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Home My WebLink About2007/04/03 Agenda Packet ~v? :..~~ ~~~~ ellY OF CHUIA VISfA 11 Cheryl Cox, Mayor Rudy Ramirez, Council member Jim Thomson, Interim City Manager John McCann, Council member Ann Moore, City Attorney Jerry R. Rindone, Council member Susan Bigelow, City Clerk Steve Castaneda, Councilmember April 3, 2007 4:00P.M. CALL TO ORDER Council Chambers City Hall 276 Fourth Avenue ROLL CALL: Councilmembers Castaneda, McCann, Ramirez, Rindone, and Mayor Cox PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY . INTRODUCTION BY CAPTAIN DON HUNTER OF EMPLOYEE OF THE MONTH, JOHNNY JACKSON, COMMUNITY SERVICE OFFICER . OATHS OF OFFICE Daniel and Shirley Linder, Board of Library Trustees Georgie Stillman, Board of Library Trustees CONSENT CALENDAR (Items 1 through 6) The Council will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed immediately following the Consent Calendar. 1. WRITTEN COMMUNICATIONS A. Letter of resignation from Jason Harmon, member of the International Friendship Commission B. Letter of resignation from Joe Little, member of the Growth Management Oversight Commission Staff recommendation: Council accept the resignations and direct the City Clerk to post the vacancies in accordance with Maddy Act requirements. 2. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE CITY COUNCIL POLICY REGARDING CONSIDERATION OF ATTORNEY REQUESTS FOR WANERS OF POTENTIAL CONFLICT OF INTEREST The City of Chula Vista periodically receives conflict of interest waiver requests from attorneys who were formerly employed by the City or who have served as outside counsel to the City. The requests arise out of the California Rules of Professional Conduct, governing attorneys who practice law in California, which require the attorney to obtain a written consent of a current or former client before beginning or continuing the representation of another client. Adoption of the resolution establishes procedures by which the City Attorney would review each request, includes an appeal period of the City Attorney's decision to the City Council, and allows for the Mayor or any Councilmember to request to hear the matter directly. (City Attorney) Staff recommendation: Council adopt the resolution. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE APPROPRIATION OF $70,000 FROM THE AVAILABLE BALANCE OF THE TRUNK SEWER CAPITAL RESERVE FUNDS TO PROJECT NO. SW249 FOR THE PREPARATION OF A JOINT FEASIBILITY STUDY FOR THE CONSTRUCTION OF A WASTEWATER RECLAMATION PLANT (4/5THS VOTE REQUIRED) The City prepared a Wastewater Master Plan Update concurrent with the General Plan Update, which estimated that the City would require additional treatment capacity for five to six million gallons per day at build-out. Several options are being pursued to meet this need. The City has partnered with Sweetwater Authority and Otay Water District for a joint feasibility study of a Wastewater Reclamation Plant to serve the needs of the three agencies, the study cost to be shared by the three agencies. Adoption of the resolution appropriates up to $70,000 for the City's share of the costs for the preparation of the study. (Acting Assistant City Manager/City Engineer) Staff recommendation: Council adopt the resolution. 4. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING CAPITAL IMPROVEMENT PROJECT ENTITLED "CMP STORM DRAIN PIPE REHABILITATION PROGRAM PROJECT, PHASE IV" (DR-169), AND TRANSFERRING EXISTING FUNDS FROM CIP "WESTERN CHULA VISTA INFRASTRUCTURE" (GG-188) PROJECT TO (DR-169) FOR SAID PURPOSE (4/5THS VOTE REQUIRED) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING CONTRACT FOR THE "CMP STORM DRAIN PIPE REHABILITATION PROGRAM (DR-169) PROJECT, PHASE IV, AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS OPERATIONS TO EXPEND ALL AVAILABLE FUNDS IN THE PROJECT Page 2 - Council Agenda htto://www.chulavistaca.!!ov April 3, 2007 As part of an ongoing program to rehabilitate corrugated metal drainage pipe (CMP) throughout the City, staff has surveyed and identified a number of storm drain facilities which are deteriorated and in need of rehabilitation. Adoption of the resolutions will establish a project and transfer funds, which will allow for the removal and replacement of drainage facilities at six locations. (General Services Director) Staff recommendation: Council adopt the resolutions. 5. RESOLUTION OF THE CITY COUNCIL ACCEPTING $65,000 FROM THE OFFICE OF TRAFFIC SAFETY, AMENDING THE FISCAL YEAR 2006/2007 POLICE DEPARTMENT BUDGET FOR THE CLICK IT OR TICKET PROGRAM, AND APPROPRIATING FUNDS THEREFOR (4/5THS VOTE REQUIRED) The Office of Traffic Safety has awarded $65,000 to the Police Department for the Click It or Ticket Program, in support of the national program. Adoption of the resolution will allow for the funds provided by this grant to be utilized to increase the level of seat belt enforcement hours on an overtime basis for first line supervisors, officers, and administrative time to meet grant reporting requirements. (police Chief) Staff recommendation: Council adopt the resolution. 6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA TRANSFERRING UNCLAIMED MONIES IN THE AMOUNT OF $87,266 FROM THE CASH BOND DEPOSIT FUND TO THE GENERAL FUND The City currently has unclaimed monies in the Cash Bond Deposit Fund. This money was deposited by the Police Department in accordance with Government Code Section 50050. In accordance with the Government Code provisions, money that remains unclaimed for three years may become the property of the City after certain advertising requirements are met. (police Chief) Staff recommendation: Council adopt the resolution. ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC COMMENTS Persons speaking during Public Comments may address the Council/Authority on any subject matter within the Council! Authority's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council//Authority from taking action on any issue not included on the agenda, but, if appropriate, the Council/Agency/Authority may schedule the topic for fUture discussion or refer the matter to staff. Comments are limited to three minutes. Page 3 - Council Agenda htto:/ /www.chulavistaca.2ov April 3, 2007 ACTION ITEMS The Item listed in this section of the agenda will be considered individually by the Council/Authority, and is expected to elicit discussion and deliberation. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 7. CONSIDERATION OF CONSENTING TO THE TRANSFER OF THE TERESINA APARTMENT PROJECT FROM EAGLE LOMAS VERDES, L.P. TO EQUITY RESIDENTIAL The existing owner is looking to sell the project and transfer all obligations under the bonds to Equity Residential. Adoption of the resolution approves the transfer of the project and authorizes the City Manager to execute all related documents necessary. (Acting Community Development Director) Staff recommendation: Council adopt the following resolution. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CONSENTING TO THE TRANSFER OF THE TERESINA APARTMENTS PROJECT FROM EAGLE LOMAS VERDES, L.P. TO EQUITY RESIDENTIAL, AND AUTHORIZING THE CITY MANAGER TO EXECUTE ALL RELATED DOCUMENTS NECESSARY IN THE TRANSFER 8. CONSIDERATION OF REJECTING THE FIRST AND SECOND BIDS AND ACCEPTING BID AND AWARDING CONTRACT FOR THE "OTAY PARK IMPROVEMENT PROJECT" On March 16,2007, the Director of General Services received sealed bids for the "Otay Park Improvement (PR-284)" project. The work consists of constructing a practice softball field with multipurpose field overlay, improving site drainage including a portion located in an easement over school property, providing picnic areas, a performance area, new walks, lighting, planting and irrigation. (General Services Director) Staff recommendation: Council adopt the following resolutions. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA REJECTING THE FIRST AND SECOND LOW BIDS AND ACCEPTING AND AWARDING THE CONTRACT FOR THE "OTAY PARK IMPROVEMENTS PROJECT" (PR-284) TO THE THIRD LOWEST BIDDER, LANDMARK SITE CONTRACTORS, AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS OPERATIONS TO EXPEND ALL AVAILABLE CONTINGENCIES IN THE PROJECT (4/5THS VOTE REQUIRED) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AN INTER-PROJECT TRANSFER FROM THE "WESTERN CHULA VISTA FINANCING PROJECT" (GG-188) TO THE "OTAY PARK IMPROVEMENTS PROJECT" (PR-284) AS NECESSARY TO COMPLETE THE PROJECT Page 4 - Council Agenda httn:! /www.chulavlstaca.Q:ov April 3, 2007 OTHER BUSINESS 9. CITY MANAGER'S REPORTS 10. MAYOR'S REPORTS A. Ratification of the appointment of Terry Jensen to the Veterans Advisory Commission. 11. COUNCIL COMMENTS CLOSED SESSION Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council Meeting at the City Attorney's office in accordance with the Ralph M Brown Act (Government Code 54957.7). 12. PUBLIC EMPLOYEE APPOINTMENT PURSUANT TO GOVERNMENT CODE SECTION 54957(b)(1) Title: City Manager 13. CONFERENCE WITH LABOR NEGOTIATORS PURSUANT TO GOVERNMENT CODE 54957.6(a) Unrepresented employee: City Manager 14. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) A. Concerned Citizens v. City ofChula Vista, Case No. GIC 862773; B. JC Towing v. City ofChula Vista, Case No. GIC 869143 C. Mory v. Chula Vista Police Department. et aI., Case No. 06 CV 1460 JAH(BLM); and D. Mory v. City ofChula Vista. et aI., Case No. 07 CV 0462 15. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b) A. One Case ADJOURNMENT to an Adjourned Regular Meeting, Thursday, April 5, 2007 at 6:00 p.m. in the John Lippitt Public Works Center, 1800 Maxwell Road. In compliance with the AMERICANS WITH DISABILITIES ACT The City of Chula Vista requests individuals who require special accommodations to access, attend, and/or participate in a City meeting, activity, or service request such accommodation at least forty-eight hours in advance for meetings and jive days for scheduled services and activities. Please contact the City Clerk for specific iriformation at (619) 691-5041 or Telecommunications Devices for the Deaf (TDD) at (619) 585-5655. California Relay Service is also available for the hearing impaired. Page 5 - Council Agenda htlD:/ /www.chulavistaca.gov April 3,2007 ----- Original Message ----- To: 'Ava C. Ibarra' Sent: Wednesday, March 21, 2007 10:23 PM Aya. It saddens me to have to inform you that effective immediately, I must resign as a member of the International Friendship Commission. It has been a pleasure serving on the IFC with you and the other commission members, and I hope to have the opportunity to volunteer my time once again in the future. Best regards, Jason Harmon 1A RECEIVED ~ 'D7 I1AR 28 A9 :53 March 23, 2007 liTTlE PRODUCTIONS CITY QF CHULA V!~i CJTr CLERK'S omc: Susan Bigelow City Clerk City ofChula Vista 276 Fourth Avenue Chula Vista, CA 91910 Joe Little Vice Chairman Growth Management Oversight Commission 1367 Caminito Capistrano #3 Chula Vista, CA 91913 Dear Ms. Bigelow: The following is the body of a letter I sent to Mayor Cheryl Cox: It is with great regret that I inform you of my resignation from our city's Growth Management Oversight Commission. I have just accepted ajob as the South Bay Correspondent forKGTV, 10 News in San Diego. My future employers and I agree, my serving on the GMOC and covering the City for a local station creates a conflict of interest. My time on the GMOC was an experience I will never forget. For the first time in my life, I feel like I had an impact on my community beyond the average citizen. However, as a very proud resident of Chula Vista, I hope you fmd my departure a welcome one for a couple of reasons: It gives another citizen a chance to participate in local government, and there will now be a journalist who can still serve his adopted city by covering issues that are important to Chula Vista and its residents. For these reasons, I hope you accept my resignation without regret. And I hope to talk with you many, many times in the near future on, and off air. S. Icerelv /7 m---:7 ' /;/, s:~~ ~' Joe Little Home (619) 656-3102 Cell (619) 208-1194 Personal- LittleJoeTV@yahoo.com 1.'B COUNCIL AGENDA STATEMENT Item 2- Meeting Date 4/03/07 ITEM TITLE: Resolution of the City Council of the City of Chula Vista adopting the City Council Policy regarding consideration of attorney requests for Waivers of Potential Conflicts of Interest SUBMITTED BY: City Attorney City Attorneyo.. jI\. (4/5ths Vote: _ No _X~ REVIEWED BY: RECOMMENDATION: That Council adopt the resolution approving City Council Policy regarding consideration of Attorney requests for Waivers of Potential Conflicts of Interest. BOARDS/COMMISSION: Not applicable. DISCUSSION: The City of Chula Vista ("City") periodically receives conflict of interest waiver requests from attorneys who were formerly employed by the City or who have served as outside counsel to the City. The requests arise out of the California Rules of Professional Conduct, governing attorneys who practice law in California. Among other things, those rules require that, in certain circumstances, an attorney must obtain the informed written consent of a current or former client before beginning or continuing the representation of another client. This requirement typically arises when the interests of the two clients are, or may be, adverse to each other, or when the attorney has obtained confidential information about the fust client that may be used to the detriment of that client in connection with the representation of another client. Currently, each time the City receives an attorney's request to waive a conflict of interest, the request must go to the City Council for consideration. The proposed policy would establish procedures by which the City Attorney would review each request, determine whether a conflict exists and, if so, whether the City should waive the conflict. The policy would authorize the City Attorney to consider each request pursuant to the California Rules of Professional Conduct, which preempt any conflicting local codes. The policy will allow a ten-day appeal period, during which the attorney requesting the waiver can appeal the City Attorney's decision to the City Council, or the Mayor or any member of the City Council can request to hear the matter directly. Staff believes the proposed policy to serve many purposes, including: (1) reduce the amount of City time and resources otherwise required to process each individual proposed representation; (2) allow the attorney to respond more quickly to client requests for assistance, which are often 2-1 Page 2, Item ~ Meeting Date 4 03 07 time sensitive; and (3) help protect client confidentiality by not exposing private matters to public disclosure where public disclosure is premature or not required. DECISION MAKER CONFLICTS: Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section 18704.2(a)(I) is not applicable to this decision. FISCAL IMP ACT: There is no fiscal impact to the General Fund. J :attomey/ Agenda Statements/waiver of potential conflicts of interest 3 27 07 2-2 SUBJECT: CONSIDERATION OF ATTORNEY REQUESTS FOR WAIVERS OF POTENTIAL CONFUCTS OF INTEREST I ADOPTED BY: AMENDED BY: COUNCIL POLICY CITYOFCHULA VISTA POLICY NUMBER EFFECTIVE DATE PAGE 10F4 I DATED: 04/03/07 I. RAC:Kr.ROTTNTl The City of Chula Vista ("City") periodically receives conflict of interest waiver requests from attorneys who were formerly employed by the City or who have served as outside counsel to the City. The requests arise out of the rules of professional conduct governing attorneys who practice law in California. Among other things, those rules require that, in certain circumstances, an attorney must obtain the informed written consent of a current or former client before beginning or continuing the representation of another client. This requirement typically arises when the interests of the two clients are, or may be, adverse to each other, or when the attorney has obtained confidential information about the first client that may be used to the detriment of that client in connection with the representation of another client. To date, each of these waiver requests has been presented to the City Council for consideration and action. II. PTTRPOSR The purpose of this Policy is to establish rules and procedures governing the application of the California Rules of Professional Conduct (the "Rules") to current and former members of the Chula Vista City Attorney's office and to outside counsel retained by the City. Implementation of the Policy will allow the City Attorney's office to consider conflict waiver requests submitted to the City by attorneys formerly employed by the City, or by law firms who have represented the City. The Policy will delineate the specific types of conflict waiver requests that can be considered and decided on by the City Attorney. Requests that fall outside of those identified in the Policy, shall be considered and acted on by the City Council. This Policy is intended to comply with, and implement, the Ru1es governing conflict of interest waivers. Those Ru1es are adopted by the Board of Governors of the State Bar of California and approved by the Supreme Court of California.l The Rules are binding on all members of the State Bar and take precedence over local regu1ation. Thus, to the extent this Policy conflicts with any provision of the Chu1a Vista Municipal Code, including CVMC 92.28.050, this Policy shall govern. 1 See, Cal.Rules of Pro fl. Conduct, 1-100. 2-3 SUBJECT: CONSIDERATION OF ATTORNEY REQUESTS FOR WAIVERS OF POTENTIAL CONFLICTS OF INTEREST I ADOPTED BY: AMENDED BY: llI. POT,Try COUNCIL POLICY CITYOFCHULA VISTA POLICY NUMBER EFFECTIVE DATE PAGE 20F4 I DATED: 04/03/07 A. AVOIDING REPRESENTATION OF ADVERSE INTERESTS An attorney who represents or has previously represented the City shall avoid representing interests adverse to the City's interests; this applies to attorneys employed by the City, as well as outside counsel retained by the City.2 Notwithstanding this RuIe, the attorney's representation of potentially adverse interests may be permitted in certain circumstances, if the attorney obtains the City's informed, written consent. Those instances in which representation is permitted if consent is obtained are discussed below. 1. Adverse Interests RuIe 3-310(C) provides that a member shall not, without the informed written consent of each client: (i) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (ii) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or (iii) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter. This RuIe contemplates the concurrent representation by an attorney of one or more clients whose interests are adverse to each other. Accordingly, any attorney who currently represents the City and is presented with representing another client whose interests are adverse to those of the City, as described in RuIe 3-310(C), must obtain the City's informed written consent before accepting or continuing the adverse representation. That consent must be obtained pursuant to the procedures outlined in section IILB., below. 