HomeMy WebLinkAboutAgenda Packet 2000/05/16 CITY COUNCIL AGENDA
May 16, 2000 ~r 6:00 p.m.
Council Chambers
Public Services Building
276 Fourth Avenue, Chula Vista
CI'IY OF
CHULA VISTA
City Council City Manager
Patty Davis David D. Rowlands, Jr.
John S. Moot City Attorney
Stephen C. Padilla John M. Kaheny
Mary Salas City Clerk
Shirley A. Horton, Mayor Susan Bigelow
The City Council meets regularly on the first calendar Tuesday at 4:00 p.m.
and on the second, third and fourth calendar Tuesdays at 6:00 p.m.
Regular meetings may be viewed at 7:00 p.m. on Wednesdays on
Cox Cable Channel 24 or Chula Vista Cable Channel 47
AGENDA
6:00 P.M.
MAY 16, 2000
CALL TO ORDER
ROLL CALL: Councilmcmbers Davis, Moot, Padilla, Salas, and Mayor Horton.
PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE
SPECIAL ORDERS OF THE DAY
· PRESENTATION OF A PROCLAMATION PROCLAIMING THE WEEK OF
MAY 14 THROUGH MAY 16, 2000 AS PEACE OFFICERS MEMORIAL DAY -
ACCEPTED BY POLICE CHIEF RICK EMERSON
· PRESENTATION OF A PROCLAMATION PROCLAIMING THE WEEK OF
MAY 21 THROUGH MAY 27, 2000 AS PUBLIC WORKS WEEK - ACCEPTED BY
JOHN LIPPITT, DIRECTOR OF PUBLIC WORKS
· PRESENTATION ON STATE AND LOCAL FISCAL REFORM BY KEN
FABRICATORE, SENIOR ECONOMIST, SANDAG
CONSENT CALENDAR
(Items 1 through 8)
The staff recommendations regarding the following items listed under the Consent
Calendar will be enacted by the Council by one motion, without discussion, unless
a Councilmember, a member of the public, or City staff requests that the item be
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
after Action Items. Items pulled by the public will be the first items of business.
1. WRITTEN COMMUNICATIONS
A. Letter from the City Attorney stating that to the best of his knowledge from
observance of actions taken in Closed Session on May 9, 2000, there were no
actions taken which are required under the Brown Act to be reported.
Staff recommendation: The letter be received and filed.
2. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING AN AGREEMENT WITH BERRYMAN & HENIGAR FOR
APPORTIONMENT SERVICES FOR FISCAL YEARS 2000-2001 THROUGH 2002-
2003 FOR CITY ASSESSMENT DISTRICTS, AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT AND AUTHORIZING AN EXPENDITURE OF A
MAXIMUM OF $150,000 FOR THIS PURPOSE
05/16/2000
Page 1 - Council Agenda
The purpose of the proposed agreement is to retain the servcies of Berryman & Henigar to
perform the respreading of assessments on existing City assessment districts and prepare
the Annual Collection Report to be submitted to the County for inclusion in the property
tax bill. The agreement is for a term of three years. The current agreement with
Berryman & Henigar for performing these servcies, which was for a term of five years,
expires this year. This action will ensure that the City's fiduciary responsibility to the
bond holders is fulfilled by providing required apportionment and collection services as
delineated in the Streets and Highways Code. (Director of Public Works)
Staff recommendation: Council adopt the resolution and authorize the expenditure of
funds from assessment district fees for the payment of these services.
3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
REJECTING BIDS FOR THE "INSTALLATION OF INTERNALLY ILLUMINATED
STREET NAME SIGNS AT VARIOUS LOCATIONS IN THE CITY OF CHULA
VISTA" PROJECT (CIP TF-279)
On April 19, 2000, the Director of Public Works received sealed bids from two electrical
contractors for the "Installation of Internally Illuminated Street Name Signs at various
locations in the City of Chula Vista" project (CIP TF-279). After reviewing the bids,
staff recommends, in the best interest of the City, they be rejected. City staff will re-
advertise the project for bids on May 20, 2000. (Director of Public Works)
Staff recommendation: Council adopt the resolution.
4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE TRANSFER OF FUNDS FROM LIBRARY AND RECREATION
SUPPLIES AND SERVICES ACCOUNTS TO THE CAPITAL EQUIPMENT
ACCOUNT FOR THE PURCHASE OF EQUIPMENT IN THE PARKS AND
RECREATION OPERATING BUDGET (4/5THS VOTE REQUIRED)
The City's budget transfer policy calls for Council's approval to transfer more than
$15,000 between budget summary accounts, such as between Supplies and Services and
Capital Equipment. The Parks and Recreation Department has two equipment items that
have been approved by the City Manager for purchase this fiscal year. However, the
dollar amount for these items exceeds the $15,000 limit. (Deputy City Manager Palmer)
Staff recommendation: Council adopt the resolution.
5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING THE FISCAL YEAR 1999-2000 BUDGET FOR THE L1BRARY AND
RECREATION DEPARTMENT BY APPROPRIATING $10,000 IN
UNANTICIPATED REVENUE AND AUTHORIZING AN AGREEMENT BETWEEN
THE CITY AND THE YMCA FOR THE CITY TO RETAIN SPECIALIZED
INDEPENDENT CONTRACTORS TO PROVIDE EXTENDED AFTER-SCHOOL
PROGRAMS (4/5THS VOTE REQUIRED)
05/16/2000
Page 2 - Council Agenda
The YMCA Youth and Family Services has awarded the City, through its Library and
Recreation Department, a $10,000 contract for the provision of enhanced after-school
programming at Castle Park Middle School and Hilltop Middle School. The funding is
part of a grant applied for and received by the Chula Vista Youth Coalition from the
County of San Diego Critical Hours funding. The YMCA is the designated fiscal agent
for the grant, and as such, is subcontracting various services to be provided by several
Youth Coalition members. (Deputy City Manager Palmer)
Staff recommendation: Council adopt the resolution and authorize the Deputy City
Manager, on behalf of the City, to enter into a subcontract with the YMCA for the
provision of specified services.
6 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AUTHORIZING A LEASE BETWEEN THE CITY OF CHULA VISTA AND THE
BOYS & GIRLS CLUB OF CHULA VISTA FOR USE OF LAUDERBACH
COMMUNITY CENTER
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY
OF CHULA VISTA AND THE SWEETWATER UNION HIGH SCHOOL DISTRICT
FOR USE OF THE COMMUNITY YOUTH CENTER
The City and the Boys and Girls Club of Chula Vista have negotiated an agreement to
lease the Lauderbach Community Center to the Club for a period of eighteen years with
provision for two five-year renewals. As a result, the Recreation Division will move its
programs to the Community Youth Center on L Street and enter into a new Memorandum
of Understanding with Sweetwater Union High School District for continued joint use of
the facility. (Deputy City Manager Palmer)
Staff recommendation: Council adopt the resolutions.
