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.
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.
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 of this Agreement
shall be effective unless the same shall be in writing and signed
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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.
13.12. Remedies.
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The rights of the 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.
14. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and
exclusive property of City. No such materials or properties
produced in whole or in part under this Agreement shall be
subject to private use, copyrights or patent rights by Consultant
in the United States or in any other country without the express
written consent of City. City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions
of the Public Records Act), distribute, and otherwise use,
copyright or patent, in whole or in part, any such reports,
studies, data, statistics, forms or other materials or properties
produced under this Agreement.
(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.
Dated:
City of Chula Vista
by:
Cheryl Cox, Mayor
Attest:
Susan Bigelow
City Clerk
Approved as to Form:
Consultant:
Marion B. Borg Environmental
Consulting
Ann Moore
City Attorney
Dated:
by:
Dated:
Applicant:
McMillin Otay Ranch, LLC
A Delaware limited liability company
By: McMillin Companies, LLC,
A Delaware limited liability company
Its: Manager
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By:
Its:
By:
Its:
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Exhibit B
Additional Recitals
WHEREAS, the Applicant has deposited an initial sum for the
processing of development applications, such as rezone,
environmental studies and precise plans, and
WHEREAS, Consultant warrants time on this project will be
billed at no more than the hourly rate the City bills for an
equivalent City Staff, and
WHEREAS, both City and Applicant agree to waive the formal
consultant selection process due to prior work on the same
project performed by Consultant while under a 2-party contract
with the City, thereby making it impractical to solicit formal
bids, and
WHEREAS, the Planning and Building Director has negotiated the
details of this agreement in accordance with procedures set forth
in the Chula Vista Municipal Code.
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Exhibit A
Reference Date of Agreement: March 13, 2007
Effective Date of Agreement: January 1, 2007
City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910
Consultant: Marion B. Borg Environmental Consulting,
Business Form of Consultant:
X) Sole Proprietorship
) Partnership
) Corporation
Address: 13904 San Sebastian Way, poway CA 92064
Applicant: McMillin Otay Ranch, LLC,
Business Form of Applicant:
( ) Sole Proprietorship
( ) Partnership
( X) Corporation
Address: 2750 Womble Road
San Diego, CA 92106
1. Property (Commonly known address or General Description)
The application covers that property generally known as
Eastern Urban Center, which is located in the central
portion of the Otay Valley Parcel of the Otay Ranch General
Development Plan area. The proposed Eastern Urban Center is
approximately 230 acres and is bounded by the proposed
alignments of Birch Road on the north, Hunte Parkway on the
south, Eastlake Parkway on the east, and SR-125 on the west.
Applicant is only applying for entitlements of their portion
of the ownership of subject property.
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2. Project Description ("Project"):
The project consists of a Second Tier Environmental Impact
Report (EIR) for the EUC SPA Plan. The EUC SPA Plan would
refine the plans, goals, objectives, and policies of the
Otay Ranch GDP and the City of Chula Vista General Plan.
The SPA Plan would be consistent with the GDP and General
Plan with a maximum development potential of 2,983
residential units and 3,497,000 square feet of non-
residential development, including office, commercial and
civic uses.
3. Entitlements applied for:
General Plan Amendment, General Development Plan, Sectional
Planning Area (SPA) Plan, and Planned Community District
Zoning Regulations), Preliminary Grading Plan, Tentative
Subdivision Map, and Design Review.
4. General Nature of Consulting Services ("Services--General"):
Consultant shall manage the preparation and processing of the
Environmental Impact Report (EIR) for the EUC project being
prepared by others in accordance with the City of Chula Vista
Environmental Review Procedures; with the criteria, standards
and procedures of the California Environmental Quality Act
(CEQA) of 1970, as amended, (Public Resources Code Sections
21000 et seq.) and the CEQA Guidelines (Public Resources Code
Section 15000 et seq.); and with other applicable regulations,
requirements and procedures of any other responsible public
agency or any agency with jurisdiction by law. All work
performed by Consultant shall be to the satisfaction of City's
Planning & Building Director.