2. Confidential Information RuIe 3-310(E) prohibits a member of the Bar from accepting employment adverse to a current or former client, without the informed written consent of the client, "where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." 2 Id at 3-310. 3 See, Cal.Rules of Prof' I. Conduct, 3-700. 2-4 SUBJECT: CONSIDERATION OF ATTORNEY REQUESTS FOR W ANERS OF POTENTIAL CONFLICTS OF INTEREST I ADOPTED BY: AMENDED BY: COUNCIL POLICY CITYOFCHULA VISTA POLICY NUMBER EFFECTIVE DATE PAGE 30F4 I DATED: 04/03/07 This Ru1e is intended to protect the confidences of the member's clients and is applicable to attorneys currently or formerly employed, or retained, by the City. The Ru1e applies to situations where confidences obtained through attorney-client communications or work product materials allow an unauthorized disclosure of confidential materials that could adversely affect the City or its Council Members, officials, or employees in the performance of their duties. Accordingly, any attorney who currently represents or has previously represented the City and has obtained material, confidential information of the City relative to the proposed adverse employment, must obtain the City's informed written consent before accepting the adverse representation. That consent must be obtained pursuant to the procedures outlines in section Ill.B., below. B. OBTAINING CITY'S CONSENT 1. Delegation of Authority If an attorney who currently represents or formerly represented the City is required to obtain the City's informed written consent pursuant to section Ill.A., of this Policy, he or she must do so by following the procedures set forth in this section. The City Council has delegated to the City Attorney the responsibility of making factual and legal determinations regarding the application of this Policy. If the matter in question involves the current City Attorney, the City Council shall retain jurisdiction over that matter. 2. Procedure a. An attorney who is required to obtain the City's informed written consent pursuant to this Policy must disclose, in writing, all relevant circumstances and actual or reasonably foreseeable adverse consequences to the City of the attorney accepting or continuing the potentially adverse representation. The City Attorney shall independently review the written disclosure. The City Attorney may request additional information relevant to the representation, as he or she deems necessary to assess the potential adverse consequences to the City. The City Attorney shall determine whether a conflict of interest exists and, if so, whether the City shou1d waive the conflict. b. Upon determining whether a conflict exists and, if so, whether a waiver shou1d be granted, the City Attorney shall issues a written decision. This written decision shall be forwarded to the individual and/or law firm requesting the waiver, with copies forwarded to the Mayor and City Council members. The decision of the City Attorney may be appealed within ten days to the Mayor and the City CounciL The Mayor or any member of the City Council may also request to hear the matter within the same time frame. P. Tn m;::tldno :::I t1f':(',i!':inn nllTQ.lmnt to thiq, P()li~v th~ ritv Attnmf':v mftv Tp.lv j!-::> COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: CONSIDERATION OF AITORNEY POLICY EFFECTIVE REQUESTS FOR WAIVERS OF NUMBER DATE PAGE POTENTIAL CONFLICTS OF 40F4 INTEREST . I ADOPTED BY: I DATED: 04/03/07 I AMENDED BY: I upon statutes, regulations, case law, treatises, and Opinions of the Attorney General and any other relevant material deemed necessary to assist in making his or her decision. The City Attorney will take into consideration that attorneys, in accordance with the Ru1es of Professional Conduct, are not required to disclose confidential information regarding their clients to any third parties. In addition the City Attorney will take into consideration whether the attorney has personally worked on a matter and the time frame of his last employment with, or by, the City. d. If a written waiver is not granted by the City Attorney or City Council, as specified in this Policy, the attorney requesting the waiver, including his or her firm when applicable, may not engage in the adverse representation. If the attorney has already accepted employment which is determined to be adverse to the City and the City Attorney determines the Ci~ should not waive the conflict of interest, the attorney must withdraw from the adverse employment. C. POLICY EXCEPTIONS Potential conflicts of interest, and requests for waivers of those conflicts, which are not covered by this Policy or which directly involve the current City Attorney, will be considered directly by the City Council. H:/Council Policy Updates/Conflict of Interest Policy 2-6 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING CITY COUNCIL POLICY REGARDING CONSIDERATION OF ATTORNEY REQUESTS FOR WAIVERS OF POTENTIAL CONFLICTS OF INTEREST WHEREAS, the City of Chula Vista ("City") periodically receives conflict of interest waiver requests from attorneys who were formerly employed by the City or who have served as outside counsel to the City; and WHEREAS, this requirement typically arises when the interests of the two clients are, or may be, adverse to each other, or when the attomey has obtained confidential information about the fIrst client that may be used to the detriment of that client in connection with the representation of another client; and WHEREAS, these requests are currently considered individually by the City Council; and WHEREAS, a policy authorizing the City Attorney to review and consider these requests would: (1) reduce the amount of City time and resources otherwise required to process each individual proposed representation; (2) allow the attorney to respond more quickly to client requests for assistance, which are often time sensitive; and (3) help protect client confidentiality by not exposing private matters to public disclosure where public disclosure is premature or not required; and WHEREAS, the proposed City Council Policy Regarding Consideration of Attorney Requests for Waivers for Potential Conflicts of Interest would: (i) authorize the City Attorney to consider waiver requests, determine whether a potential conflict exists and, if so, whether the City should waive that conflict, pursuant to the California Rules of Professional conduct; (ii) require the City Attorney to provide a written copy of the determination to the attorney requesting the waiver, and to the Mayor and City Council; and (iii) allow a ten-day appeal period during which the requesting attorney can appeal the City Attorney's decision to the City Council, or the Mayor or member of the City Council can request that the City Council hear the matter directly. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista adopt the City Council Policy regarding consideration of attorney requests for waivers of potential conflicts of interests. Presented by Approved as to form by Ann Moore City Attorney ~~~~~O\ Ann Moore City Attorney 2-7 CITY COUNCIL AGENDA STATEMENT ~'Yf:. elIT OF ..lE~ (HULA VISTA Meeting Date: 4/3/2007 Item.3 ITEM TITLE: RESOLUTION AUTHORIZING THE APPROPRIATION OF $70,000 FROM AVAILABLE BALANCE OF TRUNK SEWER CAPITAL RESERVE FUNDS TO PROJECT NO. SW249 FOR THE PREPARATION OF A JOINT FEASIBILITY STUDY FOR THE CONSTRUCTION OF A WASTEWATER RECLAMATION PLANT. CITY ENGINEER 51 ~ INTERIM CITY MANAGER d I SUBMITTED BY: REVIEWED BY: 4/5THS VOTE: YES X NO BACKGROUND Concurrent with the General Plan Update, the City prepared a Wastewater Master Plan Update, which estimated that the City requires additional treatment capacity for five to six million gallons per day of sewage with build-out. Several options are being pursued to meet this anticipated need. One option for the provision of the additional treatment capacity is the construction of an independent potentially City-owned, wastewater reclamation facility. To facilitate this, the City has partnered with Sweetwater Authority and Otay Water District for a joint feasibility study for a Wastewater Reclamation Plant that would serve the needs of the three agencies. The study had an initial estimated total cost of $150,000 to be shared across the three agencies. The study has gained the support of the San Diego County Water Authority, which has resulted in the award ofa $25,000 grant. 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 defined under Section 15378 of the State CEQA Guidelines at this time; therefore, pursuant to Section 15060 (c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Once the project has been defined, environmental review will be required and a CEQA determination completed. RECOMMENDATION: That Council approve the Resolution authorizing the appropriation of $70,000 from the available balance of Trunk Sewer Capital Reserve Funds to Project SW249 for 3-1 - Page 2, Item -= Meeting Date 4/3/2007 the preparation of a Joint Feasibility Study for the construction of a Wastewater Reclamation Plant. BOARDS/COMMISSION RECOMMENDATION: At its July 31, 2006 meeting, the Interagency Water Task Force endorsed this effort given the regional need to increase sources and use of recycled water. DISCUSSION Sewage generated in the City of Chula Vista is conveyed to the City of San Diego's Point Lorna and Southbay Treatment Plants through a contract with the City of San Diego. "Treatment capacity rights" is the maximum amount of sewage that an agency can send into the treatment system on any given day through its contract with the City of San Diego's metropolitan sewage system. Treatment capacity is quantified in terms of million gallons per day (mgd). The Wastewater Master Plan Update was done concurrently with the General Plan Update to quantify the amount of sewage that would be generated by the City at buildout under any of the land use scenarios evaluated as part of the General Plan Update. Based on those findings, steps would be taken to ensure that the City either had adequate capacity rights or a plan to acquire the rights in the Metro system to sustain the projected development contained within the adopted General Plan. The City currently has treatment capacity rights to 19.843 million gallons per day. The overall Metro system capacity has been increased from 240 mgd to 255 mgd with the completion of Southbay Water Reclamation Plant (a 15 mgd plant). Upon completion of the capacity re-rating process (currently underway), it is estimated that the City will gain an additional 1.021 mgd of treatment capacity rights as our portion of the addition of that plant, giving the City a total capacity of20.864 mgd. Based on current projections, the City's existing Metro capacity rights will be exceeded by year 2011. Projections show that the City will be generating approximately 26.2 mgd at build-out (2030) meaning that the City requires an additional five to six mgd of treatment capacity to sustain the City at buildout. Additional capacity can be secured in a variety of ways: the purchase or lease of the required capacity rights from another participating agency in the Metro system that has excess capacity rights, the construction of a treatment facility (i.e., a reclamation plant), partnering with the City of San Diego to accelerate or increase existing plant expansions, and/or planned large developments designed to include reclamation plants. Construction of a New Treatment Facility While all options to secure additional capacity are being explored, tonight's action applies specifically to the effort to assess the feasibility of the City of Chula Vista constructing a wastewater reclamation plant. 3-2 '"' Page 3, Item ..:" Meeting Date 4/3/2007 The type of wastewater reclamation plant under consideration is commonly referred to as a "Scalping Plant" because it operates as follows: flow is diverted ("scalped") from an adjacent sewer line into the plant where it undergoes treatment to generate Title 22 recycled water that could be used for irrigation or industrial purposes. The resulting by-product of the treatment process (Le., effluent with a high solids concentration) is then sent back into the same adjacent sewer line for transport to the wastewater treatment facility. Otay Water District and Sweetwater Authority recently completed independent studies that indicate that both agencies have a need for recycled water that could be generated through this partnership. The project team is currently considering two potential sites for this facility: . Site I - This site is generally located at the southwest comer of the intersection of Main Street and Fourth Avenue, Chula Vista. At this location, the plant could be served by Salt Creek, Date/Faivre and Main Street Trunk Sewer lines. . Site 2 - This site is generally located at the end of Quarry Road in the vicinity of the State Route 125 crossing of the Sweetwater River on San Diego County property. At this location the plant could be served by the Spring Valley Outfall since that line also conveys flow from Chula Vista. The project team is collaborating with City staff in reviewing available options for the siting of this facility, to ensure that sites being considered have not been previously identified for other higher priority City projects. Other Agency Interests Sweetwater Authoritv Sweetwater Authority does not currently have recycled water capabilities. Recently Sweetwater prepared a Recycled Water Master Plan that evaluated the potential market for recycled water and the Agency's ability to meet the needs of its potential customers either through the utilization of its existing potable water distribution systems and water sources or through the construction of new recycled water distribution systems and new recycled water sources. Otay Water District Otay Water Authority currently has a wastewater reclamation plant and distribution systems, which they use to serve their customers. A significant portion of their customer base is located in the eastern territories of the City. Through a recent evaluation of their recycled water generation capabilities (including the supplemental flow obtained through a long-term purchase agreement with the City of San Diego) and the market demand, Otay determined an expansion of their recycled water generation capabilities is necessary. By constructing a wastewater treatment plant that would generate five to six mgd of recycled water, which could be utilized by Otay and Sweetwater, the City could prevent five to six mgd of flow from going into the Metro system, hence meeting the capacity need. In recognizing these intersecting interests the three agencies decided to pursue a joint project, beginning with a feasibility study that would examine how to address the needs of all three agencies. 3-3 ~ Page 4, Item..:> Meeting Date 4/3/2007 Since they were on a very aggressive schedule, Sweetwater elected to be the lead agency for the purpose of retaining a Consultant to prepare the feasibility study and managing the project. San Diego County Water Authority Given the regional need to increase sources and uses of recycled water, the project was supported by the San Diego County Water Authority with the award of a $25,000 grant. Project Status & Funding Request Interagencv Expenditures - Consultant Costs After reaching tentative interagency agreement on the scope and goals of the study, the City agreed to participate in the partnership with the understanding that individual agency contributions would not exceed $50,000 (within the City Manager's approval authority). (See Attachment I). The $25,000 San Diego County Water Authority grant brings the total cost to be shared by the three partners to $125,000 or about $42,000 each. The project team, made up of staff from the three agencies, issued a Request for Proposals, and received responses from two consultants. After evaluating the proposals, RMC Water and Enviromnent was selected. RMC is a local San Diego firm with experience in reclamation plant design and will prepare the feasibility study for an amount not to exceed $144,000. It is anticipated that this study will be completed within the next four months. A copy of the consultant's scope of services for the project is attached (See Attachment 2). In-house Project Expenditures - City Staff Costs In addition to the shared costs incurred by City, there are other in-house project-related expenditures associated with this project. City staff is currently participating in the study and assisting the Consultant with the following tasks: quantification of the flow generation from the City, review of the siting criteria, determination of infrastructure requirements, review of economic feasibility plans, comparison of plant costs to Metro Expenditures, determination of rate impacts and other related project tasks needed to complete the project. The in-house costs are currently estimated at $20,000. Therefore, the City's total cost to complete the project is currently estimated at $70,000. DECISION MAKER CONFLICT 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 the subject of this action. FISCAL IMPACT There is no impact to the General Fund with this action. Chula Vista's portion of the project cost will be funded by the Trunk Sewer Capital Reserve Fund. Shared project costs are not to exceed $150,000 without prior written approval, with each of the three participating agencies contributing 3-4 -:z Page 5, Item ~ Meeting Date 4/3/2007 no more than $50,000. Otay Water has requested an additional task specific to their situation ($20,000 cost) that is being paid solely by their agency (See Attachment 3). City in-house staff costs are estimated at $20,000. Therefore, approval of this resolution will authorize the appropriation and utilization of $70,000 of Trunk Sewer Capital Reserve Funds for this project. ATTACHMENTS 1. Letter of interest/Support for Funding the Study 2. Scope of Services 3. Fiscal Analysis - Project Cost Estimate. Prepared by: Anthony Chukwudolue, Sr. Civil Engineer, Engineering Department J: IEngineerlAGENDA \CAS2007\04-03-07\MBR.JointFeasibility. revisedL W.doc 3-5 ATTACHMENT ...,,~ - ....... .. ,-- -?.. , ',. . I'.:'. OFFICE OFTHE CI'TY MANAGER JunE127, 2006 File No. 0790-SS-KY-70S Mr. Dennis Bostad, General Manager Sweetwater Authority . P.O. Box 2328 Chula Vista, CA 91912-2328 Dear Mr. Bostad: SUBJECT: Membrane Bioreactor Feasibility Study - Letter of Interesl/Support for Funding the Study The City of Chula Vista understands that Sweetwater Authority (Sweetwater) and Otay Water District (Otay), intend to pursue a feasibility study for a membrane bioreactor facility that will be built to meet the needs of all the agencies involved. Furthermore, we also understand that San Diego County Water Authority (SDCWA) has agreed to participate financially in this study and have provided funding in the amount of $25,000 through their Financial Assistance Program. Based on the agreements reached at the last staff meeting, all the work associated with this project will be coordinated through Sweetwater with the assistance of a civil engineering consulting firm. Selection of the consultant will be made by Sweetwater's Governing Board: however, a representative(s) from our agency will be participating to provide input in the selection process. An initial scope of work was received with your letter. We understand that it is subject to change and is dependent on the final terms of the consultant agreement. The City of Chula Vista agrees to have this work completed and will proportionally share in the costs to complete the study. In your letter, you indicated that the cost of the project would be for an amount not to exceed $1S0,OOO. Based on our calculations, Chula Vista can antlcipate its cost to be approx. $42,000. However, to accommodate incidental costs associated with projects of this nature, the City will be willing to participate in the study up to an amount not to exceed $SO,OOO. Chula Vista will not be liable for expenditures beyond this amount unless written approval is provided. Payment shall be forwarded to your agency within thirty (30) days of receipt of your invoice and supporting documentation. Upon receipt of the notice of funding from CWA, and finalizing the scope of work and contract with a consultant, the cost sharing can then be formalized. The City of Chula Vista's contact for this project shall be Leah Browder, Acting Director of Engineering. Please direcl all correspondence and notices to her attention. Since~ IJ? /~ I.Ji~_ThOmson . Interim City Manager cc: Dana Smith, Assistant City Manager Leah Browder, Acting Director of Engineering J;\Engin,erISEWERIMETRO\Capacity AcquisitionVoint-City-SW A-MBR-Feasibility-StudylSW A-Interest-Letter .3l:.doc 276 FOURTH AVENUE' CHULA VISTA. CALIFORNIA 91910' (619) 691-5031 . FAX (619) 409-5884 .. -...