7 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A REIMBURSEMENT AGREEMENT WITH ACI SUNBOW, LLC,
ASSOCIATED WITH THE FORMATION OF COMMUNITY FACILITIES DISTRICT
NO. 2000-1 (SUNBOW II) AND AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENT
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
WAIVING THE CONSULTANT SELECTION PROCESS AS IMPRACTICAL,
APPROVING AGREEMENTS WITH BRUCE W. HULL & ASSOCIATES TO
PROVIDE APPRAISAL SERVICES AND THE MEYERS GROUP TO pREpARE A
MARKET ABSORPTION STUDY ASSOCIATED WITH COMMUNITY FACILITIES
DISTRICT NO. 2000-1 (SUNBOW II) AND AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID AGREEMENTS (CONTINUED FROM THE MEETING OF
MAY 9, 2000)
05/16/2000
Page 3 - Council Agenda
In compliance with Council policy, ACI Sunbow, LLC submitted an application for
establishing Community Facilities District No. 2000-1 (CFD 2000-1) to fund the
construction of certain improvements serving some of the Sunbow II properties in the
amount of approximately $19.5 million. Council approved the report regarding the
application and initiated the proceedings on May 2, 2000. Adoption of the resolutions
will approve a Reimbursement Agreement with the developer and two agreements to
retain a portion of the financing team for CFD 2000-1. The companion Reimbursement
Agreement requires the developer to advance funds to the City for the payment of all
initial consulting and administration costs and expenses related to the formation of CFD
2000-1. (Director o f Public Works)
Staff recommendation: Council adopt the resolutions.
8. RESOLUTION WA1V1NG THE CONSULTANT SELECTION PROCESS AS
IMPRACTICAL, APPROVING AN AGREEMENT WITH MCGILL MARTIN SELF,
INC. AS PROJECT MANAGER AND SPECIAL TAX CONSULTANT, AMENDING
AGREEMENT WITH BROWN, DIVEN, HESSELL & BREWER, LLP AS BOND
COUNSEL, AMENDING AGREEMENT WITH FIELDMAN, ROLAPP &
ASSOCIATES AS FINANCIAL ADVISOR, AND AMENDING AGREEMENT WITH
STONE & YOUNGBERG, LLC AS UNDERWRITER ASSOCIATED WITH
COMMUNITY FACILITIES DISTRICT NO. 2000-1 (SUNBOW II) AND
AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT AND
AMENDMENTS
In compliance with Council policy, ACI Sunbow, LLC submitted an application for
establishing Community Facilities District No. 2000-1 (CFD 2000-1) to fund the
construction of certain improvements serving some of the Sunbow II properties in the
amount of approximately $19.5 million. Council approved the report regarding the
application and initiated the proceedings on May 2, 2000. In another item on this agenda
(which was continued from the meeting of May 9, 2000), Council is requested to approve
a Reimbursement Agreement with the developer and agreements with an appraiser and
market absorption consultant. Adoption of this resolution will approve the rest of the
financing team for CFD 2000-1. The Reimbursement Agreement requires the developer
to advance funds to the City for the payment of all initial consulting and administration
costs and expenses related to the formation of CFD 2000-1. (Director of Public Works)
Staff recommendation: Council adopt the resolution.
ORAL COMMUNICATIONS
Persons spea~'ng during Oral Communications may address the Council on any
subject matter within the Council's jurisdiction that is not listed as an item on the
agenda. State law generally prohibits the Council from taking action on any
issue not included on the agenda, but, if appropriate, the Council may schedule
the topic for future discussion or refer the matter to staff Comments are limited
to three minutes.
Page 4 - Council Agenda 05/16/2000
PUBLIC HEARINGS AND RELATED RESOLUTIONS AND ORDINANCES
The following items have been advertised and/or posted as public hearings as
required by law. 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.
9. CONSIDERATION OF CONFIRMING ASSESSMENTS FOR ASSESSMENT
DISTRICT 96-01 FOR IMPROVEMENTS TO TWIN OAKS AVENUE FROM
NAPLES STREET TO EMERSON STREET IN THE CITY OF CHULA VISTA
On January 20, 1998, pursuant to the Improvement Act of 1911, also known as the 1911
Block Act, Council awarded a contract in the amount of $179,755 to ABC Construction
Company for Twin Oaks Avenue improvements from Naples Street to Emerson Street.
The work has been completed and improvements have been accepted by the City
Manager. On April 18, 2000, Resolution 2000-117 was adopted, accepting the filing of
the Engineer's Report on the cost of construction, appropriating $24,851 from
Transportation partnership Funds and setting the public hearing on the assessments.
Resolution 2000-118 was also adopted, approving the deferral of liens and establishing
deferral criteria. (Director of Public Works)
Staff recommendation: Council conduct the public hearing and adopt the following
resolutions:
A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
CONFIRMING THE ENGINEER'S REPORT BY THE CITY ENGINEER ON
THE COST OF CONSTRUCTION AND SPREAD OF ASSESSMENTS FOR
ASSESSMENT DISTRICT 96-01
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ADOPTING A NOTICE OF LIEN TO LEVY AND COLLECT ASSESSMENTS
FOR ASSESSMENT DISTRICT 96-01
ITEMS PULLED FROM THE CONSENT CALENDAR
OTHER BUSINESS
10. CITY MANAGER'S REPORTS
A. Scheduling of meetings.
11. MAYOR'S REPORTS
12. COUNCIL COMMENTS
A. Councilmember Davis: Report on support funding for Southwestern College.
05/16/2000
Page 5 - Council Agenda
CLOSED SESSION
l 3. CONFERENCE WITH LEGAL COUNSEL REGARDING ANTICIPATED
LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(B)
· One Case - Claim no. 99-00-009
14. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE
TO LITIGATION pURSUANT TO GOVERNMENT CODE SECTION 54956.9(B)
· One Case
15. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION
PURSUANT TO GOVERNMENT CODE SECTION 54956.9(A)
· Brentwood Mobilehome Park v. City of Chula Vista, S26517
ADJOURNMENT to the Regular Meeting of May 23, 2000, at 6:00 p.m. in the Council
Chambers.
Page 6 - Council Agenda 05/16/2000
CI'IY OF
CHULA VISTA
OFFICE OF THE CITY ATTORNEY
Date: May 10, 2000
To: The Honorable Mayor and City Council
From: John M. Kaheny, City Attorney ~
Re: Report Regarding Actions Taken in Closed Session
for the Meeting of 5/9/00
The Redevelopment Agency of the City of Chula Vista met in Closed
Session on 5/9/00 to discuss:
· CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION
PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a):
Agency vs. Shinohara (Case No. GIS002460)
The city Attorney hereby reports to the best of his knowledge from observance of
actions taken in the Closed Session in which the city Attorney participated, that
there were no reportable actions which are required under the Brown Actto be
reported.
JMK:lgk
276 FOURTH AVENUE · CHULA VISTA · CALIFORNIA 91910 · (619) 691-5037 · FAX {619) 409-5823
COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 5/16/00
ITEM TITLE: Resolution Approving an agreement with Berryman & Henigar for
apportionment services for Fiscal Years 2000-2001 through 2002-2003 for
City Assessment Districts, authorizing the Mayor to execute said agreement
and authorizing an expenditure of a maximum of $150,000 for this purpose
SUBMITTED BY: Director of Public Works~ ~ Director of Finance
REVIEWED BY: City Manager A~xu' (4/5ths Vote: Yes_No__X)
The purpose of the proposed agreement is to retain the services of Berryman & Henigar to perform
the respreading of assessments on existing City's assessment districts and prepare the "Annual
Collection Report" to be submitted to the County for inclusion in the property tax bill. The
agreement is for a term of three (3) years. The current agreement with Berryman & Henigar for
performing these services, which was for a term of five (5) years, expires this year. This action will
ensure that the City's fiduciary responsibility to the bond holders is fulfilled by providing required
apportionment and collection services as delineated in the Streets and Highways Code.