5. Detailed Scope of Work ("Detailed Services"):
Consultant shall manage all phases of preparation and processing of
the EIR for the EUC proj ect through the City. The primary
responsibility of Consultant is to manage the EIR consultant that
will prepare the EIR. The detailed services to be provided are
described below:
A. EIR Consultant Management
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1. Coordinate with EIR consultant regularly regarding
EIR scope, preparation and progress;
2. Moni tor EIR consultant contract performance,
including deliverables, costs and schedule;
3. Review and edit all notices;
4. Review and edit all technical studies prepared by
EIR consultant;
S. Attend site visits with EIR consultant as
necessary; and
6. Review and edit all screencheck draft EIRs, draft
responses to comments, draft Findings and Statement
of Overriding Considerations (if required), and
draft Final EIR.
B. Other Project Processing Services
1. Coordinate with City staff assigned to the project;
2. Review and comment on the EUC SPA as it relates to
the EIR;
3. Distribute all public notices;
4. Review all technical studies prepared by applicant;
S. Compile staff comments on screencheck Draft EIRs
and technical studies;
6. Distribute Draft EIR for public review, including
public distribution, RCC and Planning Commission;
7. Distribute Final EIR, including public agencies
that commented on the EIR, Planning Commission and
City Council;
8. Schedule staff meetings to discuss EIR issues;
9. Attend and prepare for team meetings and focus
group meetings;
10. Attend and prepare for the RCC meeting;
11. Attend and prepare for public hearings including
Planning Commission to close public review,
Planning Commission on the draft EIR and City
Council on the Final EIR; and.
12. Maintain project file for the duration of the
proj ect, and close proj ect file after the 30-day
Notice of Determination statute of limitations
period has ended.
6. Schedule, Milestone, Time-Limitations within which to Perform
Services.
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Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
Dates or Time Limits for Delivery of Deliverables:
Under direction of the Principal Planner, and will
function as an extension of City staff.
Dates for completion of all Consultant services:
June 30, 2008, or adoption of the EUC SPA Plan by City
Council.
7. Documents to be provided by Applicant to Consultant:
SPA Plan, tentative map, technical studies submitted to City-
related to project.
8. Contract Administrators.
City: Richard M. Rosaler, AICP, Principal Planner, City of
Chula Vista Planning and Building Department, 276 Fourth Av,
Chula Vista, CA 91910, ph: (619)476-5394, FAX: (619)409-5859,
email: rrosaler@ci.chula-vista.ca.us.
Applicant: Todd Galarneau, Vice-President, McMillin Otay
Ranch, LLC, PO Box 85104, San Diego, CA 92186-5104, ph: (619)794-
1303, FAX: (619)336-3057 email: tgalarneau@mcmillin.com
Consultant: Marion B. Borg, Consultant, Marion B. Borg
Environmental Consulting, 13904 San Sebastian Way, Poway, CA
92064, ph: (858)679-8546, FAX (858)679-8618, email:
mbbenv@cox.net.
9. Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
(X ) Not Applicable.
Not an FPPC Filer.
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Category No.1.
Category No.2.
Category No.3.
) Category No.4.
) Category No.5.
) Category No.6.
) Category No.7.
10. Insurance Requirements:
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 of
Chula Vista (Redevelopment Agency)
to provide services, supplies,
materials, machinery or equipment.
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.
Business positions.
(X Commercial General Liability: $1,000,000.
(X Automobile Liability: $1,000,000.
( Worker's Compensation: Statutory
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Employer's Liability: $1,000,000.
Errors and Omissions Liability: $2,000,000.
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Page 7
Exhibit C
Compensation Schedule and Deposit: Terms and Conditions.
Single Fixed Fee Arrangement.
For performance of all of the General and Detailed Services
of Consultant as herein required, Applicant shall pay a single
fixed fee in the amounts and at the times or milestones set forth
below:
Single Fixed Fee Amount: $
Milestone or Event Amount or Percent
of Fixed Fee
Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the General
and Detailed Services of Consultant as are separately identified
in Exhibit C, under the category labeled "Phased Fixed Fee
Arrangement", Applicant shall pay the fixed fee associated with
each phase of Services, in the amounts and at the times or
milestones set forth hereinbelow ("Phase Fixed Fee Arrangement")
Consultant shall not commence Services under any Phase, and
shall not be entitled to the compensation for a Phase, unless
Applicant shall have issued a notice to proceed to Consultant as
to said Phase.