-.--....-....-... 3-6 <\TTACHMENT 2. AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND RMC WATER AND ENVIRONMENT This agreement is made and entered into as of tJOV.e..YY\ be,\-- q , 2006. by and between the SWEETWATER AUTHORITY (hereinafter referred to as the "Authority"), a joint powers agency operating under the Irrigation District Law, Water Code !l 20500 et seq., and RMC Water and Environment (hereinafter referred to as "Consultant"). RECITALS A. Three (3) agencies: Sweetwater Authority, City of Chula Vista, and Otay Water District, are in need of professional services for the following project: MEMBRANE BIOREACTOR FEASIBILITY STUDY (hereinafter referred to as "the Project"). B. services. Consultant is duly licensed and has the necessary qualifications to provide such C. The Authority is acting as "lead agency" for the three (3) agencies to contract with Consultant to have the said work completed. D. The party's desire by this agreement to establish the terms for Authority to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: (1) Services. Consultant shall provide the Authority with the services described in the Scope of Services attached hereto as Exhibit "A.n (2) Comoensation. (a) Subject to Paragraph 2(b) below, the Authority shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit 'B." (b) Consultant will perform services on a time-and-material basis. In no event shall the total amount,paid for services rendered by Consultant pursuant to Exhibit "A" exceed the sum of (One Hundred and Forty-Four Thousand Dollars) ($144,000). Periodic payments shall be made within thirty (30) days of receipt of a statement for services rendered. Payments to Consultant for work performed will be made on a monthly billing basis. 3-7 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND RMC WATER AND ENVIRONMENT This agreement is made and entered into as of , 2006, by and between the SWEETWATER AUTHORITY (hereinafter referred to as the "Authority"). a joint powers agency operating under the Irrigation District Law, Water Code ~ 20500 et seq., and RMC Water and Environment (hereinafter referred to as "Consultant"). RECITALS A. Three (3) agencies: Sweetwater Authority, City of Chula Vista. and Otay Water District, are in need of professional services for the following project: MEMBRANE BIOREACTOR FEASIBIL TIY STUDY (hereinafter referred to as "the Project"). B. Consultant is duly licensed and has the necessary qualifications to provide such services. C. The Authority Is acting as "lead agency" for the three (3) agencies to contract with Consultant to have the said work completed. D. The party's desire by this agreement to establish the terms for Authority to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: (1) Services. Consultant shall provide the Authority with the services described in the Scope of Services attached hereto as Exhibit "A." (2) Comoensation. (a) Subjectto Paragraph 2(b) below, the Authority shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit "B." " (b) Consultant will perform services on a time-and-material basis. In no event shall the total amount.paid for services rendered by Consultant pursuant to Exhibit "A" exceed the sum of (One Hundred and Forty-Four Thousand Dollars) ($144,000). Periodic payments shall be made within thirty (30) days of receipt of a statement for services rendered. Payments to Consultant for work performed will be made on a monthly billing basis. 3-8 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) (3) Additional Work. If changes in the work seem merited by Consultant or the Authority, and informal consultations with the other party indicate that a change is warranted, it shall be processed by the Authority in the following manner: a letter outlining the changes shall be forwarded to the' Authority by Consultant with a statement of estimated changes in fee or time schedule. An amendment to the agreement shall be prepared by the Authority and executed by both parties before performance of such services or the Authority will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this agreement. (4) Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by Authority. (5) Time of Performance. Consultant shall perform its services hereunder in a prompt and timely manner, in accordance with the Activity Schedule shown in Exhibit "C" and shall commence performance upon receipt of the written Notice to Proceed from the Authority. The Notice to Proceed shall set forth the date of commencement of work. (6) Delavs of Performance. Neither Authority nor Consultant shall be considered in default of this agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots, and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage, or judicial restraint. . Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this agreement. . 2 3-9 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) (7) Comoliance with Law. . (a) Consultant shall comply with all applicable laws, ordinances, codes, and regulations of the federal, state, and local govemment. (b) Consultant shall assist the Authority in obtaining and maintaining all permits required by federal, state, and local regulatory agencies. (c) Consultant is responsible for all costs of clean up and/or removal of hazardous and toxic substances spilled as a result of its services or operations performed under this agreement. (8) Standard of Care. Consultant's services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. . (9) Assianment and Subconsultant. Consultant shall not assign, sublet, or transfer this agreement or any rights under or interest in this agreement without the written consent of the Authority, which may be withheld for any reason. Nothing contained herein shall prevent Consultant from employing independent associates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. (10) Indeoendent Consultant. Consultant is retained as an independent Consultant and is not an employee of Authority. No employee or agent of Consultant shall become an employee of Authority. The work to be performed shall be in accordance with the work described in Exhibit "A: subject to such directions and amendments from Authority as herein provided. (11 ) Intearation. This agreemertt represents the entire understanding of Authority and Consultant as to those matters contained herein, and supersedes and cancels any prior oral or written understanding, promises or representations with respect to those matters covered hereunder. This agreement may not be modified or altered except in writing signed by both parties hereto. This is an integrated agreement. 3 3-10 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) (12) Insurance. A. Commercial General Liabilitv 1. The Consultant shall take out and maintain, during the performance of all work under this agreement and for twenty-four (24) months following the date of Project completion and acceptance by the Authority, in amounts not less than speCified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the Authority. 2. Coverage for Commercial General Liability insurance shall be at least as broad as the following: a. Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 0001). 3. Commercial General Liability Insurance must include coverage for the following: a. Bodily Injury and Property Damage b. PersonallnjuryJAdvertising Injury c. Premises/Operations Liability d. Products/Completed Operations Liability e. Aggregate Limits that Apply per Project f. Explosion, Collapse and Underground (UCX) exclusion deleted g. Contractual Liability with respect to this Contract h. Broad Form Property Damage i. Independent Contractor's Coverage 4. All such policies shall name the Sweetwater Authority, the Board and each member of the Board, its officers, employees, agents, and Authority designated volunteers as Additional Insureds under the policy. 5. The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the Sweetwater Authority. '.. 4 3-11 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) B. Automobile Liabilitv 1. At all times during the performance of the work under this agreement and for twenty-four (24) months following the date of Project completion and acceptance by Authority, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the Authority. 2. Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 0001 (ed. 6/92) covering automobile liability, Code 1 (any auto). 3. - The automobile liability program may utilize deductibles, but not a self- insured retention, subject to written approval by the Authority. 4. All such policies shall name the Sweetwater Authority, the Board and each member of the Board, its officers, employees, agents, and Authority designated volunteers as Additional Insureds under the policies. C. Workers' Compensation/Emplover's L1abilitv 1. At all times during the performance of the work under this agreement and for twenty-four (24) months following the date of Project completion and acceptance by the Authority, the Consultant shall maintain workers' compensation in compliance with applicable statutory requirements and Employer's Liability Coverage in amounts indicated hereln. 2. Such insurance shall include an insurer's Waiver of Subrogation in favor of the Authority and will be in a form and with Insurance companies acceptable to the Sweetwater Authority. 3. If insurance Is maintained, the workers' compensation and employer's liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to-written approval by the Authority. - 4. Before beginning work, the Consultant shall fumlsh to the Authority satisfactory proof lha\ he/she has taken out for the period covered by the work under this agreement, full compensation insurance for all persons employed directly by it to carry out the work contemplated under this agreement, all in accordance with the ''Workers' Compensation and Insurance Act," Division IV of the Labor Code of the State of Callfomia and any acts amendatory thereof. Consultant shall require all subconsultants to obtain and maintain, for the 5 3-12 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) period covered by the work under this agreement, workers' compensation of the same type and limits as specified in this Section. D. Professional Liability (Errors and Omissions) At all times during the performance of the work under this agreement and for twenty-four (24) months following the date of completion of the Project and acceptance by Authority, the Consultant shall maintain professional liability insurance, in a form and with insurance companies acceptance to the Authority and in an amount indicated herein. E. Minimum Policv Limits Reauired The following insurance limits are required for the Contract: Employer's Liability Combined Sinqle Limit $1,000,000 per occurrencel $2,000,000 aggregate for bodily injury, personal injury and property damage $1,000,000 per occurrence for bodily injury and property damage $1,000,000 per occurrence $1,000,000 per claim and aggregate Commercial General Liability Automobile Liability Professional Liability (errors and omissions) F. Evidence Required 1. Prior to execution of the agreement, the Consultant shall file with the Authority evidence of insurance from an insurer or Insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 2010 (or insurer's equIvalent) ~gned by the insurer's representative and Certificate of Insurance (Acord Form 25-5 or equivalent). All evidence of Insurance shall be certified by a properly authorized officer, agent or qualified representative ofthe insurer and shall certify the names ofthe Insured, any additional primary insureds, where appropriate, the type and amount of the insurance, the 6 3-13 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) location and operations to which the insurance applies, and the expiration date of such insurance. G. Policv Provisions Required 1. All policies shall contain a provision for thirty (30) days advance written notice by the insurer(s) to the Authority of any cancellation. Statements that the carrier "will endeavor" and "that failure to mail such notice shall impose no obligation and liability upon the company, its agents or representatives," will not be acceptable on certfficates. 2. All policies shall contain a provision stating that the Consultant's policies are primary insurance and that the insurance of the Authority or any named insureds shall not be called upon to contribute to any loss. H. Qualifvina Insurers 1. All policies required shall be issued by acceptable insurance companies, as detennined by the Authority, which satisfy the following minimum requirements: a. Insurance carriers shall be qualified to do business in Califomia and maintain an agent for process within the state. Such insurance carrier shall have not less than an "A" policyholder's rating and a financial rating of not less than "Class VII" according to the latest Best Key Rating Guide. I. Additional Insurance Provisions 1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the Authority, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consuitant pursuant to this agreement, including but not limited to, the provisions concerning indemnification. 2. ,If at any time during the life of the 'agreement, the Consultant fails to maintain in full force any insurance required by the agreement documents, the Authority may acquire the necessary insurance for the Consultant and deduct the cost thereof from the appropriate progress 'payments due the Consultant. 3. The Consultant shall include all subconsultants as insureds under its policies or shall fumish separate certfficates and endorsements for each subconsultant. All coverages for subconsultants shall be subject to all of the requirements stated herein. 7 3-14 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) 4. The Authority may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. 5. Neither the Sweetwater Authority nor the Board, nor any member of the Board, nor any of the directors, officers, employees, agents, or volunteers shall be personally responsible for any liability arising under or by virtue of the Contract. (13) Indemnification. Consultant agrees to protect, save, defend, and hold harmless the Authority and its Board and each member of the Board, officers, agents, and employees from any and aJI claims, liabilities, expenses, or damages of any nature, Including attorneys' fees, for injury or death of any person, or damage to property, or interference with use of property, arising out of or in any way connected with negligent acts, errors, or omissions or willful misconduct performed under this agreement by Consultant, Consultant's agents, officers, employees, subconsultants, or independent consultants hired by Consultant. The only exception to Consultant's responsibility to protect, save, defend, and hold harmless Authority, is due to the sole negligence, willful misconduct, or active negligence of Authority. This hold harmless agreement shall apply to ali liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount-of indemnification to be provided by Consultant. (14) Laws. Venue. and Attornevs' Fees. This agreement shali be interpreted in accordance with the laws of the State of Califomia. If any action is brought to interpret or enforce any term of this agreement, the action shall be brought in a state or federal court situated in the County of San Diego, State of California. In the event of any such litigation between the parties, the prevailing party shall be entitled to recover all reasonable costs incurred, including reasonable attorney's fees, as determined by the court. (15) Termination or Abandonment. (a) AuthOrity has the right to terminate or abandon any portion or all of the work under this agreement by giving ten (10) calendar days written notice to Consultant. In such event, Authority shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed forthat portion of the work wmpleted and/or being abandoned. Authority shall pay Consultant the reasonable value of services rendered for any portlqn of the work completed priorto termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by Authority and 8 3-15 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) Consultant of the portion of such task completed but not paid priorto said termination. Authority shall not be liable for any costs other than the charges or portions thereof, which are specified herein. Consultant shall not be entitled to payment for unperformed services. and shall not be entitled to damages or compensation for termination of work. (b) Consultant may terminate its obligation to provide further services under this agreement upon thirty (30) calendar days' written notice to Authority only in the event of substantial failure by Authority to perform in accordance with the terms of this agreement through no fault of Consultant. (16) Organization. Consultant shall assign Harold Bailey as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the Authority. (17) Notice. Any notice or instrument required to be given or delivered by this agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested. postage prepaid. addressed to: Authority: Consultant SWEETWATER AUTHORITY Altn: James L. Smyth P.O. Box 2328 Chula Vista. CA 91912-2328 RMC Water and Environment Attn: Harold Bailey 12707 High Bluff Drive. Suite 200 San Diego, CA 92130 and shall be effective upon receipt thereof. (18) Third PartY Riahts. Nothing in this agreement shall be construed to give any rights or benefits to anyone other than the Authority and the Consultant. . .. 