RECOMMENDATION: That Council approve the resolution authorizing the execution of the
agreement with Ben, man & Henigar and authorize the expenditure of funds from assessment district
fees for the payment of these services.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
During the last two decades, the City has formed thirteen (I 3) assessment districts under the Mu-
nicipal Improvement Act of 1913 to provide financing for the construction of public infrastructure
for new developments through the issuance of assessment district bonds (see Attachment A). The
repayment of the bonds is made from assessment installments collected from the property owners
in conjunction with their property taxes. During buildout, the original assessments placed on the
properties within the district need to be respread annually to include new parcels and reflect any
changes to existing parcels. In addition, an annual assessment collection report must be prepared
and provided to the County for inclusion in the property tax bill. During the last five years, the City
retained the firm Berryman & Henigar to perform these activities. The contract with Berryman &
Henigar expires this year; therefore, in accordance with City policy, staff requested proposals from
qualified firms to perform these activities. Staff received five (5) proposals.
The bonds that were used to finance the construction of improvements were issued pursuant to the
Improvement Bond Act of 1915. The repayment of these bonds is typically made from assessment
installments collected from the property owners with their property tax bill over a period of twenty
to twenty-five years. In addition to the principal and interest, Section 8730 of the Streets and
Page 2, Item
Meeting Date 5/16/00
Highways Code allows the collection of an "annual administrative fee" (currently $16/parcel
maximum) from every parcel within an assessment district to cover the cost of the administration
of the district.
In addition to the annual administration fee, developers are required to deposit with the City an
"apportionment fee" (currently $25/parcel) before approval of a map creating new pamels or any
other approval changing the configuration of a parcel of land subject to an assessment.
Tonight's action authorizes the consultant to perform apportionment services for the City for Tax
Years 2000-2001 through 2002-2003 as delineated in Section 8730 of the Streets and Highways
Code. The Code states that when a parcel of land upon which there is an unpaid assessment divides,
the original assessment must be segregated and apportioned in accordance with the benefits to the
several pieces of the original lot. The consultant will do specific filings with the County, prepare
annual reports, assessment diagrams, annual collections, tapes, spreadsheets and notify bond holders
and underwriters of the apportionments. The annual collection report shall be submitted to the
County Auditor-Controller before August 10 of each year for inclusion in the property tax bill.
Consultant Selection Process
Staffreviewed the methods of accomplishing the work, including performing the activities in-house
and using a consultant. Based upon past experience and research, we have found that the City does
not have the staff, nor the expertise to undertake these duties entirely. These activities are
concentrated during the period of May to July every year. During this time, staff must also carry out
the time-consuming activities of preparing the annual collection report for the open space districts.
It would not be cost-effective to hire and train additional personnel to handle this peak in the
workload. Having a consultant performing these apportionment and collection activities will allow
the City to meet its covenants in a timely and efficient manner.
Public Works/Engineering Division staff followed Section 2.56.110 of the Municipal Code in the
consultant selection process. A Request For Proposal (RFP) was prepared and sent to twelve firms
with expertise in this area, accompanied by a copy of the City's standard two-party agreement.
Additionally, a notice was published in the Chula Vista Star-News.
The RFP included a description of the scope of work and the time frames for completion. Each firm
was asked to provide: 1) a statement on their general familiarity with assessment districts, especially
the Improvement Bond Act of 1915; 2) capacity, resources, and specialized equipment or expertise
to perform the work; 3) names and qualifications of all key personnel to be used in the project,
including any sub-consultants; 4) past record of performance and references, 5) the location of the
office where the work is to be performed; and 6) a cost estimate.
The following five firms responded to the RFP:
Page 3, Item
Meeting Date 5/16/00
Consultant I Location
Berryman & Henigar San Diego
McGill Martin Self, Inc. Chula Vista
MuniFinancial/A Willdan Company Temecula
NBS Government Finance Group Temecula
Special District Financin~ & Administration Escondido
The selection committee was approved by the City Manager in accordance with the Municipal Code
Section 2.56 and consisted of the following members:
Elizabeth Chopp, Civil Engineer
Tom Magness, Engineering Technician II
Frank Rivera, Senior Civil Engineer
The committee members were provided with individual copies of the proposals. All five firms were
invited to participate in the interview process and all five accepted. On April 11, 2000, the selection
committee interviewed the five firms. These firms were ranked in accordance with the following
criteria:
1. Qualifications of personnel (20 points)
2. Resources available to perform tasks on time and within budget (20 points)
3. Firm experience directly related to contract (20 points)
4. Quality of presentation (15 points)
5. Response to interview questions (25 points)
6. Total cost and justification (30 points)
The total of 130 points per committee member was multiplied by three committee members to give
the total number of points given each consultant firm.
Ranking Firm Number of Points Cost Estimate
1 Berryman & Henigar 382 $34,222.00
2 MuniFinancial 366 $33,447.00
3 NBS 354 $35,759.00
4 SDFA 314 $45,608.00
5 McGill Martin Self 275 $48,124.55
Page 4, Item
Meeting Date 5/16/00
All three members of the selection committee felt that Berryman & Henigar, holder of the present
contract, was the best choice for the new contract based on general strength in all areas including
project team and area knowledge, current experience handling the present contract, quality of work
performed under the existing contract and cost estimate. Although the estimated annual cost for
Berryman & Henigar was not the lowest of the proposing firms, it had the second lowest estimated
cost (only $775 or 2.6% above the lowest), and its overall experience, qualifications and quality of
presentation was best, in the opinion of the selection committee. It is important to note that the
annual cost cannot accurately be determined since it is not possible to accurately predict the number
of new parcels created each tax year. City staff estimated the annual costs based on the number of
parcels currently billed and the number of new parcels created between July 1997 and December
1999.
The Agreement
The proposed agreement with Berryman & Henigar uses the City's standard two-party agreement.
Under this contract, they agree to perform the scope of work for a three (3) year term as outlined in
Exhibit A of the agreement. This section is extremely precise in order to insure that all of the City
requirements are included in the fee. The compensation schedule for Berryman & Henigar is as
follows:
· Apportionment Services - Consisting of the segregation of the original assessment and
apportioning the original assessment among new parcels. Consultant shall be paid $18 per
parcel. These services will be paid from the "apportionment deposit" ($25/parcel) placed by
the developer before approval of a map creating new parcels or any other approval changing
the configuration of any existing parcel.
· Annual Collection Services - Consisting of the preparation and submittal of the tax roll to
the County. Consultant shall be paid $0.80/parcel (Spreadsheet Updating) + $0.30/parcel
(Electronic Tape Preparation) identified in the Annual Collection Report. These services are
being paid through the "annual administrative fee" ($16.00/parcel maximum) charged
against each parcel on its tax bill to provide for the cost of administering each district. This
fee is based on both consultant and staff costs incurred.
· Additional Services - In addition to providing the previous defined services, the contract
authorizes the City Engineer to approve additional unforeseen services in an amount not to
exceed $10,000 per year.
FISCAL IMPACT: It is recommended that Council authorize a maximum of $150,000 for the total
three-year term of the contract. Although this is higher than the anticipated cost, ifa large number
of new parcels are formed out of existing assessment districts, additional services for apportionment
and monitoring would be required. Costs would also increase if new assessment districts are created
during the term of the contract. As mentioned above, the cost of the services will be covered by the
apportionment deposits collected from developers and the administrative fees collected on all parcels
Page 5, Item
Meeting Date 5/16/00
by the City. The cost of the services for future years will mainly depend on the number of new
parcels in the districts.