Phase
Fee for
Said Phase
(x ) Time and Materials
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For performance of the General and Detailed Services of
Consultant as herein required, Applicant shall pay Consultant for
the productive hours of time and material spent by Consultant in
the performance of said Services, at the rates or amounts set
forth hereinbelow according to the following terms and
conditions:
(X ) 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 $76,000 including all Materials, and other
nreimburseablesn (nMaximum Compensationn) .
) Limitation without Further Authorization on Time and
Materials Arrangement
At such time as Consultant shall have incurred time and
materials equal to (nAuthorization
Limitn), Consultant shall not be entitled to any additional
compensation without further authorization issued in writing
and approved by the City Council. Nothing herein shall
preclude Consultant from providing additional Services at
Consultant's own cost and expense.
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Rate Schedule
Category of Employee
of Consultant
Name
Consultant
Marion B. Borg
Hourly
Rate
$95.00
Materials Separately Paid For by Applicant
( X ) Materials
Reports
Copies
X ) Travel
X ) Printing
X ) Postage
X ) Delivery
X ) Long Distance Telephone Charges
X ) Other Actual Identifiable Direct Costs
Mileage charged at $0.40 per mile
-----------------------------------
Deposit
) Deposit Amount: $
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Cost or Rate
Actual
Actual
Actual
Actual
Actual
Actual
Actual
Page 10
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.
( ) Use of Deposit as Security Only; Applicant to Make Billing
Payments.
Upon determination by City made in good faith that
Consultant is entitled to compensation which shall remain unpaid
by Applicant 30 days after billing, City may, at its option, use
the Deposit to pay said billing.
(X 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:
X First of the Month
15th Day of each Month
End of the Month
Other:
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C. City's Account Number: MCMILN
H:\Planning\BobMC\3ptyBorg-EUC 03-06-07.doc
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RESOLUTION NO. 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING THE FORMAL CONSULTANT
SELECTION PROCESS, APPROVING AN AGREEMENT
BETWEEN THE CITY OF CHULA VISTA, MARION B.
BORG ENVIRONMENTAL CONSULTING AND
MCMILLIN OT A Y RANCH, LLC, FOR MANAGING AND
PROCESSING OF THE ENVIRONMENTAL IMP ACT
REPORT (EIR) FOR THE EASTERN URBAN CENTER
(EUC) SECTIONAL PLANNING AREA (SPA) PLAN, AND
AUTHORIZING THE MAYOR TO SIGN THE
AGREEMENT
WHEREAS, in 2001, the Planning and Building Department retained the services of
Marion B. Borg Environmental Consulting with a two-party agreement such that the
consultant would function as an extension of staff; and
WHEREAS, there have been five subsequent amendments to Consultant's contract to
retain her services in subsequent fiscal years, for workload continuity, satisfactory
professional performance and the continued need for extension of City staff resources in
environmental planning; and
WHEREAS, the City paid for Consultant's services through the expenditure budget
of the Planning and Building Department; and
WHEREAS, the City funded said services through revenue reimbursements from
developer deposits though the revenue budget of the Planning and Building Department; and
WHEREAS, recent budget contingency reductions eliminated the remaining budget
for said services to be paid though the expenditure budget of the Planning and Building
Department; and
WHEREAS, Consultant's services are still required for continued processing of
entitlement agreements for the McMillin Otay Ranch, LLC's EUC SPA Plan project; and,
WHEREAS, Consultant's prior experience with the City, intimate knowledge of the
EVe SPA Plan, and extensive work performed on the project make her uniquely qualified to
continue as the Environmental Project Manager for the EUC EIR; and
WHEREAS, City staff recommends waiving the formal consultant selection process
as impractical, as described in Section 2.56.070 of the Municipal Code of the City of Chula
Vista.
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Resolution No. 2007-
Page 2
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City ofChula
Vista waives the formal consultant selection process.
BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista
approves the agreement with Marion B. Borg Environmental Consulting and McMillin Otay
Ranch, LLC and authorizes the Mayor to execute the agreement.
Submitted by
Approved as to form by
.~~ tL <~~
Ann Moore
City Attorney
James D. Sandoval, AICP
Planning and Building Director
H I'LANNIN(j'I3"hM~ BOlg R~s" 1I.\_lIf,_07 O<l(
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