9 3-16 AGREEMENT FOR SERVICES BETWEEN THE SWEETWATER AUTHORITY AND (Consultant) IN WITNESS WHEREOF, the parties have executed this agreement as of the date first written above. SWEETWATER AUTHORITY: B, &tZMu~~ ~ Dennis Efostad General ~anager CONSULTANT: By: --?' -C (name) 77;}1fi'l/cJ::J ru~~J~ Ji:..J1.U;,c- f/;w jl/U-rr/'<7 {,-;4(' a.~ 1'".... :;2ftt (... 0I:c.dc..'...vD _.{;(; ,;8il':? &PV.:;,.t-,<. .....;;:.q Approved as to form: 1fj~", J .~~ General Counsel SWEETWATERAUTHO~TY 1:\engr\Gen\membrane b1orea~r\RMC ConsultantAgreemenldoc , '. 10 3-17 Project: Sweetwater Authority - Membrane Bioreactor Feasibility Study Subject: Consulting Services Agreement dated November 2, 2006 Exhibit A Scope of Work The following designations are us<;d throughout the Scope of Work: . Project, which refers to the Sweetwater Authority Membrane Bioreactor Feasibility Study . Authority, 'which refers to the Sweetwater Authority . City, which refers to the City of Chula Vista . Otay, which refers to the Otay Water District . RMC, which refers to RMC Water and Environment The major tasks under are as follows: . Task I - Collect and Review Existing Data . Task 2 - Evaluate Recycled Water Demands . Task 3 - Evaluate Wastewater Flows . Task 4 - MER Evaluation . Task 5 - Evaluate Recycled Water Infrastructure . Task 6 - Economics . Task 7 - Environmental . Task 8 -Meetings . Task 9 - Deliverables . Task 10 - Project Management The detailed scope of work for each task is provided below. Each task description includes approach and assumptions. l.. 11/2/2005 A.l Exhibit A - Scope of Work 3-18 Project: Sweetwater AuthoMty - Membrane Bioreactor Feasibility Study Subject: Consulting Services Agreement dated November 2, 2006 Task 1 Collect and Review Existing Data RMC shall be provided with and rcmew, while keeping a libraI)' of, information consisting of existing reports, data, .information, and plans, including the following: Sweetwater Authority Documents A. Recycled Water Master prim, dated June 2005 B. Regional Membrane Bioreactor System Study, dated November 4, 2005 City of Chula Vista Documents A. Spring Valley Outfall and City of Chula Vista Wastewater Flow Monitoring Data B. Wastewater flow data, including daily flow variations for the Spring Valley Sanitation District's Spring Valley Outfall, and the City's Salt Creek, Main Street, and Date-Fairve trunk pipelines C. Wastewater Agreement with the City of San Diego D. Plans for the Spring Valley Sanitation District Spring Valley Outfall Pipeline E. Proposed Chula Vista Bayfront Master Plan implementation phasing F. Water Reclamation Plant Feasibility Study, dated Apri12005, by Brown & Caldwell Otav Water District Documents A. Water Resources Master Plan, dated August 2002 B. Agreement with the City of San Diego, dated October 2003 C. Wastewater characterization, including total suspended solids erSS), biochemical oxygen demand (BOD), chemical oxygen demand (COD), and other tests as requested by RMC at the prop!>Sed locations of the two proposed MBR sites. RMC shall provide a list of constituents and collection methods. Olay shall take the samples over a minimum two-week duration and perform the laboratory tests requested by RMC. However, a sampling period of two weeks shall only give information for that portion of the year. RMC shall seek additional water quality information from MWWD to better understand if there are significant annual fluctuations in wastewater quality that would influence design of facilities. D. Current' Waste Discharge Permits E. Recycled water demand data, diurnal demand patterns, and peaking factors Other Documents A. Basin Plan Objectives for all areas where recycled water shall be used B. Spring Valley Sanitation District Water Reclamation Facility Project Feasibility Study, dated May 14, 1997, by Metcalf and Eddy Task 1 AssumDtions: . RMC shall be provided with information as listed above. Task 2 Evaluate Recycled Water Demands RMC shall receive from and review recycled water demand information from the Authority and Otay to be used as the basis for determining recycled water average annual, peak month, and peak daily demands. 11/2/2006 A-2 exhibit A - Scope of Work 3-19 Project: Sweetwater Authority - Membrane Bloreaetar Feasibility Study Subject: Consulting Services Agreement dated November 2, 2006 Subtask 2.1 REVIEW AUTHORITY RECYCLED WATER DEMANDS RMC shall review the market analysis included in the Authority's R WMP, and shall evaluate haw the demands shall be phased in over time (Bayfront Development) and how they coincide with Otay demands. Subtask 2.2 REVIEW OTAY DEMANDS RMC shall review Otay recycled water demands and assumptions on demand shifting between Otay and the City of San Diego South Bay WRF. Subtask 2.3 EVALUATE DEMAND CURVES RMC shall develop recycled water demand curves (annual, monthly, and peak day) for both the Authority and Otay for two separate time periods to be determined in consultation with the Authority. Task 2 AssumDtions: . RMC shall assume there are no demands associated with the proposed LS Power Plant. . City expects to exceed its Metro capacity in 2010 . City expects to reach build out in 2030 . No change in Otay's recycled water projections from the Master Plan Task 3 Evaluate Wastewater Flows RMC shall evaluate wastewater flow and quality characteristics with the assistance of the City of San Diego (Metro WW model) and Otay (wastewater sampling and analysis). Subtask 3.1 EVALUATE WASTEWATER FLOWS RMC shall evaluate current wastewater flows and future flows (for the time periods determined under task 2.3) to be conveyed in the various trunk pipelines proximate to the two MBR siting options, including estimated minimum, maximum, and average daily flows. RMC shall use historical data derived from the web-based flow monitoring system effort for the analysis on current flow generation. Based on the City's future flow generation data analysis, RMC shall determine the total available wastewater flow that could be conveyed to the proposed MBR plant for each MBR siting option. This determination shall consider minimum flow requirements needed to flush s~lids to the Metro system. Subtask 3.2 WASTEWATER CHARACTERIZATION RMC shall review available wastewater quality data, and provide to Otay a sampling plan to gather additional data necessary to evaluate applicability to Title 22 requirements. Water quality data to be reviewed is expected to include total suspended solids erSS), biochemical oxygen demand (BOD), chemical oxygen demand (COD), and other tests as requested by RMC at the proposed locations of the two proposed MBR sites. Subtask 3.3 TITLE 22 QUALITY DETERMINATION Based on existing and additional water quality data collected by Otay, RMC shall evaluate wastewater quality to determine if Title 22 (disinfected tertiary) water can be produced with an MBR plant with disinfection, without additional treatment being required. Exhibit A - Scope of Work 11/2/2006 A-3 3-20 Project: Sweetwater Authority - Membrane Biareactor Feasibility Study Subject: Consulting Services Agreement dated November 2, 2006 Task 3 Assumotions: . The City of San Diego monitors all the discharges from participating agencies into the Metro system. The City bas been granted access to this web-based flow monitoring system. . The City shall provide data on future flow generation from each of the wastewater basins, based on the projections from the Wastewater Master Plan. . Otay shall take samples over a minimum two-week duration and perform all laboratory tests as requested by RMC. Task 4 MBR Evaluation RMC shall perform an MBR evaluation that includes the following subtasks: Subtask 4.1 REVIEW SDCWA MBR STUDY Review the San Diego County Water Authority Regional Membrane Bioreactor System Study, as it relates to the Site 1 MBR facility. Subtask 4.2 SIZE FACILITY Based on recycled water demands and wastewater flow availability as determined in Tasks 2 "and 3, determine appropriate capacity ofMBR plant <at both siting alternatives). Sizing sball consider seasonal as well as dally demand peaking consideration. Subtask 4.3 IDENTIFY Low DEMAND MANAGEMENT OPTIONS Identify four potential strategies to store, retain, or optionally dispose of recycled water during low recycled water demand periods. Identify advantages and disadvantages of each strategy. Subtask 4.4 ANAL VZE RESIDUALS Determine accurate estimates of the amount of residuals from the plant to be sent to Metro as measured by SS, COD. and the quantity ofretum flow. Subtask 4.5 IDENTIFY MBR FACILITIES Determine appropriate MBR and associated facilities required to produce Title 22 recycled water. Subtask 4.6 IDENTIFY DIVERSION FACILITIES Determine facilities'required to deliver wastewater to the MBR. Subtask 4.7 , DEVELOP SITE PLAN Prepare Preliminary MBR Site Plan in sufficient detail to prepare preliminary construction cost estimate for the facility. Operational storage and pumping requirements identified in Task 5 shan be included in the site plan. '.. Task 4 Assumotions: . This task will build upon the MWH SDCW A study. 11/212006 A-4 Exhibit A - Scope of Work 3-21 Project: Sweetwater Authority - Membrane Bioreactor Feasibility SbJdy Subject: Consulting ServIces Agreement dated November 2, 2006 Task 5 Evaluate Recycled Water Infrastructure RMC shall complete the following items as Task 5: Subtask 5.1 EVALUATE AUTHORITY INTERTIE RMC shall work with Authority staff to determine intertie pipeline sizes and alignments to serve planned Authority distribution system. Subtask 5.2 EVALUATE OTAY INTERTlE RMC shall work with Otay staff to determine intertie pipeline sizes and alignments to serve Otay's recycled water system. Subtask 5.3 IDENTIFY OPERATIONAL STORAGE AND PUMP STATION REQUIREMENTS RMC shall identify operational storage (volume) and pumping requirements (capacity, HP) for service to the Authority/Olay recycled water systems (as appropriate). Task 5 Assumotions: . Hydraulic modeling shall be performed by the Authority. . For Site 1 MER alternative, RMC shall assume recycled water in the Authority's service area shall be delivered to operational storage at the Judson Reservoir site, and that the infrastructure is as developed nnder Task 5.l. . For Site 2 MER alternative, RMC sball assume recycled water in the Authority's service area sball be delivered to the service area from Otay's Pairymart Road Pipeline, and that the infrastructure is as developed under Task 5.!. . For Site 1 MER alternative, recycled water sball be delivered to Otay's Pairymart Road Pipeline from the MER. . For Site 2 MER alternative, recycled water shall be delivered to Otay's recycled water storage ponds. Task 6 Economics Task 6 shall include the following subtasks: Subtask 6.1 CONSTRUCTION COST ESTIMATES AND ANNUAL O&M COSTS FOR MBR FACILITIES RMC shall prepare a construction cost estimate and annual operating and maintenance (O&M) costs for MER facilities, influent divefs\on facilities, effluent pump station, operational storage, and intertie and distnbotion pipelines. To be consistent with SRF funding requirements, RMC's analysis of cost shall comply with SWRCB requirements of conducting a cost effectiveness evaluation of alternatives over a 20 year planning period. For each alternative RMC shall: . Estimate the alternative's capital cost and the year the alternative could most likely be placed in service. . Estimate the annual O&M costs of the alternative, by year, from start-up through the time period for analysis and prepare annual cash flow diagrams. . Estimates and timing of repair and rehabilitation, such as major equipment rehabilitation, needed during the planning period. 11/2/2006 A.S exhibit A - Scope of Work 3-22 Project: Sweetwater Authority - Membrane Bioreactor Feasibility Study Subject: Consulting Services Agreement dated November 2, 2006 Intertie and distribution facility costs shall be distinguished between the Authority and Otay. Subtask 6.2 QUANTIFY METRO COSTS RMC shall determine the penalty costs over a 20 year planning period for the City of Chula Vista. RMC shall determibe.the annual Metro treatment costs over a 20 year period considering flow, TSS, and COD. RMC shall determine the cost differential for treatment at the MBR versus treatment by Metro. Subtask 6.3 PREPARE LIFE-CYCl.E COST ESTIMATE This task shall include: o Calculate for each year, the net ownership costs - capital investment plus annual operating costs plus capital reinvestment minus ancillary benefits (if any) o Discount the net ownership costs to current dollars at a rate approximately equal to the City's borrowing cost, to yield a single net present value of lifecycle ownership costs. o Complete a lifecycle cost estimate that includes capital and O&M costs of the MBR and recycled water conveyance facilities. The life cycle cost shall be estimated over 20 years, including all capital and O&M costs, Metro penalties, costs and avoided costs. o RMC shall identify all potential grants and subsides that could be applied toward this project. Subtask 6.4 ANAL VZE COST SHARES, PRICING This task shall include: o Assist the Authority, Otay, and the City in analyzing lifecycle cost sharing scenarios. o Assist the Authority in identifying the appropriate sales price for recycled water. o Assist the City in determining appropriate wastewater capacity charges. Task 6 Assumotions: o The Metro agreement clearly states the penalties for exceeding capacity. While the Metro agreement does not have a provision for renting capacity, it does not prohibit it. Hence, an agency may be able to rent capacity from either San Diego or another participating agency for a period of time to fill a gap that is not met otherwise. If the agency does not purchase capacity, the City of San Diego has the right and obligation to build capacity for the agency and to charge them for it. o Otay shall provide conveyance facility capital and annual O&M costs for Olay distribution facilities. Task 7 Environmental Subtask 7.1 EVALUATE PERMITTING NEEDS RMC shall define required permits, and the appropriate environmental process for building an MBR for each alternative. . Subtask 7.2 BASIN PLAN OBJECTIVES RMC shall evaluate Basu1'Plan obj ectives for areas where recycled water shall be used, and speci.lically address regulatory issues as they relate to the use of recycled water in these areas. Task 7 Assumctions: o RMC shall provide the agency name, contact number, permit title, when the process should be applied for, and the timeline to receive the permit. 11/2/2006 A-6 Exhibit A - Scope of Wor\< 3-23 Project; Sweetwater Authority - Membrane Bloreactor Feasibility Study Subject: Consul~ng Services Agreement dated November 2, 2006 Task 8 Meetings RMC shall be responsible for preparation, attendance and recording of meeting proceedings (via meeting minutes) of the following meetings: . One kickoff meeting with the Agencies to review the existing reports and data being provided to RMC, and to disCuss siting issues . One workshop focusing on MER op~tion and costs . One workshop focusing on ecanomics . One meeting to review the drat!; report Task 8 AssumDtions: . Authority shall assist RMC is coordinating meetings (e.g. distributing agenda and providing meeting location). RMC shall prepare meeting agendas. Task 9 Deliverables RMC shall be responsible fur submitting the following deliverables: Subtask 9.1 REpORTS . Outline of the proposed report . Draft report . Final report (including copies of a1l calculations, cost estimates and backup material) Subtask 9.2 IMPLEMENTATION SCHEDULE . Schedule for project implementation (mcluding preliminary and finaJ design, environmental activities, construction, and start-up) Subtask 9.3 MONTHLY PROGRESS REPORTS, MEETING MINUTES, ETC. . Monthly progress reports (including one-page bullet item SIlIIlIIIary of activities initiated on-going, and/or completed during the period) . Meeting minutes for meetings listed in Task 8 Task 10 Project Management RMC shall be responsible for managing the overall Project to completion. The purpose of this task is to establish and maintain effective project management and communicaJion for the Project for a period of up to six months (not including cO"sultant review time) from the receipt of the Notice to Proceed. RMC shall provide quality control review for project deliverables consistent with RMC standard Quality Assurance/Quality Review. procedures. Task 10 AssumDtions: . The six month project completion time does not include three weeks for agency reviews of each of the draft and finaJ report. Exhibit A - Scope of Wori< 11/2/2006 A-7 3-24 RMC Exhibit B Fee Estimate Sweetwater Authority MBR Feasibility Study 1. The Individual hDIJrly rates include salary, overhead. pIOfit. and ordinary apenses,lncluding teIecommunlcatioos. eomputer usage, and regutar reproducllon Jobs.. 2006 billing rates are shown. Consultants reserve the right to adJust Its hourly rate structure at the beginning of the calendar year for all ongoing conb'aotS. RMC will pJOVidlit advance notice 0( any rate changes affecting current contracts. Any adjustmenls in bllRng rat. ;w not anticipated 10 Incm1S8 the ovsrall project cost 2. Other diract costs (OCDs) Include large reprodudlon jobs, mneage, and travel expernlElS, and wiD be charged adUaI cost plus 1Q%. Subconsullanls will be billed at actual cost plU9 10%. . '., C:\OQcuments and Settings\trichardson\Local Settlngs\Temparary Internet Files\0LK244\Exhibit B Fee Estimate 3-25 Exhibit C Schedule The schedule shall be as set forth in Exhibit A - Scope of Work , .. Exhibit C - Schedule 11/2/2006 C-l 3-26 ;.; . , ; ~ ~ ~ ~ Eo- <. ~ ~ m ; 5 m it '" "0 " Iii ~ :ii 1ii .. 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" .. 0 E"O Z e ... o ~ " ~ 0- ~zg WeDS "002 (I) c g !~.E a~ -g;: "u ll-:;; wa: 3-27 iii I ., illi ....-1 ..., ! , "'I i ,i , I , I El9-1 ~I "', "', t'o-; ~1 I ",i , ~I ~J vi , I ",I , Ol ... cd '" '" -<i' ~ '" s OG C S "0 " " g .5 ]j o I- 1!!1 'N !:;}I I I IMl , 1 1 I I i~ IN I"" i~ "l> IN i i f'64 10 '0 100' i II~ ! , i I.,. .