Attachment A - Current Assessment Districts Within the City of Chula Vista
H:LHOME\ENGINEERXAGENDA\BERRYMAN.EMC
File# 0725-10-AD003
ATTACHMENT A
Current Assessment Districts Within the Ci.ty of Chula Vista
Assessment Original
District Principal,
No. Name Parcels (MilS) Type
85-2 Eastlake I 3,304 $7.7 Construction
86-1 Eastlake I (Residential) 1,818 5.3 Acquisition
87-1 East H Street 3,298 7.8 Acquisition
88-1 Otay Lakes Road I 28 7.3 Acquisition
88-2 Otay Lakes Road, Rancho Del Rey 1,340 8.0 Acquisition
90-1 Salt Creek I 523 4.7 Acquisition
90-2 Otay Valley Road 67 5.7 Construction
90-3 Eastlake Greens I 2,374 22.4 Acquisition
91-1 Telegraph Canyon Road II 1,116 6.8 Acquisition
94-1 Eastlake Greens II 1,139 7.5 Acquisition
97-2 Otay Ranch Village I 508 12.4 Construction
Total 15,515 95.6 Mils
A:~ADAGENDA.TBL
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING AN AGREEMENT WITH
BERRYMkN & HENIGAR FOR APPORTIONMENT SERVICES
FOR FISCAL YEAIIS 2000-2001 THROUGH 2002-03 FOR
CITY ASSESSMENT DISTRICTS, AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT AND
AUTHORIZING AN EXPENDITURE OF A MAXIMUM OF
$150,000 FOR THIS PURPOSE
WHEREAS, the purpose of the proposed agreement is to
retain the services of Berryman & Henigar to perform the
respreading of assessments on existing City's assessment district
and prepare the "Annual Collection Report" to be submitted to the
County for inclusion in the property tax bill; and
WHEREAS, the current agreement with Berryman & Henigar
for performing these services, which was for a term of five (5)
years, expires this year and the proposed agreement is for a term
of three (3) years; and
WHEREAS, this action will ensure that the City' s
fiduciary responsibility to the bond holders is fulfilled by
providing required apportionment and collection as delineated in
the Streets and Highways Code.
NOW, THEREFORE, BE IT RESOLVED the City Council of the
City of Chula Vista does hereby approve an agreement with Berryman
& Henigar for apportionment services for Fiscal Years 2000-2001
through 2002-2003 for City Assessment Districts, a copy of which
shall be kept on file in the office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of
Chula Vista is hereby authorized and directed to execute said
Agreement for and on behalf of the City of Chula Vista.
BE IT FURTHER RESOLVED that the expenditure of funds from
assessment district fees for the payment of these services in an
amount not to exceed $150,000 is hereby authorized.
Presented by Approved as to form by
~'M~ah~een ~Att '~ e~
John P. Lippitt, Director of . ~, ' y ~tt~o~ y
Public Works
H: ~home ~at t orney\ reso\berryman, a§r ~/
Parties and Recital Page(s)
Agreement between
City of Chula Vista
and
Berryman & Henigar
for Assessment District Apportionment Services
This agreement ("Agreement"), dated for
the purposes of reference only, and effective as of the date last
executed unless another date is otherwise specified in Exhibit A,
Paragraph 1 is between the City-related entity as is indicated on
Exhibit A, paragraph 2, as such ("City"), whose business form is
set forth on Exhibit A, paragraph 3, and the entity indicated on
the attached Exhibit A, paragraph 4, as Consultant, whose business
form is set forth on Exhibit A, paragraph 5, and whose place of
business and telephone numbers are set forth on Exhibit A, para-
graph 6 ("Consultant"), and is made with reference to the following
facts:
Recitals
WHEREAS, the City has formed assessment districts to provide
funding for infrastructure under the Municipal Improvement Act of
1913;
WHEREAS, Section 8730 of said Act requires that when a parcel
of land upon which there is an unpaid assessment divides, the ori-
ginal assessment must be segregated and apportioned in accordance
with the benefits to the several parts of the original list;
WHEREAS, the City is desirous of retaining a consultant to
this end; and
WHEREAS, Consultant warrants and represents that they are
experienced and staffed in a manner such that they are and can pre-
pare and deliver the services required of Consultant to City within
the time frames herein provided all in accordance with the terms
and conditions of this Agreement;
2ptyadl3.wp
April 24, 2000 Page 1
Obligatory Provisions Pages
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant
do hereby mutually agree as follows:
1. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on the
attached Exhibit A, Paragraph 7, entitled "General Duties"; and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General
Duties", Consultant shall also perform all of the services des-
cribed in Exhibit A, Paragraph 8, entitled "Scope of Work and
Schedule", not inconsistent with the General Duties, according to,
and within the time frames set forth in Exhibit A, Paragraph 8, and
deliver to City such Deliverables as are identified in Exhibit A,
Paragraph 8, within the time frames set forth therein, time being
of the essence of this agreement. The General Duties and the work
and deliverables required in the Scope of Work and Schedule shall
be herein referred to as the "Defined Services". Failure to com-
plete the Defined Services by the times indicated does not, except
at the option of the City, operate to terminate this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request from Consultant, from
time to time reduce the Defined Services to be performed by the
Consultant under this Agreement. Upon doing so, City and Con-
sultan agree to meet in good faith and confer for the purpose of
negotiating a corresponding reduction in the compensation as-
sociated with said reduction.
D. Additional Services
In addition to performing the Defined Services herein set
forth, City may require Consultant to perform additional consul-
ting services related to the Defined Services ("Additional Ser-
vices''), and upon doing so in writing, if they are within the scope
of services offered by Consultant, Consultant shall perform same on
a time and materials basis at the rates set forth in the "Rate
Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed
2ptyadl3.wp
April 24, 2000 Page 2
fee is otherwise agreed upon. Ail compensation for Additional
Services shall be paid monthly as billed.
E. Standard of Care
Consultant, in performing any Services under this agreement,
whether Defined Services or Additional Services, shall perform in
a manner consistent with that level of care and skill ordinarily
exercised by members of the profession currently practicing under
similar conditions and in similar locations.
F. Insurance
Consultant represents that it and its agents, staff and sub-
consultants employed by it in connection with the Services re-
quired to be rendered, are protected against the risk of loss by
the following insurance coverages, in the following categories, and
to the limits specified, policies of which are issued by Insurance
Companies that have a Best's Rating of "A, Class V" or better, or
shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's Lia-
bility Insurance coverage in the amount set forth in the attached
Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business
Automobile Insurance coverage in the amount set forth in Exhibit A,
Paragraph 9, combined single limit applied separately to each pro-
ject away from premises owned or rented by Consultant, which names
City as an Additional Insured, and which is primary to any policy
which the City may otherwise carry ("Primary Coverage"), and which
treats the employees of the City in the same manner as members of
the general public ("Cross-liability Coverage").
Errors and Omissions Insurance, in the amount set forth in
Exhibit A, Paragraph 9, unless Errors and Omissions coverage is
included in the General Liability policy.
G. Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein re-
quired, prior to the commencement of services required under this
Agreement, by delivery of Certificates of Insurance demonstrating
same, and further indicating that the policies may not be canceled
2ptyadl3.wp
April 24, 2000 Page 3
without at least thirty (30) days written notice to the Additional
Insured.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured Coverage, Pri-
mary Coverage and Cross-liability Coverage required under Consul-
tant's Commercial General Liability Insurance Policy, Consultant
shall deliver a policy endorsement to the City demonstrating same,
which shall be reviewed and approved by the Risk Manager.
H. Security for Performance.
(1) Performance Bond.