-"I-i 1 l~ , '... , !ID :cn iN , ~ I~ i I i ill I ~1 N. r.ri! I "'I ",. "', cO~ N' N, ,,;! I . , to9-j ic:a l"4; iN ;~ ,'" I,,; iN I , I", I 8 g ., ,,; ~ ., ... l::i '" .; e - '" '" .... o o N ,,; E:- !:'l ~ '" If ! "0 ... ~ " " 'g .5 CD ~ C - e ~ o .1 o Z Z ;;: :;; w a: !z ::l o ~ ... ~ a: ... z o u RESOLUTION NO. 2007- RESOLUTION AUTHORIZING THE APPROPRIATION OF $70,000 FROM THE AVAILABLE BALANCE OF THE TRUNK SEWER CAPITAL RESERVE FUND TO PROJECT NO. SW249 FOR THE PREPARATION OF A JOINT FEASIBILITY STUDY FOR THE CONSTRUCTION OF A WASTEWATER RECLAMATION PLANT WHEREAS, the City prepared a Wastewater Master Plan Update concurrently with the General Plan Update to quantify the amount of sewage that would be generated by the City at build out under any of the land use scenarios evaluated as part of the General Plan Update; and WHEREAS, staff estimates that the City will require an additional five to six million gallons per day of sewage treatment capacity to sustain the City at build out; and WHEREAS, one of several options being pursued to address this need for additional treatment capacity is the construction of an independent City-owned wastewater reclamation facility; and WHEREAS, the City has partnered with Sweetwater Authority and Otay Water District (together, Agencies) to conduct a joint feasibility study for a wastewater reclamation plant that would serve the needs of the three Agencies; and WHEREAS, the study has gained the support of the San Diego County Water Authority, which has resulted in the award ofa $25,000 grant; and WHEREAS, taking into consideration the award from San Diego County Water Authority, the Agencies have estimated that the study will cost a total of $150,000, which would be shared equally by the three Agencies, with each Agency being obligated to contribute up to $50,000; and WHEREAS, staff estimates that an additional $20,000 is required to fund staffs effort in coordinating with other Agencies' staff and the consultant, to complete the feasibility study; and WHEREAS, the Sweetwater Authority is acting as the lead Agency and has entered into an agreement with RMC Water and Environment to prepare the feasibility study; and WHEREAS, funding the feasibility study is a proper use for the Trunk Sewer Capital Reserve Fund pursuant to Chula Vista Municipal Code section 3.14.010. 3-28 NOW THEREFORE, BE IT RESOLVED by the City Council of the City ofChula Vista that it authorizes the appropriation of $70,000 from the available balance of Trunk Sewer Capital Reserve Funds to Project No. SW249 for the preparation of a joint feasibility study for the construction of a wastewater reclamation plant. Presented by Approved as to form by Scott Tulloch City Engineer '--r-:e...-<'\.. (/2~~ Ann Moore City Attorney H:\ENGINEER\RESOS\Resos2007\04-03-07\Joint-Feasibility-Study revised by ec.doc 3-29 CITY COUNCIL AGENDA STATEMENT ill ~\~CI1YOF . -{ ~"'~ CHULA VISTA 4/3/07, Item-1- ITEM TITLE: RESOLUTION ESTABLISHING CAPITAL IMPROVEMENT PROJECT ENTITLED "CMP STORM DRAIN PIPE REHABILITATION PROGRAM PROJECT, PHASE IV" (DR-169) AND TRANSFERRING EXISTING FUNDS FROM CIP "WESTERN CHULA VISTA INFRASTRUCTURE" (GG-188) TO DR-169 FOR SAID PURPOSE RESOLUTION ACCEPTING BIDS AND AWARDING CONTRACT FOR THE CMP STORM DRAIN PIPE REHABILITATION PROGRAM (DR-169) PROJECT, PHASE IV AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS OPERATIONS TO EXPEND ALL AVAILABLE FUNDS IN THE PROJECT SUBMITTED BY: REVIEWED BY: DIRECTOR OF GENERAL S~CES '0s;'0r-. INTERIM CITY MANAGER (ji 4/STHS VOTE: YES X NO - BACKGROUND As part of an ongoing program to rehabilitate corrugated metal drainage pipe (CMP) throughout the City, staffhas identified a number of storm drain facilities, which are deteriorated and are in need of rehabilitation. CMP Storm Drain Pipe Rehabilitation Program (DR-169) Project, Phase IV will remove and replace those drainage facilities at six locations, which are in need of rehabilitation. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the project qualifies for a Class 1 (c) (Existing Facilities) categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. Thus, no further environmental review is necessary. RECOMMENDATION 1. Council adopt the resolution establishing Capital Improvement Project entitled "eMP Storm Drain Pipe Rehabilitation Program, Phase IV" (DR-169), and transferring existing funds from "CIP Western Chula Vista Infrastructure" (GG-188) to DR-169 for said purpose. 4-1 4/3/07, Item If Page 2 of 4 2. Council adopt the resolution accepting bids and awarding contract for the CMP Storm Drain Pipe Rehabilitation Program (DR-169) Project, Phase IV and authorizing the Director of Public Works Operations to expend all available funds in the project. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION CIP ESTABLISHMENT The City's Corrugated Metal Pipe (CMP) rehabilitation program was budgeted for in the FY 2004/2005 budget process and is part of the Western Chula Vista Infrastructure Financing Program whereby $3,000,000 was designated for CMP RehabilitationlReplacement. Phase I (DR-I64) of the CMP Rehabilitation Program involved the survey by closed-circuit televising (CCTV) of approximately 88,000 lineal feet of the City corrugated metal pipe (CMP) storm drain system. This program allowed the inspections, condition assessment, rehabilitation recommendations, and rehabilitation prioritizing of the City's CMP pipelines. This program allowed City staff to identify several locations that needed immediate attention due to potential for risk of public safety and/or damage to public or private property. Among these locations, Staff is recommending the establishment of a new capital improvement project specific to providing the needed rehabilitation to drain facilities, at six locations, which are now deteriorated. The approval of the resolution will authorize the transfer of existing funds in the amount of $971,406 from CIP GG-188 "Western Chula Vista Infrastructure" to DR-169 (Phase IV) for said purpose. This project will replace approximately 917 linear feet of CMP. The project will rehabilitate six locations of the City's system of corrugated metal storm drain pipes (Attachment 1). The general scope of the project involves the removal and replacement of existing corrugated metal pipe, including all labor, material, equipment, tools, transportation, mobilization, traffic control, removal and disposal of existing improvements, and other work necessary to construct the project in accordance with City standards. BID ACCEPTANCE On March 14, 2007, General Services staff received and opened bids from six (6) contractors as follows: CONTRACTOR BID AMOUNT 1. Palm Engineering Construction - San Diego, CA $446,950.00 2. Tri-Group Construction - Poway, CA $450,722.00 3. New Century Construction -:Lakeside, CA $458,300.00 4. MJC Construction - Bonita, CA $466,928.00 5. Burtech Pipeline, Inc. - Encinitas, CA $595,385.00 6. Ortiz Corporation - Chula Vista, CA $600,000.00 4-2 4/3/07, Item~ Page 3 of 4 The apparent lowest bid by $446,950 is approximately 0.80% above the Engineer's estimate of $443,400. The Engineer's estimate was based on average prices for similar types of work completed during the last two years. References provided by the contractor have been reviewed and their work record found to be satisfactory. The Contractor's license is current. After reviewing the low bid, staff recommends awarding a $446,950 contract to Palm Engineering Construction, Inc., San Diego, California. The apparent second and third lowest bid, by Tri-Group Construction and New Century Construction, are rejected due to the presence of mathematical errors in the bid proposal. Approval of tonight's resolution will authorize City staff to expend all available funds and increase the value of the contract as necessary due to unforeseen circumstances. Unforeseen circumstances may cause an increase in quantities beyond what was anticipated during the preparation of the project specifications. A typical "unforeseen circumstance" situation occurs during the removal of the existing CMP pipe and we may find field conditions different from proposed improvement plans and specifications. As a result, additional material is required to rehabilitate the project site and may lead to a necessary "Change Order" to the contract. This is a typical situation with all CMP rehabilitation projects. According to City Council Policy No. 574-01, if a change order exceeds the cumulative contract change order aggregate amount allowable to be approved by the Director of Public Works Operations, City Council approval is required. However, approval of tonight's resolution will increase the Director of Public Works Operations' authority to approve change orders as necessary up to the total funding available. The Director of Public Works Operations is authorized to expend $34,286.50 for change orders regarding this project. At this time, staff is recommending that the Director of Public Works Operations approval limit be increased beyond the amount permitted by the above referenced council policy for an additional amount of $55,103.50 (Available Contingency $89,390 - $34,286.50). Any savings on the identified costs under Fiscal Impact may potentially increase the approval limit amount as necessary to expend all funds. CONTRACT AMOUNT REVISION The contract documents allow the City to decrease or increase the unit quantity for the rehabilitation of additional pipes without a change in the contract unit price bid by the Contractor. DISCLOSURE STATEMENT Attached is a copy of the contractor's Disclosure Statement (Attachment 2). STAFF COSTS Rehabilitation projects are typically more complicated than new construction because more controlling factors exist. The research is more extensive because little or no information exist on older pipes and surrounding improvements. Right of way and easements determination, location of property lines and access to the project sites become issues that take more time than usual. Many times the pipe to be rehabilitated is under private & public improvements such as landscape & irrigation, fences, retaining walls, concrete pads, steep slopes, utilities and other 4-3 4/3/07, Item~ Page 4 of 4 improvements that require more design time to address all issues specific to the site (see Attachment 3). The total pre-construction staff costs were $325,066. In addition to pre-construction activities, increased staff time is also required to inspect these types of construction projects because of the same issues. $65,000 is estimated for construction inspection, geotechnical investigations and administrative staff. $25,000 is estimated for survey staking and $20,000 for design support during construction. The controlling factors stated above are all within each rehabilitation area and directly affect the staff cost for this project. All these different staff components total $435,066. All funds not used will be returned for use in other locations as necessary. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the property, which are the subject action. FISCAL IMPACT At this time, staff recommends a transfer in the amount of $971,406 to establish capital improvement project DR-169 and provide the necessary funds to complete the project. FUNDS REQUIRED FOR CONSTRUCTION A. Contract Amount $446,950 B. Contingencies (20% of contract) $89,390 C. Staff Time Cost (approx % of total): Planning/Environmentall/Public Work! GIS (2.5%) $10,444 Survey Work (33.5%) $146,756 Design/Project Management (42%) $182,936 Right of Way (4%) $18,029 Construction Inspection (14.5%) $62,928 Geotechnical Report/Soil TestinlZ (3.5%) $13,973 TOTAL $971,406 FUNDS AVAILABLE FOR PROJECT A. Transfer from in GG188 Western Chula Vista Infrastructure Program $971,406 TOTAL $971,406 There is no impact to the General Fund as the funds for these improvements have been provided for as part of the Western Chula Vista Infrastructure Financing Program. Upon completion of the project, the improvements will require only routine City drainage maintenance. ATTACHMENTS Attachment 1 - Table I - Location & sizes of drainage pipe to be replaced Attachment 2 - Contractor Disclosure Statement Attachment 3 - Staff Cost Summary Prepared by: Luis A. Labrada, Associate Civil Engineer, General Services M:\General Services\GS Administration\Council Agenda\DR169 CMP REHAB\DR169rev6.doc 4-4 i!: " z W ..J Iii .<: o "0 <:: '" " 0. .is. 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'" " <:: :;j ... a> '" :;" ~ ~ <:: .!!2 '" 0; .5 "0 <:: '" " u '" C. i!2 "0 <:: '" " 0. ii: 0.. :::; U . <Xl ~ '" <:: ~ .~ " <:: o "0 <:: .lB '" "0 <:: '" " " 0. > .- o 0. EU ,,> 0::0.. 0.. :::; U . <Xl - J!l .in " :::; ~ '" U "0"''' " 0 '" "'- '" 8. E.S o '" ~ a.e-c- (U1i).s~ E eel!:! 0:1:0- .... 0 C (I) ~:s.8g- <0 ~ c:: '5 i l!:! .Q 0 (I) ::J -cOts 1] ill g. 2 0_...._ -I 0 c./n <0 j Z "0 <:: '" - c .. E .. u '" 1i " 0:= " 0. ~ u: ...i ... ~ '" II ~ I- I ~ ~ i ~ ~ -E. i M . ~ ~ ~ e. p'F.A.CHMENT z, City of Chula Vista Disclosure Statement , , Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed, The following information must be disclosed: 1. List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. Po.su~nbrz.i " ...... 2. .-. ..' .-. . If any person. identified pursuant to (I) above is a corporation or partnership, list the nameS 'of all individuals with a $2000 investment in'the business (corporation/partnership) entity. ~\ADr.-+ \TreqS-lI'e'r 'RJ.~ ~ ~'rihfz 1 ..... 3. If any person. identified pursuant to (1) above is a non-profit organization or trust; list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. ~/A- 4. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. ~J.t ~hbL.i 5. Has any person. associated with this contract had any financial dealings with an official.. of the City ofChula Vista as it relates to this contract within the past 12 months? Yes_ NoX- ~/A. 21 C:\Documents and Settings\LuisL\Desktop\DR169\DR 169 con~ocumcnts final.doc If Yes, briefly descnbe the nature of the financial interest the official" may have in this contract. ~ fA-- 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? No ~ Yes _ If yes, which Council member? 7. Have you provided more than $340 (or an item of equivalent value) to an official** of the City of Chula Vista in the past twelve (12) months? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.J.Yes _ Np.~ . . '.. _ ." If Yes, whi~h official** and what was the nature of item provided? ." N/A- Date: \JA'rdr\ \4 ~l f4 .." ..... Signature of Contractor/Applicant ~'tU\ ~n'raz\ Print or type name of Contractor/Applicant * Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. ** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member ofa board, commission, or committee of the City, employee, or staff members. 22 C:\Documents and Settings\LuisLlDesktopIDR169\DR 169 conf1.re11locuments finn1.doc Attachment 3 Service Estimated Cost Survey $121,756 ------------ Design and $162,936 Project Mgmt Location Description 169 & 163 Glenhaven Way Easement and Right-of-Way (ROW) determination difficuit due to scarce property monumentation information, property access difficult due to private fence over existing easement, etc. drainage easements never been field surveyed; shown oniy on maps, project required easements to be located in the ground and depleted on plans. 602 & 608 Carla Avenue Easement and ROW determination difficult due to scarce property monumentation information, property access difficult due to private fence over existing easement, etc. drainage easements never been field surveyed, shown only on maps, project required easements to be located in the ground and depicted on plans. 92 Rivera Place Easement and ROW determination difficult due to scarce property monumentation information, property access difficult, steep slope within project site, project site located in two different subdivisions, survey require more effort easement located within three subdivisions, drainage easements never been field surveyed, shown only on maps, project required easements to be located in the ground. 1561 Ocala Court Easement and ROW determination difficult due to scarce property monumentation information, property access difficult due to private fence over existing easement, heavy brush cover, drainage easements never been field surveyed, shown oniy on maps, project required easements to be located in the ground, steep slope within project site. 46 Minot Avenue Easement and ROW determination difficult due to scarce property monumentation information, property access difficult due to private fence over existing easement, drainage easements never been fieid surveyed, shown only on maps, project required easements to be located in the ground depicted on pians, steep slope within project site. 1073 & 1065 Calle Mesita Easement and ROW determination difficult due to scarce property monumentation information, property access difficult, steep slope within project site, project site located in two different subdivisions, survey require more time to tied down both subdivision, drainage easements never been field surveyed, shown only on maps, project required easements to be located in the ground, heavy brush cover, steep slope within project site. Three preliminary (titie) reports required due to drainage easements. Project located adjacent to City/County Boundary. 169 & 163 Glenhaven Way Field conditions different from old improvement plans. Pipe to be design close to an existing concrete block wall. Pipe to be discharge into an existing concrete line channel. Channel needs repair due to the connection of proposed pipe. 602 & 608 Carla Avenue Existing surface drainage pattern inadequate, design on new curb inlets necessary for installation of propose pipe. Pipe will be place between adjacent properties with fences, and power poles obstruction. 92 Rivera Place Field conditions different from old improvement plans. Existing surface drainage pattern inadequate, portion of poposed drainage pipe will be located on a steep slope. Special . skuctural des ion for modified outlet reouired. Service Estimated Location Description Cost Design and 1561 Ocala Court Field conditions different from old improvement plans. Project Mgmt Portions of drainage pipe will be located on a steep slope. (cont'd) Special structural design for modified outiet required. Special connection require to connect to existing concrete line channel. 46 Minot Avenue Existing surface drainage pattern inadequate, design on new curb inlet necessary for installation of propose pipe. Pipe will be place between adjacent properties with fences. portion of pipe will be located on a steep slope. Special structurai design for modified outiet required. 