In the event that Exhibit A, at Paragraph 19, indicates the
need for Consultant to provide a Performance Bond (indicated by a
check mark in the parenthetical space immediately preceding the
subparagraph entitled "Performance Bond"), then Consultant shall
provide to the City a performance bond by a surety and in a form
and amount satisfactory to the Risk Manager or City Attorney which
amount is indicated in the space adjacent to the term, "Performance
Bond", in said Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates the
need for Consultant to provide a Letter of Credit (indicated by a
check mark in the parenthetical space immediately preceding the
subparagraph entitled "Letter of Credit"), then Consultant shall
provide to the City an irrevocable letter of credit callable by the
City at their unfettered discretion by submitting to the bank a
letter, signed by the City Manager, stating that the Consultant is
in breach of the terms of this Agreement. The letter of credit
shall be issued by a bank, and be in a form and amount satisfactory
to the Risk Manager or City Attorney which amount is indicated in
the space adjacent to the term, "Letter of Credit", in said
Paragraph 19, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 19, indicates the
need for Consultant to provide security other than a Performance
Bond or a Letter of Credit (indicated by a check mark in the
parenthetical space immediately preceding the subparagraph entitled
"Other Security"), then Consultant shall provide to the City such
2ptyadl3.wp
April 24, 2000 Page 4
other security therein listed in a form and amount satisfactory to
the Risk Manager or City Attorney.
I. Business License
Consultant agrees to obtain a business license from the City
and to otherwise comply with Title 5 of the Chula Vista Municipal
Code.
2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose of
reviewing the progress of the Defined Services and Schedule therein
contained, and to provide direction and guidance to achieve the
objectives of this agreement. The City shall permit access to its
office facilities, files and records by Consultant throughout the
term of the agreement. In addition thereto, City agrees to provide
the information, data, items and materials set forth on Exhibit A,
Paragraph 10, and with the further understanding that delay in the
provision of these materials beyond 30 days after authorization to
proceed, shall constitute a basis for the justifiable delay in the
Consultant's performance of this agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant
submitted to the City periodically as indicated in Exhibit A,
Paragraph 18, but in no event more frequently than monthly, on the
day of the period indicated in Exhibit A, Paragraph 18, City shall
compensate Consultant for all services rendered by Consultant
according to the terms and conditions set forth in Exhibit A,
Paragraph 11, adjacent to the governing compensation relationship
indicated by a "check mark" next to the appropriate arrangement,
subject to the requirements for retention set forth in paragraph 19
of Exhibit A, and shall compensate Consultant for out-of-pocket ex-
penses as provided in Exhibit A, Paragraph 12.
All billings submitted by Consultant shall contain sufficient
information as to the propriety of the billing to permit the City
to evaluate that the amount due and payable thereunder is proper,
and shall specifically contain the City's account number indicated
on Exhibit A, Paragraph 18 (C) to be charged upon making such
payment.
2ptyadl3.wp
April 24, 2000 Page 5
3. Administration of Contract
Each party designates the individuals ("Contract Administra-
tors'') indicated on Exhibit A, Paragraph 13, as said party's con-
tract administrator who is authorized by said party to represent
them in the routine administration of this agreement.
4. Term.
This Agreement shall terminate when the Parties have complied
with all executory provisions hereof.
5. Liquidated Damages
The provisions of this section apply if a Liquidated Damages
Rate is provided in Exhibit A, Paragraph 14.
It is acknowledged by both parties that time is of the essence
in the completion of this Agreement. It is difficult to estimate
the amount of damages resulting from delay in performance. The
parties have used their judgment to arrive at a reasonable amount
to compensate for delay.
Failure to complete the Defined Services within the allotted
time period specified in this Agreement shall result in the fol-
lowing penalty: For each consecutive calendar day in excess of the
time specified for the completion of the respective work as-
signment or Deliverable, the consultant shall pay to the City, or
have withheld from monies due, the sum of Liquidated Damages Rate
provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate").
Time extensions for delays beyond the Consultant's control,
other than delays caused by the City, shall be requested in writing
to the City's Contract Administrator, or designee, prior to the
expiration of the specified time. Extensions of time, when
granted, will be based upon the effect of delays to the work and
will not be granted for delays to minor portions of work unless it
can be shown that such delays did or will delay the progress of the
work.
6. Financial Interests of Consultant
A. Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as an
"FPPC filer", Consultant is deemed to be a "Consultant" for the
2ptyadl3.wp
April 24, 2000 Page 6
purposes of the Political Reform Act conflict of interest and dis-
closure provisions, and shall report economic interests to the City
Clerk on the required Statement of Economic Interests in such re-
porting categories as are specified in Paragraph 15 of Exhibit A,
or if none are specified, then as determined by the City Attorney.
B. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant shall not make, or participate in making or in
any way attempt to use Consultant's position to influence a go-
vernmental decision in which Consultant knows or has reason to know
Consultant has a financial interest other than the compensation
promised by this Agreement.
C. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant warrants and represents that Consultant has
diligently conducted a search and inventory of Consultant's eco-
nomic interests, as the term is used in the regulations promul-
gated by the Fair Political Practices Commission, and has deter-
mined that Consultant does not, to the best of Consultant's know-
ledge, have an economic interest which would conflict with Consul-
tant's duties under this agreement.
D. Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will not acquire, obtain, or assume an economic interest during the
term of this Agreement which would constitute a conflict of inter-
est as prohibited by the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC
Filer, Consultant further warrants and represents that Consultant
will immediately advise the City Attorney of City if Consultant
learns of an economic interest of Consultant's which may result in
a conflict of interest for the purpose of the Fair Political
Practices Act, and regulations promulgated thereunder.
2ptyadl3.wp
April 24, 2000 Page 7
F. Specific Warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant,
nor Consultant's immediate family members, nor Consultant's employ-
ees or agents ("Consultant Associates") presently have any inter-
est, directly or indirectly, whatsoever in any property which may
be the subject matter of the Defined Services, or in any property
within 2 radial miles from the exterior boundaries of any property
which may be the subject matter of the Defined Services,
("Prohibited Interest"), other than as listed in Exhibit A,
Paragraph 15.
Consultant further warrants and represents that no promise of
future employment, remuneration, consideration, gratuity or other
reward or gain has been made to Consultant or Consultant's Asso-
ciates in connection with Consultant's performance of this Agree-
ment. Consultant promises to advise City of any such promise that
may be made during the Term of this Agreement, or for twelve (12)
months thereafter.
Consultant agrees that Consultant's Associates shall not ac-
quire any such Prohibited Interest within the Term of this Agree-
ment, or for twelve (12) months after the expiration of this Agree-
ment, except with the written permission of City.
Consultant may not conduct or solicit any business for any
party to this Agreement, or for any third party which may be in
conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City.
7. Hold Harmless
Consultant shall defend, indemni~y, protect and hold harmless
the City, its elected and appointed officers and employees, from
and against all claims for damages, liability, cost and expense
(including without limitation attorneys' fees) arising out of the
conduct of Consultant, or any agent or employee, sub-contractors,
or others in connection with the execution of the work covered by
this Agreement, except only for those claims arising from the sole
negligence or sole willful misconduct of the City, its officers, or
employees. Consultant's indemnification shall include any and all
costs, expenses, attorneys' fees and liability incurred by the
City, its officers, agents, or employees in defending against such
claims, whether the same proceed to judgment or not. Further, Con-
sultan at its own expense shall, upon written request by the City,
defend any such suit or action brought against the City, its offi-
2ptyadl3.wp
April 24, 2000 Page 8
cers, agents, or employees. Consultant's indemnification of City
shall not be limited by any prior or subsequent declaration by
Consultant.
8. Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a
timely and proper manner Consultant's obligations under this Ag-
reement, or if Consultant shall violate any of the covenants,
agreements or stipulations of this Agreement, City shall have the
right to terminate this Agreement by giving written notice to Con-
sultan of such termination and specifying the effective date
thereof at least five (5) days before the effective date of such
termination. In that event, all finished or unfinished documents,
data, studies, surveys, drawings, maps, reports and other mater-
ials prepared by Consultant shall, at the option of the City,
become the property of the City, and Consultant shall be entitled
to receive just and equitable compensation for any work satis-
factorily completed on such documents and other materials up to the
effective date of Notice of Termination, not to exceed the amounts
payable hereunder, and less any damages caused City by Consultant's
breach.
9. Errors and Omissions
In the event that the City Manager determines that the Con-
sultan's negligence, errors, or omissions in the performance of
work under this Agreement has resulted in expense to City greater
than would have resulted if there were no such negligence, errors,
omissions, Consultant shall reimburse City for any additional ex-
penses incurred by the City. Nothing herein is intended to limit
City's rights under other provisions of this agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any rea-
son, by giving specific written notice to Consultant of such termi-
nation and specifying the effective date thereof, at least thirty
(30) days before the effective date of such termination. In that
event, all finished and unfinished documents and other materials
described hereinabove shall, at the option of the City, become
City's sole and exclusive property. If the Agreement is terminated
by City as provided in this paragraph, Consultant shall be entitled
to receive just and equitable compensation for any satisfactory
work completed on such documents and other materials to the effec-
tive date of such termination. Consultant hereby expressly waives
2ptyadl3.wp
April 24, 2000 Page 9
any and all claims for damages or compensation arising under this
Agreement except as set forth herein.
11. Assignability
The services of Consultant are personal to the City, and Con-
sultan shall not assign any interest in this Agreement, and shall
not transfer any interest in the same (whether by assignment or no-
vation), without prior written consent of City. City hereby con-
sents to the assignment of the portions of the Defined Services
identified in Exhibit A, Paragraph 17 to the subconsultants identi-
fied thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms,
designs, plans, procedures, systems and any other materials or
properties produced under this Agreement shall be the sole and ex-
clusive property of City. No such materials or properties produced
in whole or in part under this Agreement shall be subject to pri-
vate use, copyrights or patent rights by Consultant in the United
States or in any other country without the express written consent
of City. City shall have unrestricted authority to publish, dis-
close (except as may be limited by the provisions of the Public Re-
cords Act), distribute, and otherwise use, copyright or patent, in
whole or in part, any such reports, studies, data, statistics,
forms or other materials or properties produced under this Agree-
ment.
13. Independent Contractor
City is interested only in the results obtained and Consul-
tant shall perform as an independent contractor with sole control
of the manner and means of performing the services required under
this Agreement. City maintains the right only to reject or accept
Consultant's work products. Consultant and any of the Consultant's
agents, employees or representatives are, for all purposes under
this Agreement, an independent contractor and shall not be deemed
to be an employee of City, and none of them shall be entitled to
any benefits to which City employees are entitled including but not
limited to, overtime, retirement benefits, worker's compensation
benefits, injury leave or other leave benefits. Therefore, City
will not withhold state or federal income tax, social security tax
or any other payroll tax, and Consultant shall be solely respon-
sible for the payment of same and shall hold the City harmless with
regard thereto.
2ptyadl3.wp
April 24, 2000 Page 10
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this
agreement, against the City unless a claim has first been presen-
ted in writing and filed with the City and acted upon by the City
in accordance with the procedures set forth in Chapter 1.34 of the
Chula Vista Municipal Code, as same may from time to time be amen-
ded, the provisions of which are incorporated by this reference as
if fully set forth herein, and such policies and procedures used by
the City in the implementation of same.
Upon request by City, Consultant shall meet and confer in good
faith with City for the purpose of resolving any dispute over the
terms of this Agreement.
15. Attorney's Fees
Should a dispute arising out of this Agreement result in liti-
gation, it is agreed that the prevailing party shall be entitled to
a judg~nent against the other for an amount equal to reasonable at-
torney's fees and court costs incurred. The "prevailing party"
shall be deemed to be the party who is awarded substantially the
relief sought.
16. Statement of Costs
In the event that Consultant prepares a report or document, or
participates in the preparation of a report or document in perform-
ing the Defined Services, Consultant shall include, or cause the
inclusion of, in said report or document, a statement of the
numbers and cost in dollar amounts of all contracts and subcon-
tracts relating to the preparation of the report or document.
17.. Miscellaneous
A. Consultant not authorized to represent City
Unless specifically authorized in writing by City, Consultant
shall have no authority to act as City's agent to bind City to any
contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the Con-
sultan and/or their principals is/are licensed with the State of
2ptyadl3.wp
April 24, 2000 Page 11
California or some other state as a licensed real estate broker or
salesperson. Otherwise, Consultant represents that neither Consul-
tant, nor their principals are licensed real estate brokers or
salespersons.
C. Notices
Ail notices, demands or requests provided for or permitted to
be given pursuant to this Agreement must be in writing. All no-
tices, demands and requests to be sent to any party shall be deemed
to have been properly given or served if personally served or depo-
sited in the United States mail, addressed to such party, postage
prepaid, registered or certified, with return receipt requested, at
the addresses identified herein as the places of business for each
of the designated parties.
D. Entire Agreement
This Agreement, together with any other written document re-
ferred to or contemplated herein, embody the entire Agreement and
understanding between the parties relating to the subject matter
hereof. Neither this Agreement nor any provision hereof may be
amended, modified, waived or discharged except by an instrument in
writing executed by the party against which enforcement of such
amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and repre-
sents to the other party that it has legal authority and capacity
and direction from its principal to enter into this Agreement, and
that all resolutions or other actions have been taken so as to
enable it to enter into this Agreement.
Governing Law/Venue
This Agreement shall be governed by and construed in accor-
dance with the laws of the State of California. Any action arising
under or relating to this .Agreement shall be brought only in the
federal or state courts located in San Diego County, State of
California, and if applicable, the City of Chula Vista, or as close
thereto as possible. Venue for this Agreement, and performance
hereunder, shall be the City of Chula Vista.
[end of page. next page is signature page.]
2ptyadl3.wp
April 24, 2000 Page 12
Signature Page
to
Agreement between
City of Chula Vista
and
Berryman & Henigar
for Assessment District Apportionment Services
IN WITNESS WHEREOF, City and Consultant have executed this
Agreement thereby indicating that they have read and understood
same, and indicate their full and complete consent to its terms:
Dated: 2000 City of Chula Vista
by:
Shirley Horton, Mayor
Attest:
Susan Bigelow, City Clerk
Approved as to form:
Jo~'~4. Kaheny, Ci~/~ttorney
Dated: ~/~/od Berryman & Henigar
[nt~e ~f persian, title]
Exhibit List to Agreement
(X) Exhibit A.
2ptyadl3.wp
April 24, 2000 Page 13
Exhibit A
to
Agreement'between
City of Chula Vista
and
Berryman & Henigar
1. Effective Date of Agreement: Date of Approval by City Council
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of
the State of California
( ) Redevelopment Agency of the City of Chula Vista, a
political subdivision of the State of California
( ) Industrial Development Authority of the City of Chula
Vista, a
( ) Other: , a
[insert business form]
("City")
3. Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant: Berryman & Henigar
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
11590 West Bernardo Court, Suite 100
San Diego, California 92127-1624
Voice Phone (619) 451-6100
Fax Phone (619) 451-2846
2ptyadl 3. wp
April 24, 2000 Page 14
7. General Duties:
The Consultant shall provide assessment district apportionment
services as requested by the City for the Tax Years commencing from
2000-2001 to 2002-2003.