1073 & 1065 Calle Mesita Field conditions different from old improvement plans. Portions of drainage pipe will be located on a steep slope. Special structural design for modified outlet required. Slope repair required due to illegal discharge from a swimming pool '"construction located downstream of the proiect. $7.928 Various Field design support, construction pians and specification review. Right-of-Way $18,029 Various Three easement acquistions for one construction location. Aoent Geotechnicai $3.973 1073 and 1065 Calle Mesita Geotechnicai engineering report for slope repair study. Study Enoineer not anticioated. Geographic $7,404 Various GIS support during the engineering design phase. Information Systems (GIS) Environmenta $2,535 Various Review of environmental requirements for construction site -- . I locations. Public Works $304 Various Public Works Operations suport during the engineering design phase, review of construction olans. NPDES $200 Various Review of NPDES requirements for construction site locations. Su btotal $325.066 4-9 RESOLUTION NO. 2007-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ESTABLISHING A CAPITAL IMPROVEMENT PROJECT ENTITLED "CMP STORM DRAIN PIPE REHABILITATION PROGRAM PROJECT, PHASE IV" (DR-169) AND TRANSFERRING EXISTING FUNDS FROM CIP "WESTERN CHULA VISTA INFRASTRUCTURE" (GG- 188) TO DR-169 FOR SAID PURPOSE. WHEREAS, as part of an ongoing program to rehabilitate corrugated metal drainage pipe (CMP) throughout the City, staff has identified a number of storm drain facilities, which are deteriorated and are in need of rehabilitation. CMP Storm Drain Pipe Rehabilitation Program Project (DR-169) will remove and replace those drainage facilities at six locations, which are in need of rehabilitation; and WHEREAS, staff is recommending the establishment of a new capital improvement project specific to providing the needed rehabilitation to drain facilities, at three locations which are now deteriorated; and WHEREAS, the general scope of the project involves the removal and replacement of existing corrugated metal pipe, including all labor, material, equipment, tools, transportation, mobilization, traffic control, removal and disposal of existing improvements, and other work necessary to construct the project in accordance with City standards; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the project, DR-169 CMP Rehabilitation Project, qualifies for a Class 2 Categorical Exemption pursuant to Section 15302 (Replacement or Reconstruction) of the State CEQA Guidelines because the new facilities will be reconstructed on the same site as the facilities replaced and will have substantially the same purpose and capacity. Thus, no further environmental review is necessary. WHEREAS, there is no impact on the General Fund as the funds for these improvements have been provided for as part of the Western Chula Vista Infrastructure Financing Program; and WHEREAS, staff recommends the transfer of existing funds in the amount of $971,406 from CIP GG-188 "Western Chula Vista Infrastructure" to DR-169 for said purpose; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby authorize establishing a capital improvement project entitled CMP Storm Drain Pipe Rehabilitation Program Project (DR-169) and transferring existing funds in the amount of $971,406 from CIP "Western Chula Vista Infrastructure" (GG-188) to DR-169 for said purpose. Presented by Approved as to form by Jack Griffm Director of General Services ~~~$\\... Ann Moore City Attorney 4-10 RESOLUTION NO. 2007- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS, AWARDING A CONTRACT FOR THE "CMP STORM DRAIN PIPE REHABILITATION PROGRAM PROJECT, PHASE IV (DR- 169)" PROJECT AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS OPERATIONS TO EXPEND ALL AVAILABLE FUNDS IN THE PROJECT WHEREAS, as part of an ongoing program to rehabilitate corrugated metal drainage pipe (CMP) throughout the City, staff has identified a number of storm drain facilities, which are deteriorated and are in need of rehabilitation. CMP Storm Drain Pipe Rehabilitation Program (DR-169) Project, Phase IV will remove and replace those drainage facilities at six locations, which are in need of rehabilitation; and WHEREAS, on March 14,2007, General Service staff received and opened bids from six contractors as follows: CONTRACTOR BID AMOUNT 1. Palm Engineering Construction - San Diego, CA $446,950.00 2. Tri-Group Construction - Poway, CA $450,722.00 3. New Century Construction - Lakeside, CA $458,300.00 4. MJC Construction - Bonita, CA $466,928.00 5. Burtech Pipeline, Inc. - Encinitas, CA $595,385.00 6. Ortiz Corporation - Chula Vista, CA $600,000.00 ; and WHEREAS, the low bid by Palm Engineering Construction of $446,950 is $3,550.00 (0.8%) above the Engineer's estimate of$ 443,400.00; and WHEREAS, based on average prices for similar types of work completed during the last three years, and upon review, staff recommends awarding the contract in the amount of $446,950.00 to Palm Engineering Construction; and WHEREAS, references provided by the contractor have been reviewed and their work record found to be satisfactory and the Contractor's license is current; and WHEREAS, the apparent second and third lowest bid, by Tri-Group Construction and New Century Construction, are rejected due to the presence of mathematical errors in the bid proposal. 4-11 WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the project qualifies for a Class 1 (c) (Existing Facilities) categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. Thus, no further environmental review is necessary. WHEREAS, there are sufficient funds to fully offset all costs associated with the construction of this project, with no impact to the General Fund. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby award a contract in the amount of $446,950.00 for the construction of the CMP Rehabilitation Program in the City of Chula Vista, California" (DR-169) project to Palm Engineering Construction and authorizing the Director of Public Works Operations to expend all available funds in the project. Presented by Approved as to form by ~"h..~~\l\ Ann Moore City Attorney Jack Griffin Director of General Services 4-12 CITY COUNCIL AGENDA STATEMENT .$-'Yf:. CITY OF - CHULA VISTA 04/03/2007 Item~ ITEM TITLE: RESOLUTION ACCEPTING $65,000 FROM THE OFFICE OF TRAFFIC SAFETY, AMENDING THE FISCAL YEAR 2006/2007 POLICE DEPARTMENT BUDGET FOR THE CLICK IT OR TICKET PROGRAM, AND APPROPRI~? FUNDS THEREFOR. CHIEF OF POLICW' CITY MANAGER 11 SUBMITTED BY: REVIEWED BY: 4/5THS VOTE: YES X NO BACKGROUND None. ENVIRONMENTAL REVIEW Not Applicable. RECOMMENDATION That Council adopts the resolution accepting $65,000 from the Office of Traffic Safety, amending the fiscal year 2006/2007 Police Department personnel services budget for the Click It or Ticket Program, and appropriating funds therefor. BOARDS/COMMISSION RECOMMENDATION Not Applicable. DISCUSSION The Office of Traffic Safety has awarded $65,000 to the Police Department for the Click It or Ticket Program. The goal of the California Click It or Ticket project is to increase seat belt use statewide to 93.7% by July 31, 2007. Through the combined efforts of state and local law enforcement, a seat belt enforcement campaign will be conducted for a twenty-one (21) day period, May 14 - June 3, 2007, in support of the national Click It or Ticket mobilization. Funds provided by this grant will be utilized to increase the level of seat belt enforcement hours on an overtime basis for first line supervisors, officers, and administrative time to meet grant reporting requirements. 5-1 DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section l8704.2(a)(l) is not applicable to this decision. 04/03/2007, Item~ Page 2 of2 FISCAL IMPACT Approval of this resolution will result in a one-time appropriation of $65,000 to the personnel services category of the FY 2006/2007 Police Department budget for overtime hours used to support the Click It or Ticket Program. The funding from the Office of Traffic Safety will fully offset these personnel costs. Therefore, there is no net fiscal impact to the General Fund. ATTACHMENTS None. Prepared by: Jonathan Alegre, Senior Management Analyst, Police Department 5-2 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING $65,000 FROM THE OFFICE OF TRAFFIC SAFETY, AMENDING THE FISCAL YEAR 2006/2007 POLICE DEPARTMENT BUDGET FOR THE CLICK IT OR TICKET PROGRAM, AND APPROPRIATING FUNDS THEREFOR. WHEREAS, the Office of Traffic Safety has awarded $65,000 to the Police Department for the Click It or Ticket Program; and WHEREAS, the goal of the California Click It or Ticket project is to increase seat belt use statewide to 93.7% by July 31,2007; and WHEREAS, through the combined efforts of state and local law enforcement, a seat belt enforcement campaign will be conducted for a twenty- one (21) day period, May 14 - June 3, 2007, in support of the national Click It or Ticket mobilization; and WHEREAS, funds provided by this grant will be utilized to increase the level of seat belt enforcement hours on an overtime basis for first line supervisors, officers, and administrative time to meet grant reporting requirements. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby accept $65,000 from the Office of Traffic Safety, amend the FY 2006/2007 Police Department personnel services budget for the Click It or Ticket Program, and appropriate funds therefor. Presented by: Richard P. Emerson Police Chief 5-3 CITY COUNCIL AGENDA STATEMENT 04/03/2007 Item~ ITEM TITLE: SUBMITTED BY: REVIEWED BY: RESOLUTION TRANSFERRING UNCLAIMED MONIES IN THE AMOUNT OF $87,266 FROM THE CASH BOND DEPOSIT FUND TO THE GENERAL FUND.() - , CHIEF OF POLI~ CITY MANAGER 17 4/5THS VOTE: YES NO X BACKGROUND None. ENVIRONMENTAL REVIEW Not Applicable. RECOMMENDATION That Council adopts the resolution transferring unclaimed monies in the amount of $87,266 from the Cash Bond Deposit Fund to the General Fund. BOARDS/COMMISSION RECOMMENDATION Not Applicable. DISCUSSION The City currently has unclaimed monies in the Cash Bond Deposit Fund. Monies deposited into the Cash Bond Deposit Fund primarily include cash confiscated during arrests that has remained unclaimed. This money was deposited by the Police Department in accordance with Article 3, Section 50050 of the Government Code. According to Government Code provisions, money that remains unclaimed for three years may become the property of the City after certain advertising requirements are met. Government Code Section 50052 provides that if no claim is made for the monies after proper notification as required by Government Code section 50050, the unclaimed money may become the property of the City on a designated date not less than 45 days nor more than 60 days after the first publication of the notice. The City gave public notice of the 6-1 04/03/2007, Item~ Page 2 of2 unclaimed monies in the Star News on February 16 and 23, 2007. The amount of $87,266 is now eligible for transfer to the General Fund. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently the 500 foot rule found in California Code of Regulations section l8704.2(a)(1) is not applicable to this decision. FISCAL IMPACT Approval of this resolution will result in the transfer of $87,266 to the General Fund. This transfer is already included in the FY 2006/2007 budget. Therefore, there is no net fiscal impact to the General Fund. ATTACHMENTS Star News Proof of Publication. Prepared by: Jonathan Alegre, Senior Management Analyst, Police Department 6-2 PROOF OF PUBLICATION (2015.5 C.C.P) STATE OF CALIFORNIA, County of San Diego: I am a citizen of the United States and a resident of the county aforesaid; I am over the age of eighteen years, and not a party to or interested in the above-entitled matter. I am the principle clerk of the printer of THE STAR-NEWS, a newspaper of general circulation, published ONCE WEEKLY in the city of CHULA VISTA and the South Bay Judicial District, County of San Diego, which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of San Diego, State of California, under the date of January 18, 1973, Case Number 71752; that the notice, of which the annexed is a printed copy (set in type not smaller than non- pareil), has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to-wit: 2/16, 2/23 all in the year 2007. I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated at Chula Vista, California 91910 this 23rd day of February 2007. Si90"",'~ PRINel :6. " LERK This space is for the County Clerk's filing stamp. Proof of Publication of CV26942 Unclaimed Monies PUBLIC NOlllff In accordance with Article 3, Section' 50050 of the State 01 CaI~omiaGoverriment Code, the City ,01 Chula Vista is gMng notice olunciaimed mooies that remain in the treasury lor a period greater than three years. il after this notification no ,verified compiaint has been filed to recover the monies, ~ shall become the property 01 the City of Chula Vista on a designated date not less than forty-five (45)'days nor more than sixty (60) days after the first publication oI,thnotice. After the monies-become the property of the City, the legislative bodY may mmsfer ~ to,th,e, Geneml Fund. All ~Or~j~:,?ri~~n~fr:::1~e~~; ~~~5~~~~ Depos~ Fund. ,All :Iaims should be dlrect- DATE;>::DESC~IPilOK< ' , . RECElmUMBER AMOUNT 07130103", CRIMElAB 04-0054063 i 16.35 08113103, CRIME LAB " ,,'04-0054395 12,,560:29 08113103-( -CRIME ~"", :, ..... 04'0054396' , 4,025.56 10106103 P[}~ Found Property 03-18793 ' 04-0055467 'I - 370:00 10108103<,: PO _ Found' Case 10318261 04:0055517 '. 19,000.00' 10108103 :,. :PO..FoundCase#0318261,< 04-005551840,160.00 10108103' '-PO-'Found Propet!Y.03-18783'.04-o055531 .. 1"1,'000.00 10108103,': -PO -'Found Prope{iy'p3,18783 ,,04-0055532 " 1,000.00, 10/16103 ", PO -'Found. Property 03-18783' 04-0055669 136.00 ' 10117/03' ',' PO ~ Found Propirty 03-18783 04-0055702 610.00 '10123103'" PO~Found Property 03-18783 ~-o055785" I 110'piT 10131/03 ,PO-FoundProperty03-18783, 0,\:0055916" 870.00 12103103': PO-Found Case #03-23265 .. 04-0056'578 " 1,000,00 12103103' "-PD'-Found Case #03-23265 04-0056'57!f' , ,.'520.00 12/10103 'PO ~ Found Case (no number given) 04'0056743 ~ ~887.40 CV~~~42 ,,"6,23107 6-3 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA TRANSFERRING UNCLAIMED MONIES IN THE AMOUNT OF $87,266 FROM THE CASH BOND DEPOSIT FUND TO THE GENERAL FUND. WHEREAS, the City currently has monies in the Cash Bond Deposit Fund, which primarily include cash confiscated during arrests that has remained unclaimed; and WHEREAS, these monies were deposited by the Police Department in accordance with Article 3, Section 50050 of the Government Code; and WHEREAS, according to Government Code provisions, money that remains unclaimed for three years may become the property of the City after certain advertising requirements are met; and WHEREAS, Government Code Section 50052 provides that if no claim is made for the monies after proper notification as required by Government Code section 50050, the unclaimed money may become the property of the City on a designated date not less than 45 days nor more than 60 days after the first publication of the notice; and WHEREAS, the City gave public notice of the unclaimed monies in the Star News on February 16 and 23,2007, and WHEREAS, the amount of $87,266 in unclaimed monies is now eligible for transfer to the General Fund. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the transfer of unclaimed monies in the amount of $87,266 from the Cash Bond Deposit Fund to the General Fund. Presented by: Approved as to form"by: Richard P. Emerson Police Chief 6-4 CITY COUNCIL AGENDA STATEMENT ~\'f:.. CITYOf J~CHUlA VISTA APRIL 3, 2007, Item '7J ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CONSENTING TO THE TRANSFER OF THE TERESINA APARTMENTS PROJECT FROM EAGLE LOMAS VERDES, L.P. TO EQUITY RESIDENTIAL AND AU1HORIZING THE CITY MANAGER TO EXECUTE ALL RELATED DOCUMENTS NECESSARY IN THE TRANSFER ~ ACTING COMMUNITY DETPMENT DIRECTO~ \ INTERIM CITY MANAGER (// SUBMITTED BY: REVIEWED BY: . 4/5THS VOTE: YES D NO ~ BACKGROUND In 1998, the City issued Multifamily Housing Revenue Bonds in total aggregate principal amount of $43,000,000 to finance a 440-urut multifamily housing project known as Teresina Apartments located at the southwest corner of East Palomar Street and La Media Road The project is currently owned by Eagle Lomas Verdes L.P., a Delaware limited partnership (the "Owner"). The existing Owner wants to sell the project and transfer all obligations under the bonds to Equity Residential. At this time, the City Council is asked to approve a resolution consenting to the transfer of the project and authorizing the City Manager to execute all related documents necessary in the transfer. 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 defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA Thus, no further environmental review is necessary. RECOMMENDATION Adopt a resolution consenting to the transfer of the Teresina Apartment project and authorizing the City Manager to execute all related documents necessary in the transfer. 