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
The Consultant will be responsible for the following tasks:
1. Upon direction of the City, the Consultant shall apportion the
liens amongst the newly created parcels in the manner that
would have been done had such a subdivision existed at the
time of the confirmation of the District and file the segre-
gation with the County Tax Auditor after the City reviews
and authorizes such.
2. The Consultant shall annually prepare an amended assessment
diagram for each assessment district which requires appor-
tionment. One Mylar copy shall be provided to the City and
one copy recorded with the County of San Diego for each amen-
ded assessment diagram.
3. The Consultant shall prepare the annual collections tape for
all assessment districts to be submitted to the County Tax
Auditor and provide four (4) printed copies to the City.
4. The Consultant shall update spreadsheets showing assessment
number, assessor parcel number (APN), outstanding principal,
assessment installment, County and City fees, interest and new
outstanding principal for all parcels within assessment dis-
tricts for annual submittal to the City in computer digital
files compatible with Microsoft Excel software and a printed
hard copy.
5. The Consultant shall send to the original purchaser of the
district bonds a notice of apportionment and a copy of the re-
vised assessment diagram in accordance with the Improvement
Bond Act of 1915 after the City reviews and authorizes such.
6. The Consultant shall notify the underwriters by registered
mail prior to the County's August deadline but after review
of the information by the City.
2ptyadl3.wp
April 24, 2000 Page 15
B. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
( ) Other:
C. Dates or Time Limits for Delivery of Deliverables:
Tax Year 2000-01
August 1, 2000, Electronic Tape and Maps to the County,
hard copies and computer digital files of items 7 and 8
Above to the City.
Future Tax Years
August 1 of every year, Electronic Tape and Maps to the
County, hard copies and computer digital files of items
7 and 8 above to the City.
D. Date for completion of all Consultant services:
Upon completion of all services.
9. Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
(X) Employer's Liability Insurance coverage: $1,000,000.
( ) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required (included
in Commercial General Liability coverage).
(X) Errors and Omissions Insurance: $250,000 (not included
in Commercial General Liability coverage).
10. Materials Required to be Supplied by City to Consultant:
A. List of the assessment districts the City would like Con-
sultant to administer for each fiscal year (indicate
mapping, spreadsheet updating and/or electronic tape pre-
paration services)
Bi Copy of the Final Engineer's Report and Final Official
Statement for each assessment district
C. Listing of parcels that have paid off their assessments
(partially or fully) since the assessment districts
were formed
2ptyadl3.wp
April 24, 2000 Page 16
D. List of the bonds that have been called for each asses-
ment district since the bonds were issued. The list
should include the amount of bonds called and their
corresponding fiscal year for each assessment district.
E. List of parcels requiring apportionment services for
each assessment district for each fiscal year
F. Name and address of the underwriter or other original
purchaser of the bonds for each assessment district
G. A sample copy of the City approved notice to
underwriters or other original purchaser of bonds
H. A hard copy of last year's database and diagrams for
each assessment district. Also, a copy of the databases
and diagrams in electronic format for each assessment
district
I. An electronic listing of delinquency charges for each
assessment district to be assessed for each fiscal year
11. Compensation:
A. ( ) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant
as herein required, City shall pay a single fixed fee in the
amounts and at the times or milestones or for the Deliverables set
forth below:
Single Fixed Fee Amount: , payable as
follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fe~
B. ( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined
Services by Consultant as are separately identified below, City
shall pay the fixed fee associated with each phase of Services, in
the amounts and at the times or milestones or Deliverables set
forth. Consultant shall not commence Services under any Phase, and
shall not be entitled to the compensation for a Phase, unless City
shall have issued a notice to proceed to Consultant as to said
Phase.
2ptyadl3.wp
April 24, 2000 Page 17
Phase Fee for Said Phase
1. $
2. $
3. $
C. ( ) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as
herein required, City shall pay Consultant for the productive hours
of time spent by Consultant in the performance of said additional
Services, at the rates or amounts set forth in the Rate Schedule
hereinbelow according to the following terms and conditions:
(1) ( ) Not-to-Exceed Limitation on Time and Materials
Arrangement
Notwithstanding the expenditure by Consultant of
time and materials in excess of said Maximum Compen-
sation amount, Consultant agrees that Consultant will
perform all of the Defined Services herein required of
Consultant for $ including all Materials,
and other "reimbursables" ("Maximum Compensation").
(2) ( ) Limitation without Further Authorization on
Time and Materials Arrangement
At such time as Consultant shall have incurred time
and materials equal to ("Authorization
Limit"), Consultant shall not be entitled to any addi-
tional compensation without further authorization issued
in writing and approved by the City. Nothing herein
shall preclude Consultant from providing additional
Services at Consultant's own cost and expense.
2ptyadl3.wp
April 24, 2000 Page 18
Rate Schedule
Category of Employee of Consultant Hourly Rate
Project Manager $120
Senior Financial Analyst $100
Financial Analyst $80
CkDD Operator 1 $60
Word Processor $40
( ) Hourly rates may increase by 6% for services
rendered after [month], 2000, if delay in providing
services is caused by City.
(3) (X) Additional Services Upon Request
At any time during the term of this agreement the City
Engineer may request the Consultant to perform addi-
tional services. The Consultant shall perform the same
on a ~time and material" basis at the rates set forth
in the ~Schedule of Hourly Rates" set forth above.
(D). (X) Other, Piecemeal
Work shall be paid on a per parcel basis with all costs, materials
and labor included in said unit cost.
Task Fee for Said Task
1. Mapping $18.00/Parcel
2. Spreadsheet Updating $0.85/Parcel
3. Electronic Tape Preparation $0.30/Parcel
The mapping and spreadsheet updating fees apply only to new
parcels. The tape preparation fee applies to the total par-
cel count.
12. Materials Reimbursement Arrangement
For the cost of out-of-pocket expenses incurred by Consultant
in the performance of services herein required, City shall pay
Consultant at the rates or amounts set forth below:
(X) None, the compensation includes all costs.
Cost or Rate
2ptyadl3.wp
April 24, 2000 Page 19
Reports, not to exceed $ :
Copies, not to exceed $ :
Travel, not to exceed $ :
Printing, not to exceed $ :
Postage, not to exceed $ :
Delivery, not to exceed $ :
Long Distance Telephone Charges,
not to exceed $
Other Actual Identifiable Direct Costs:
, not to exceed $ :
not to exceed $ :
13. Contract Administrators:
City: Elizabeth Chopp, City of Chula Vista
Department of Public Works
Engineering Division
(619) 691-5258
Consultant: Joe Francisco
Berryman & Henigar
1+(800) 945-4274 ext. 104
14. Liquidated Damages Rate:
( ) $__ per day.
(X) Other: None
15. Statement of Economic Interests, Consultant Reporting
Categories, per Conflict of Interest Code:
(X) Not Applicable. Not an FPPC Filer.
( ) FPPC Filer
Category No. 1. Investments and sources of income.
Category No. 2. Interests in real property.
Category No. 3. Investments, interest in real
property and sources of income subject to the
regulatory, permit or licensing authority of the
department.
Category No. 4. Investments in business entities
and sources of income which engage in land develop-
2ptyadl3.wp
April 24, 2000 Page 20
ment, construction or the acquisition or sale of
real property.