7-1 APRIL 3, 2007, Item~ Page 2 of2 BOARDS/COMMISSION RECOMMENDATION Not Applicable DISCUSSION On November 10, 1998 the City Council of the City of Chula Vista approved Resolution 19255 authorizing the issuance, sale and delivery of multifamily mortgage revenue bonds for the Teresina Apartments in a combined principal amount not to exceed $43,000,000. The project was completed in 2000 and sold to Eagle Real Estate Group, LLC in late 2002. As a condition of the tax exempt bonds, the Borrower has entered into a Regulatory Agreement restricting 20% of the units (88) at affordable rental rates for very low income households for a period of fifty-five (55) years. The project has a stabilized occupancy rate and is in compliance with the terms of the Regulatory Agreement. The existing Owner wants to sell the project and transfer all obligations under the bonds to Equity Residential. To implement the Owner's request, the City is being asked to consent to the transfer, and execute an Assignment and Assumption Agreement (Attachment 1) which transfers all of the obligations unde{ the bond agreements to the buyer. All terms and conditions remain the same. Equity Residential owns and operates over 165,000 apartments in a diverse portfolio nationwide, with 27,277 units in California. Of these units, they own and operate over 12,000 units nationally that are financed with tax-exempt bond debt, for a total bond liability of over $625 million. They have a compliance consultant to monitor their tax-exempt properties and assist in the compliance of the income and rent restrictions dictated in their Regulatory Agreements. Equity Residential is an S&P 500 company and carries an A-/Baal investment grade credit rating. DECISION MAKER CONFLICT 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 the subject of this action. FISCAL IMPACT Bond financing is a self-supporting program with the owner responsible for the payment of all costs of issuance and other costs and repayment of the bonds. The bonds are secured by the project and do not constitute a liability to or obligation of the City. Staff costs associated with monitoring compliance of the regulatory restrictions and administration of the outstanding bonds will be reimbursed from an annual administrative fee of $20,000 paid to the City by the Owner. ATTACHMENTS Assignment and Assumption Agreement Prepared by: Amanda Mills, Hausing Manager, Community Development Deparlment 7-2 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 4 ~-aJ~PA L/u-N Ann Mo City Attorney Dated: ,':::/,fl 0, /0'7 , , Assignment and Assumption Agreement Relating to Teresina at Lomas Verdes Apartment between Eagle Lomas Verdes L.P., EQR- Teresina Limited Partnership the City ofChula Vista and U.S. Bank National Association 7-3 157004v3 I WHEN RECORDED, MAIL TO: Stradling, Y occa, Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660 Attn: Robert J. Whelan, Esq. ASSIGNMENT AND ASSUMPTION AGREEMENT RELATING TO TERESINA AT LOMAS VERDES APARTMENTS THIS ASSIGNMENT AND ASSUMPTION AGREEMENT RELATING TO TERESINA at LOMAS VERDES APARTMENTS (this "Assumption Agreement") is made and entered into as of April_, 2007, by and among EAGLE LOMAS VERDES L.P., a Delaware limited partnership (the "Transferor") EQR-TERESINA LIMITED PARTNERSHIP, a Delaware limited partnership (the "Transferee"), the CITY OF CHULA VISTA, CALIFORNIA (the "Issuer"), and U. S. BANK NATIONAL ASSOCIATION, as trustee (the "Trustee") under the Indenture (as such term is hereinafter defined). RECITALS I I I I WHEREAS, Transferor owns that certain real property situated in Chula Vista, San Diego County, California, as more particularly described in Exhibit A attached hereto, and the multifamily rental housing development, including all structures, buildings, fixtures and improvements, situated thereon (the "Project"); WHEREAS, the Project was financed with the proceeds of the Issuer's $37,940,000 Variable Rate Demand Multifamily Housing Refunding Revenue Bonds (Teresina Apartments), Series 2006A (the "Bonds") issued under the terms of that certain Trust Indenture, dated as of April 1 , 2006, between the Issuer and the Trustee (the "Indenture"); WHEREAS, the Issuer used the proceeds of the Bonds to make a loan (the "Loan") to the Transferor pursuant to and in accordance with the provisions of the documents listed on Exhibit A hereto (collectively, the "Assumed Documents"): WHEREAS, all capitalized terms used herein not otherwise defined herein shall have the meaning attributed to such terms in the Assumed Documents, as the context may require; WHEREAS, the Transferor desires to convey and transfer, and the Transferee desires to acquire the rights, title and interest of the Transferor in and to the Project, which transfer and conveyance under the Assumed Documents also requires the consent of the Issuer and the Trustee; 7-4 PH/316157104v3312212007 WHEREAS, the Project may be transferred upon the satisfaction of the conditions set forth in the Assumed Documents, including, in particular, in Section 10 of the Regulatory Agreement, which includes, among other conditions, that the Transferee assume in writing and in full all of the obligations of the Transferor arising on and after the Effective Date (as hereinafter defined) under the Regulatory Agreement and the Financing Agreement; WHEREAS, the Transferee is willing to undertake, agree to and assume such obligations and all of the Owner's obligations under the Assumed Documents on and after the Effective Date; WHEREAS, in order to evidence the undertaking of, agreement to and assumption by the Transferee of the Loan and the rights, duties and obligations of the Transferor under the Assumed Documents, the Issuer, the Trustee, the Transferor and the Transferee have agreed to enter into this Assumption Agreement. NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Transferee, the Trustee, the Issuer and the Transferor agree as follows; SECTION 1. ASSIGNMENT AND ASSUMPTION OF OBLIGATIONS. Effective as of the date of the recording of this Assumption Agreement (the "Effective Date"), the Transferor hereby fully and unconditionally assigns from and after the Effective Date to the Transferee all of its rights, title and interest in and under each of the Assumed Documents, including, without limitation, all rights of the Transferor in amounts held by the Trustee in the funds and accounts established pursuant to the Indenture and the Assumed Documents, and delegates to the Transferee all of its duties and obligations under each of the Assumed Documents. The Transferee hereby accepts such assignment and, from and following the Effective Date, hereby fully and unconditionally assumes in full all of the duties and obligations of the Transferor arising after the Effective Date in and under each of the Assumed Documents and undertakes and agrees to perform each and every duty and obligation of "Owner" "Borrower," or "Debtor" (as those terms are defmed in the applicable Assumed Documents), as applicable, under the Assumed Documents. As of the Effective Date, the Issuer and the Trustee hereby fully and unconditionally release Transferor from any and all obligations, duties or liabilities under the Assumed Documents or any other documents to which the Transferor is a party with respect to the Bonds, except for any liabilities or obligations relating to matters arising prior to or on the Effective Date, even if notice of such obligation is received after the Effective Date. The Transferee hereby represents and warrants that the performance of the Transferee's obligations under the Program Documents and compliance with the terms thereof will not result in a breach of any of the terms and provisions of, or constitute a default under, any contract, lease, indenture, deposit agreement, mortgage, deed of trust or other agreement to which the Transferee is a party of by which it is bound. The Transferee acknowledges that is has received and reviewed copies of all of the Program Documents, that it understands the provisions, contents and effect thereof, and agrees to perform all obligations of the Owner under the Program Documents arising from and after the Effective Date. PH/316157104v33/22/2007 7-5 I SECTION 2. REPRESENTATIONS OF TRANSFEROR. The Transferor represents to the Issuer, the Trustee and the Transferee that, as of the date hereof, after reasonable inquiry, (i) the Transferor and the Project are in compliance in all material respects with all requirements of the Assumed Documents, (ii) no transfer of federal tax ownership of the Project has occurred during the six months immediately preceding the Effective Date, (iii) the representations and warranties of the Transferor set forth in the Assumed Documents are true and correct in all material respects as of the date hereof; (iv) there are no defaults by the Transferor under the Assumed Documents and, to the Transferor's knowledge, no event has occurred and is continuing which, with the giving of notice or passage of time, or both, would constitute an event of default or default under the Program Documents with respect to any of the Transferor's obligations; (v) the Assumed Documents are in full force and effect; (vi) there are no liens of any kind encumbering the Property other than the Regulatory Agreement, the Mortgage and other Permitted Encumbrances (as hereinafter defined); (vii) there are no mechanics' liens or liens for unpaid taxes or assessments encumbering the Property. I I I . I I I SECTION 3. ADDITIONAL TAX COVENANTS OF TRANSFEREE. The Transferee hereby covenants that so long as any of the Bonds remains outstanding and remain convertible to tax-exempt, (a) neither it nor any party related to it will pennit any of the obligations of the Transferee relating to the Bonds (including the obligations of the Transferee under any. agreement relating to credit enhancement or liquidity support for the Bonds), to be secured directly or indirectly by any interest in property that constitutes investment property under and within the meaning of Section 148 of the Internal Revenue Code of 1986, the yield on which exceeds the yield on the Bonds as such yield is computed in accordance with applicable federal tax law, and (b) it will comply with the terms and requirements of the Tax Certificate. SECTION 4. ACKNOWLEDGMENT. CONSENT AND REPRESENTATIONS OF TRUSTEE. U.S. Bank, National Association, as Trustee under the Assumed Documents (the "Trustee"), hereby acknowledges the acquisition by the Transferee of Teresina Apartments from the Transferor and acknowledges, consents and represents as follows, assuming due authorization, execution and delivery of this Assumption Agreement by the parties hereto:: (i) acknowledges that the Transferee has assumed the rights and obligations of the Transferor pursuant to the Assumed Documents; (ii) that all notices which absent such assumption and acquisition would have been sent to the Transferor, shall from and after the date of this Assumption Agreement be delivered to Transferee at the address set forth in Section 5 of this Assumption Agreement; (iii) the Transferor is hereby released from obligations under the Assumed Documents arising after the date hereof; (iv) to the knowledge of the Trustee the Assumed Documents are in full force and effect and there has been no amendment, modification, supplement, modification or assignment of the Assumed Documents of any kind except as listed on Exhibit A; 7-6 PHI 316157104v3 3/2212007 (v) All amounts payable to the Trustee under the Assumed Documents have been paid in full through the date hereof; (vi) To the knowledge of the Trustee the Transferor is not in default under the Assumed Documents and has not breached the Assumed Documents in the performance of any covenant or obligation thereunder, the Trustee has not given any notice to the Transferor of any default under the Assumed Documents which has not been cured, and no circumstance presently exists which, with the giving of notice or the passage of time or both, would give rise to a default by the Transferor under the Assumed Documents. (vii) The person executing this Assumption Agreement on behalf of the Trustee is duly authorized and empowered in all respects to do so on behalf of the Trustee, and the foregoing may be relied upon by the Transferee and its successors and assigns. SECTION 5. ACKNOWLEDGMENT. CONSENT AND REPRESENTATIONS OF THE ISSUER. City of Chula Vista, as Issuer (the "Issuer") hereby consents to the acquisition by the Transferee of the Teresina Apartments from the Transferor and hereby acknowledges, consents and certifies as follows, assuming due authorization, execution and delivery of this Assumption Agreement by the parties hereto: (i) that all notices which absent such assumption and acquisition would have been sent to the Transferor, should hence forth be delivered to Transferee at the address set forth in Section 5 of the Agreement; (ii) the Transferor is hereby released from obligations under the Assumed Documents arising after the date hereof (iii) To their knowledge, there has been no amendment, modification, supplement, modification or assignment of the Assumed Documents of any kind except as listed on Exhibit A. (iv) All amounts payable to the Issuer under the Assumed Documents have been paid in full through the date hereof. (v) To their knowledge, the Transferor is not in default under the Assumed Documents and has not breached the Assumed Documents in the performance of any covenant or obligation thereunder, the Issuer has not given any notice to the Transferor of any default under the Assumed Documents which has not been cured, and no circumstance presently exists which, with the giving of notice or the passage of time or both, would give rise to a default by the Transferor under the Assumed Documents. (vi) The person executing this Assumption Agreement is duly authorized and empowered in all respects to do so on behalf of the Issuer. 7-7 PH/316157104v33/2212007 I . . SECTION 4. MISCELLANEOUS. I A. Lien Priority. It is expressly understood by and among all parties hereto that the Mortgage is now and shall continue to be a first lien upon the Project (subject to the Regulatory Agreement), and that nothing done or said in this Assumption Agreement shall be construed as waiving, discharging, or as limiting or affecting in any manner, the lien of the Mortgage on the Project, nor shall this Assumption Agreement be construed as subordinating said lien to any other lien(s) or encumbrance(s) that may now or hereafter exist. I I B. Effectiveness of Transfer. The transfer and conveyance of the Project from the Transferor to the Transferee shall be effective upon the recordation of this Assumption Agreement, fully executed and delivered by the parties hereto. Delivery to the Issuer and the Trustee of (i) an opinion of counsel to the Transferee to the effect that the Transferee has duly assumed the obligations of the Transferor under the Assumed Documents and that such obligations are valid and binding on the Transferee, and (ii) of an opinion of Bond Counsel to the effect that such transfer will not adversely affect the tax-exempt status of interest on the Bonds and all other conditions our consent to the transfer of the Project are hereby acknowledged as satisfied by the Issuer and the Trustee and the Issuer hereby authorizes the Trustee to enter into this Assumption Agreement. C. Payment of Costs: Deliverv of Documents. The Transferee agrees to pay the Issuer's and the Trustee's costs to effectuate the transfer of the Project to Transferee, including, but not limited to, recording fees, transfer taxes, escrow fees, Bond Counsel and other attorney's fees, expenses and disbursements incurred by the Issuer and the Trustee relating to this Assumption Agreement or incurred in connection with the assumption by the Transferee of the obligations under the Assumed Documents. The Transferee, at its expense, shall promptly provide the Transferor and the Trustee with a complete transcript of the documents relating to the transfer to, assignment to and assumption of the Loan by the Transferee. D. Notices to the Transferee. All notices to be given to the Transferee, as Owner under and pursuant to the Assumed Documents, shall be addressed as follows: EQR-Teresina Limited Partnership c/o Equity Residential Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 Attention: General Counsel E. Construction. This Assumption Agreement and all related documents shall be governed by and construed in accordance with the laws of the State of California. F. Execution in Counterparts. This Assumption Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. G. No Further Modifications. All terms and conditions of the Program Documents not expressly modified by this Assumption Agreement are expressly reaffirmed as if set forth in 7-8 PH/316157104v33/22/2007 their entirety herein and shall remain unaffected, unchanged and unimpaired by reason of this Assumption Agreement. Signatures on following pages - PH/316157104v3312212007 7-9 I i I I TIDS ASSUMPTION AGREEMENT is executed by the parties hereto on the date first written above. I I I TRANSFEROR: EAGLE LOMAS VERDES, L.P., a Delaware limited partnership By: Casa Major, Inc., a California nonprofit public benefit corporation Its: Managing General Partner I I . I I I . i By: Robert E. Graham Its: President By: Eagle Real Estate Group, LLC, a California limited liability company Its: Co-General Partner By: Eagle Real Estate Management Group, LLC, a California limited liability company Its: Managing Member By: Its: Manager [ADD NOTARIES FOR ALL] 7-10 PH/316157104v33/2212007 TRANSFEREE: EQR-Teresina Limited Partnership, a Delaware limited partnership By: HEARTHSTONE HOUSING FOUNDATION, a California non-profit corporation By: Name: Title: By: ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership, a general partner By: EQUITY RESIDENTIAL, a Maryland real estate investment trust Its: Sole General Partner By: Mark J. Purrell Its: First Vice President, Capital Markets and Treasurer 7-11 PHI 316157104v3 3/2212007 . I I i I I I I I I ISSUER: CITY OF CHULA VISTA, CALIFORNIA, as Issuer By: Its: I I I I i I I . I I . I . I I I I i ii . i . . ii ! 7-12 PH/316157104v33/2212007 TRUSTEE: U. S. BANK NATIONAL ASSOCIATION, as Trustee By: Its: 7-13 PH/316157104v33/2212007 I I I . . . ACKNOWLEDGMENT AND CONSENT OF CREDIT ENHANCER Federal National Mortgage Association, as Credit Enhancer (the "Credit Enhancer") hereby consents to the acquisition by EQR- Teresina Limited Partnership ("Purchaser") of the Teresina Apartments from the Seller, pursuant to that certain Assignment and Assumption Agreement by and between the Seller and Purchaser dated April-, 2007. FEDERAL NATIONAL MORTGAGE ASSOCIATION, as Credit Enhancer By: Name: Title: I I I ;; ; !! 7-14 PHI 316157104v3 3/2212007 ACKNOWLEDGMENT AND CONSENT OF REMARKETING AGENT Citigroup Global Markets Inc., as Remarketing Agent hereby acknowledges and consents to the Assumption of the Remarketing Agreement pursuant to that certain Assignment and Assumption Agreement by and between the Seller and Purchaser dated April_, 2007. CITIGROUP GLOBAL MARKETS INC., as Remarketing Agent By: Name: Title: PHI 316157104v3 3/2212007 7-15 EXHffiIT A LIST OF ASSUMED DOCUMENTS 1) Amended and Restated Regulatory Agreement and Declaration of Restrictive Covenants, dated as of April 1, 2006 among the Issuer, the Trustee and the Transferor (the "Regulatory Agreement"), recorded in the Official Records of San Diego County, California (the "Official Records"), on April 27, 2006, as Document No. 53010448-413; 2) Financing Agreement, dated as of April 1, 2006, among the Issuer, the Trustee and the Transferor, relating to the Bonds (the "Financing Agreement"); 3) Owner's Tax Certificate, dated April 27, 2006, executed by the Issuer and the Borrower (as supplemented and amended, the "Tax Certificate"); 4) Multifamily Note (the "Note") dated as of April 7, 2006 from Transferor to the Issuer. 5) Multifamily Deed of Trust, Assignment of Rents and Security Agreement executed by the Transferor for the benefit of the Issuer 6) Remarketing Agreement dated as of April I, 2006 between Transferor and Citigroup Global Markets Inc. (f/kJa/ Newman and Associates). 7-16 PHI 316157104v3 3/22/2007 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CONSENTING TO THE TRANSFER OF THE TERESINA APARTMENTS PROJECT FROM EAGLE LOMAS VERDES, L.P. TO EQUITY RESIDENTIAL AND AUTHORIZING THE CITY MANAGER TO EXECUTE ALL RELATED DOCUMENTS NECESSARY IN THE TRANSFER WHEREAS, the City of Chula Vista California (the "City") has previously issued its $37,940,000 aggregate principal amount Variable Rate Demand Multifamily Housing Refunding Revenue Bonds (Teresina Apartments), Series 2006A (the "Bonds") to refmance the acquisition and construction of a multifamily residential rental project known as "Teresina Apartments" (the "Project"); and WHEREAS, in connection with such financing, the City and U.S. Bank National Association, as trustee (the "Trustee"), entered into that certain Trust Indenture, dated as of April 1, 2006 (the "Indenture"); and WHEREAS, in connection with the issuance of the Bonds, the City, the Trustee and Eagle Lomas Verdes, L.P., a Delaware limited partnership (the "Owner") have executed and delivered that certain Amended and Restated Regulatory Agreement and Declaration of Restrictive Covenants dated as of April I ,2006 (the "Regulatory Agreement") with respect to the Project; and WHEREAS, the Owner desires to sell the Project to EQR-Teresina Limited Partnership, a Delaware limited partnership (the "New Owner"); and WHEREAS, the Owner desires to assign the obligations of the Owner under the Regulatory Agreement and other Bond Documents (as defmed in the Indenture) to which the Owner is a party for the period from and after the New Owner's acquisition of the Project, and the New Owner desires to assume the obligations of the Owner under the Regulatory Agreement and other Bond Documents (as defmed in the Indenture) to which the Owner is a party for the period from and after the New Owner's acquisition of the Project, pursuant to that certain Assignment and Assumption Agreement, by and among the Owner, New Owner, the Trustee and the City, dated as of April 1, 2007 (the "Assignment and Assumption Agreement"); and WHEREAS, the form of an Assignment and Assumption Agreement has been submitted to the City for approval; and WHEREAS, the City desires to consent to the transfer of the Project and the assumption of the Regulatory Agreement by the New Owner; and WHEREAS, capitalized terms not otherwise defined herein shall have the meaning set forth in the Indenture. 1 7-17 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City as follows: Section I. The above recitals, and each of them, are true and correct. Section 2. The City hereby consents to the transfer of the Project to the New Owner. Section 3. The proposed form of Assignment and Assumption Agreement presented at this meeting is hereby approved as the form of Assignment and Assumption Agreement. Each of the Mayor, City Manager, Deputy City Manger, Finance Director and Clerk of the City, or the designee of any of them, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Assignment and Assumption Agreement in substantially the form presented, with such additions thereto or changes therein as are recommended or approved by the City Manager, City Attorney or Bond Counsel and approved by the officer or officers executing the same. The approval of such officer or officers shall be evidenced conclusively by the execution and delivery of the Assignment and Assumption Agreement. Section 4. All actions heretofore taken by the officers and agents of the City with respect to the Assignment and Assumption Agreement are hereby approved, confirmed and ratified. Upon approval of the City Attorney and Bond Counsel, the proper officers of the City are hereby authorized and directed, for and in the name and on behalf of the City, to do any and all things and take any and all actions and execute and deliver any and all certificates, agreements and other documents, including, but not limited to, those described in the Indenture and the Assignment and Assumption Agreement herein approved which they, or any of them, may deem necessary or advisable in order to consummate the lawful execution and delivery of the Assignment and Assumption Agreement in accordance with this Resolution. The Mayor, City Manager, Deputy City Manager, Finance Director and Clerk of the City are hereby authorized and directed to execute and deliver from time to time any certificates, statements, requests, notices or orders as are required with respect to certain discretionary actions that may be taken by the City under the Assignment and Assumption Agreement in order to carry out the execution and delivery of the Assignment and Assumption Agreement. Section 5. This Resolution shall take effect immediately upon its adoption. Presented by Approved as to form by Ann Hix, Acting Community Development Director ~.~ ... {dL /J1P..--1 fk.d-/ Moore, City Atto . J:\COMMDEV\RESOS\2007\04-03-07\TERESINA TRANSFER 2 7-18 CITY COUNCIL AGENDA STATEMENT ~f:. CITY OF -- - - CHULA VISTA 4/3/07, ItemL ITEM TITLE: RESOLUTION REJECTING THE FIRST AND SECOND BIDS AND ACCEPTING AND AWARDING THE CONTRACT FOR THE "OTAY PARK IMPROVEMENTS PROJECT" (PR-284) TO THIRD LOWEST BIDDER, LANDMARK SITE CONTRACTORS AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS OPERATIONS TO EXPEND ALL AVAILABLE CONTINGENCIES IN THE PROJECT RESOLUTION AUTHORIZING AN INTER-PROJECT TRANSFER FROM THE "WESTERN CHULA VISTA FINANCING PROJECT" (GG-188) TO THE "OTAY PARK IMPROVEMENTS PROJECT" (PR-284) AS NECESSARY TO COMPLETE THE PROJECT SUBMITTED BY: REVIEWED BY: DIRECTOR OF GENERAL S~ICES ~, INTERIM CITY MANAGER ;/ 4/5THS VOTE: YES X NO BACKGROUND On March 16, 2007, the Director of General Services received sealed bids for the "Otay Park Improv=ents (PR-284)"project. This project represents the CIP PR-284 fimded through the Western Chula Vista Loan. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has conducted an Initial Study (IS-94-2l) in accordance with the California Environmental Quality Act. Based upon the results of the Initial Study, the Environmental Review Coordinator has determined that there is no substantial evidence, in light of the whole record before the City of Chula Vista, that the project may have a significant effect on the environment; therefore, the Environmental Review Coordinator has prepared a Negative Declaration for the Otay Park Renovation Master Plan. The plans for the improvements contemplated by this contract are consistent with the approved master plan. 8-1 4/3/07, Item~ Page 2 of 4 RECOMMENDATION 1. Council adopt the resolution rej ecting the first and second bids and accepting and awarding the contract for the "Otay Park hnprovements Project" (PR-284) to third lowest bidder, Landmark Site Contractors and authorizing the Director of Public Works Operations to expend all available contingencies in the project. 2. Council adopt the resolution authorizing an inter-project transfer from the "Western Chula Vista Financing Project" (GG-188) to the "Otay Park hnprovements Project" (pR- 284) as necessary to complete the project. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION On March 16, 2007, the Director of General Services received sealed bids for the "Otay Park hnprovement (PR-284)" project. The work consists of constructing a practice softball field with multipurpose field overlay, improving site drainage including a portion located in an easement over school property, providing picnic areas, a performance area, new walks, lighting, planting and irrigation. Plans & specifications were prepared by consultant Cvaldo Corporation, and the project was advertised. The City received bids from ten (10) contractors as follows: CONTRACTOR BID 1. Marcon Engineering Inc. - Escondido, CA $1,422,687.71 2. HTA Engineering - Poway, CA $1,448,311.22 3. Landmark Site Contractors - Perris, CA $1,579,659.34 4. Heffler Company - National City, CA $1,595,068.15 5. 3D Enterprises - San Diego, CA $1,596,010.80 6. LB Civil Engineers - San Diego, CA $1,628,660.73 7. MJC Construction - Bonita, CA $1,725,567.87 8. HAR Construction Inc. - Chula Vista, CA $ 1,792,586.18 9. Tri-Group - Poway, CA $2,020,116.00 10. Badii Enterprises - San Diego, CA $2,292,922.64 The apparent lowest bid, by Marcon Engineering Inc, IS rejected due to the presence of mathematical errors in the bid proposal. 8-2 4/3/07, Item~ Page 3 of 4 The second apparent lowest bid, by HTA Engineering, is also rejected due to the presence of mathematical errors in the bid proposal. The City has consistently rejected bids with mathematical errors in the past and the rejection of these bids conforms with past practices. The third apparent lowest bid by Landmark Site Contractors, $1,579,659.34, is above the Engineer's estimate of$I,544,614 by $35,045.3 or 2.268%. Staff has reviewed this bid, taken up references on the contractor and recommends awarding the contract to Landmark Site Contractors, for $1,579,659.34. Attachment I shows the overall site layout of the proposed improvements. Tonight's resolution authorizes the expenditure of the available contingencies for the project. According to City Council Policy No. 574-01, if a change order exceeds the cumulative contract change order aggregate amount allowable to be approved by the Director of Public Works Operations, City Council approval is required. However, approval of tonight's resolution will increase the Director of Public Works Operations authority to approve change orders as necessary up to the total contingency amount. The Director of Public Works Operations is authorized to expend $101,982.97 for change orders regarding this project. At this time, staff is recommending that the Director of Public Works Operations approval limit be increased beyond the amount permitted by the above referenced council policy for an additional amount of $1,071.70 (Available Contingency $103,054.67 less $101,982.97). This will expend all available contingencies. Disclosure Statement Attachment 2 is a copy of the contractor's Disclosure Statement. Wage Statement The source of funding for this project is the Western Chula Vista Loan. This project is not a prevaiiing wage contract. Interoroi ect Transfer At this time, staff is recommending an inter-project transfer from existing CIP GG188 "Western Chula Vista Financing" in the amount of $164,020 to PR284 as necessary to complete the project. The funds being transferred were initially intended to fund a portion of the Women's Club Renovation, which is currently being delayed due to unanticipated cost escalations for this project. In addition, the Department is embarking on a Citywide building maintenance and repair program in which the Women's Club will be included for further evaluation. Once the Women's Club Renovation project is ready to move forward, staff will return to Council for funding. DECISION MAKER CONFLICT 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. I 8-3 4/3/07, Item-A- Page 4 of 4 FISCAL IMPACT FUNDS REQUIRED FOR CONSTRUCTION A. Contract Amount (3'" lowest bid.) $1,579,659.34 B. Park Design Costs 142,639.49 C. Construction Support Design Consultant 16,786.50 D. Staff Costs 68,880.00 E. Soils/materials testing 15,000.00 F. Contingencies 103,054.67 TOTAL FUNDS REQUIRED FOR CONSTRUCTION $1,926,020.00 FUNDS AVAILABLE FOR CONSTRUCTION A. Existing Funds, CIP PR284 (Western CV Financing) $1,762,000.00 B. lnterproject Transfer from CIP GG188 (Western CV Financing) 164,020.00 TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $1,926,020.00 The project funds are sufficient to fully offset all costs associated with the construction of this project, with no impact to the General Fund. Since these improvements are to an existing park completion of the work will not increase the acreage of parkland to be maintained by the City of Chula Vista. ATTACHMENTS 1 - Park Layout Plan 2 - Contractor's Disclosure Statement Prepared by: Mary Radley, Landscape Architect, General Services Department M:\General Services\GS Administration\Council Agenda\Otay Park Improvements FY06\PR284 Otay Park Impvts-REV.doc 8-4 ..1'iTi,\'-'. ,]T I . . III , ~ r t~~ I!! -~, i [, , U__ ) t- IEl c j) \ ~ ALBANY AVENUE r I E I I L_-----.J [ I[ I I I[ :l Ie :[ o . I j I ~[ 1\1 , l j\ ,\ , ' i '\ ,~,. I ( I \ I +--~d--+---~~ "\'" \ I~;, i , \ . . "'-,,>---- j I -, j i i '.~ ! 1 "" ! i " , I i '-l-~~"-.- " i ! I I i , . [ '---1 ! ,L It ~J ~ri_ ~d~ . - . I rl- ...1, ]'1 "I I JI l! ~ "t +- 8 G) ~ . i ! i . . I I .' j: . " ii i; _----, I ~ ~d \ \9l l . ca......A.."... P.A. R..II< REDEVELOPMENT PLAN :=:'..- ATTP,CHMENT 2- City of Chula Vista Disclosure Statement Pursuant to Council Policy 101-01, prior to any action upon matters that will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or fmancial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: 1. List the names of all persons having a fmancial interest in the property that. is the subject of the application or tb,e contract, e.g.,-owner, applicant, contractor, subcontractor, material supplier. N ot;'iE J' 2. If any person" identified pursuant to (1) above is a: corporation or partnership, list the names of all individuals with a $2000 investment in the business (corporation/partnership) entity. N/A,-.. 3. If any person" identified pursuant to (1) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the tJ'llSt. ~h I I I I I I ii . . i ; ! . . I I I . II - . 4. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. _ '\~iA 5. Has any person" associated with this contract had any fmancial dealings with an official"" of the City ofChula Vista as it relates to this contract within the past 12 months? Yes_No~ . ""'. 17 C:\DIH':UJ!Wnts i1lld ::)C!tlllgS',S:(.,iu(.:\L0Ci.11 S,:nings'..,'i".:mplJrar:, lr&-"'l"Iiit ~: ik",()j Y,F\Pi!l'l 11. i,le If Yes, briefly describe the nature of the fmancial interest the official" may have in this contract. 6. Have you' made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? No x: Yes _ If yes, which Council member? 7. Have you provided more than $340 (or an item of equivalent value) to an official"" of the City of Chula Vista in the past twelve (12) months?7s includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No If Yes, which official"' and what was the nature of item provided? Date:~l"'l ) 0 I I ~ \&:\ -I}. P. Signilture of Contractor! Applic~t, WIl..I..I"'-M t>" ~........(..\ _ voc...E,.... ~ L~t::.M.~~,T""Lf o~ Print or type name of Contractor! Applicant . Person is defmed as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other" political subdivision, -or any other group or combination acting as a unit. "" Official includes, but is not limited to: Mayor, Council member, PlaIining Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. 18 C:\DocurtJents and St:tt1ng:>\SijviaC\J ,ueal Setting:-;\Tcmporury 8J.iKi1et j-';'iles\OLKhr'art ! 1.duc RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA REJECTING THE FIRST AND SECOND LOW BIDS AND ACCEPTING AND AWARDING THE CONTRACT FOR THE "OTAY PARK IMPROVEMENTS PROJECT" (PR- 284) TO THIRD LOWEST BIDDER, LANDMARK. SITE CONTRACTORS AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS OPERATIONS TO EXPEND ALL AVAILABLE CONTINGENCIES IN THE PROJECT WHEREAS, on March 16, 2007, the Director of General Services received sealed bids for the "Otay Park Improvements Project" PR-284 which includes the construction of a practice softball field with multipurpose field overlay, improving site drainage including a portion located in an easement over school property, providing picnic areas, a performance area, new walks, lighting, planting and irrigation. WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has conducted an Initial Study (IS-94-21) in accordance with the California Environmental Quality Act. Based upon the results of the Initial Study, the Environmental Review Coordinator has determined there is no substantial evidence, in light of the whole record before the City of Chula Vista, that the project may have a significant effect on the environment; therefore, the Environmental Review Coordinator has prepared a Negative Declaration for the Otay Park Renovation Master Plan. WHEREAS, the City received sealed bids from ten (10) contractors as follows: CONTRACTOR BID I. Marcon Engineering Inc. - Escondido, CA $1,422,687.71 2. HTA Engineering - Powav, CA $1,448,311.22 3. Landmark Site Contractors - Perris, CA $1,579,659.34 4. Heffier Company - National City, CA $1,595,068.15 5. 3D Enterprises - San Diego, CA $1,596,010.80 6. LB Civil Engineers - San Diego, CA $1,628,660.73 7. MJC Construction - Bonita, CA $1,725,567.87 8. HAR Construction Inc - Chula Vista, CA $ 1,792,586.18 9. Tri-Group - Powav, CA $2,020,116.00 10. Badii Enterprises, Inc. - San Diego, CA. $2,292,922.64 WHEREAS, the lowest bid, by Marcon Engineering Inc, was rejected due to the presence of mathematical errors in the bid proposal; and . I . . i WHEREAS, the second lowest bid, by HTA Engineering, was also rejected due to the presence of mathematical errors in the bid proposal; and WHEREAS, it is recommended that the contract be awarded to the third lowest bidder, Landmark Site Contractors, for $1,579,659.34; and 8-8 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista rejects the fIrst and second low bids and accept and award the contract for the "Otay Park Improvements Project" (PR-284) to third lowest bidder, Landmark Site Contractors and authorizes the Director of Public Works Operations to expend all available contingencies in the project. Presented by Approved as to form by ~~~~\'\f~~ Ann Moore City Attorney Jack Griffin Director of General Services 8-9 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AN INTER-PROJECT TRANSFER FROM THE "WESTERN CHULA VISTA FINANCING PROJECT" (GG-188) TO THE "OTAY PARK IMPROVEMENTS PROJECT" (PR-284) AS NECESSARY TO COMPLETE THE PROJECT WHEREAS, on March 16, 2007, the Director of General Services received sealed bids for the "Otay Park Improvements Project" PR-284 which includes the construction of a practice softball field with multipurpose field overlay, improving site drainage including a portion located in an easement over school property, providing picnic areas, a performance area, new walks, lighting, planting and irrigation; and WHEREAS, it is recommended to award the contract to the third lowest bid, Landmark Site Contractors, for $1,579,659.34; and WHEREAS, it is recommended that an inter-project transfer be made from existing CIP GGI88 "Western Chula Vista Financing" in the amount of $164,020 to PR-284 as necessary to complete the project; and. WHEREAS, the funds being transferred were initially intended to fund a portion of the Women's Club Renovation, which is currently being delayed due to unanticipated cost escalations for that project; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista authorize an inter-project transfer from the "Western Chula Vista Financing Project" (GG- 188) to the "Otay Park Improvements Project" (PR-284) as necessary to complete the project. Presented by Approved as to form by ~\lovS\~ Ann Moore City Attorney Jack Griffin Director of General Services 8-10 ~V?- :-~~ --=------ - - Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO ellY OF CHUlA VISTA March 28, 2007 TO: Lorraine Bennett, Deputy City Clerk FROM: Jennifer Quijano, Constituent Services Manager RE: Veterans Advisor Commission Mayor Cox would like to recommend Terry Jensen for appointment to the Veterans Advisory Commission. Terry Jensen will replace Sherry Strothers who recently resigned, Please place on the April 3, 2007 Council agenda for ratification. Thank you. CC: Mayor Cox 3pi!/07- fY/1". ,4 -5/2.-"25/01 - 0;( e3.,A:)# :JC.t1J./1W1 c:k:r 1)01 cttne'/Py eAw'a ~:r;-o/ ~/ct't "r. .s-el-'o.Je 'lO 'J N ..-ti:u.....: r::o c-W 0 C> ~c: >'"- W E: <(<S> > ....Jon CXl :=>" uJ N :c~ U ~ 0"" u.......J W <DlW> 0:: ,...,:>- .....,.,.... .... a0 10 A 1.