( ) Category No. 5. Investments in business entities
and sources of income of the type which, within the
past two years, have contracted with the City of
Chula Vista (Redevelopment Agency) to provide ser-
vices, supplies, materials, machinery or equipment.
( ) Category NoJ 6. Investments in business entities
and sources of income of the type which, within the
past two years, have contracted with the designated
employee's department to provide services, sup-
plies, materials, machinery or equipment.
( ) Category No. 7. Business positions.
( ) List "Consultant Associates" interests in real property
within 2 radial miles of Project Property, if any:
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
18. Bill Processing:
A. Consultant's Billing to be submitted for the following
period of time:
( ) Monthly
( ) Quarterly
(x) Other:
2ptyadl3.wp
April 24, 2000 Page 21
B. Day of the Period for submission of Consultant's Billing:
( ) First of the Month
( ) 15th Day of each Month
( ) End of the Month
(X) Other: At completion of work
C. City's Account Number: Separate Accounts for Each
Assessment District
19. Security for Performance
Performance Bond, $
Letter of Credit, $
Other Security:
Type:
Amount: $
Retention. If this space is checked, then notwithstan-
ding other provisions to the contrary requiring the pay-
ment of compensation to the Consultant sooner, the City
shall be entitled to retain, at their option, either the
following "Retention Percentage" or "Retention Amount"
until the City determines that the Retention Release
Event, listed below, has occurred:
( ) Retention Percentage:
( ) Retention Amount: $
Retention Release Event: ( ) Completion of All Consultant Services
( ) Other:
2ptyadl3. wp
April 24, 2000 Page 22
COUNCIL AGENDA STATEMENT
Item
Meeting Date: 5/16/00
ITEM TITLE: Resolution Rejecting bids for the "Installation of Internally
Illuminated Street Name Signs at various locations in the City of Chula
Vista" (CIP TF-279)
SUBMITTED BY: Director of Public Works ~/
~0Y 4/5ths Vote: Yes No X )
REVIEWED BY: City Manager Go
On April 19, 2000, the Director of Public works received sealed bids from two electrical
contractors for the "Installation of Internally Illuminated Street Name Signs at various locations in
the City of Chula Vista" (CIP TF-279). After reviewing those bids, staff recommends, in the best
interest of the City, that those bids be rejected. City staff will re-advertise the project for bids on
May 20, 2000.
RECOMMENDATION: That Council approve the resolution rejecting bids for the "Installation
of Internally Illuminated Street Name Signs at Various Locations in the City of Chula Vista"
(CIP TF-279).
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
On April 19, 2000, the Director of Public works received sealed bids from two electrical
contractors for the Installation of Internally Illuminated Street Name Signs at various locations in
the City of Chula Vista. This was an.approved Capital Improvement Program Project (CIP TF-
279) for 1999-2000. The propose for the internally illuminated street name signs was to enhance
the visibility of street names signs throughout the City, especially for hight-time motorists. The
approved CIP budget for the project was $50,000.
City staff opened two bids for this project. The apparent low bidder was Trasig Corporation
($59,400); the other bidder was T & M Electric, dba Perry Electric ($104,000). The apparent
low bidder did not sign their bid documents. After consulting with the City Attorney's office, it
was determined that the contractor is not considered eligible for award of contract. Due to the
budget constraints of this project, staff could not recommend accepting bids from the second
apparent low bidder, since their bid was higher than the engineer's estimate of $43,000 by
$66,000.
Staff will inform the contractors who submitted bids, as well as those contractors who requested
bid information, that the project will be re-advertised. Staff will consult with all these
contractors, who did not submit any bids, and clarify any misunderstanding that precluded their
bids. Staff plans to re-advertise the project for bid on May 20, 2000.
FISCAL IMPACT: By rejecting both bids, the fiscal impact is minimal.
H:~IOME~ENGINEER~AGENDA\TF279B .pgs. DOC
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA REJECTING BIDS FOR THE "INSTALLATION OF
INTERNALLY ILLUMINATED STREET NAME SIGNS AT VARIOUS
LOCATIONS IN THE CITY OF CHULA VISTA" (CIP TF-279)
WHEREAS, on April 19, 2000, the Director of Public Works received sealed bids from
two electrical contractors for the "Installation of Internally Illuminated Street Name Signs at various
locations in the City of Chula Vista"; and
WHEREAS, the apparent Iow bidder was Trasig Corporation ($59,400)who did not sign
the bid documents and, therefore, was considered not eligible for award of contract; and
WHEREAS, the other bidder was T&M Electric, dba Perry Electric ($104,000)whose
bid was higher than the engineer's estimated of $43,000 by $66,000; and
WHEREAS, after reviewing the bids, staff recommends, in the bests interest of the City,
that the bids be rejected; and
WHEREAS, City staff will re-advertise the project for bids on May 20,2000.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does
hereby reject bids for the "Installation of Internally Illuminated Street Name Signs at various locations
in the City of Chula Vista (ClP TF-279).
Presented by Approved as to form by
John P. Lippitt J~n M. Kahe~y //
Director of Public Works City Attorney
[(H:\home\attemey\reso\reject bids street name signs (May 9, 2000 (9:33am)I
COUNCIL AGENDA STATEMENT
Item ¢
Meeting Date: May 16~ 2000
ITEM TITLE: Resolution approving the transfer of funds from Library and
Recreation Supplies and Services accounts to the Capital Equipment account
for the purchase of equipment in the Parks and Recreation operating budget.
SUBMITTED BY: Deputy City Manager Palme~'y
REVIEWED BY: City Manager ~r~W (4/Sths Vote: Yes X No )
The City's budget transfer policy calls for City Council's approval to transfer more than $15,000
between budget summary accounts, such as between Supplies and Services and Capital
Equipment. The Parks and Recreation Department has two equipment items that have been
approved by the City Manager for purchase this fiscal year. However, the dollar amount for
these items exceeds the $15,000 limit.
RECOMMENDATION: That Council adopt the resolution approving the transfer of funds
from the Supplies and Services account to Capital Equipment account for the purchase of
equipment in the Recreation Division operating budget.
BOARDS/COMMISSIONS RECOMMEDNATION: Not applicable.
DISCUSSION:
In discussion with the City Manager, regarding the Department's proposed 2000-01 budget, the
City Manager approved a request to purchase an Engineering Scanner/Printer, and Laser Color
Printer, described below.
1. One Engineering Digital Document System, at a cost of $35,552, for printing, scanning,
storing, and copying of engineering drawings as well as creating, and designing documents.
The system is networkable and laserfische compatible. This scanner/printer would be
purchased from the savings in the Supplies and Services accounts in the Recreation
Division Expenditures Funds. This system will also be shared with the Planning
department housed in the Mercy Building.
2. One Laser Color Printer, at a cost of $3,772, for printing documents directly from personal
computers for the use of the reconstituted Parks and Recreation department.
FISCAL IMPACT:
Recreation Division funds of $39,324 will be transferred from various Supplies and Services
accounts to the Other Equipment capital account in the Parks and Recreation operating budget
for the purchase of equipment for the Parks and Recreation Division.
H:\HOME\PARKSREC\A113\Transfer of funds for Scanner-Printer.doc
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING TRANSFER OF FUNDS FROM LIBRARY AND
RECREATION SUPPLIES AND SERVICES ACCOUNTS TO THE
CAPITAL EQUIPMENT ACCOUNT FOR THE PURCHASE OF
EQUIPMENT IN THE PARKS AND RECREATION OPERATING
BUDGET
WHEREAS, the City's budget transfer policy calls for City Council approval to transfer
more than $15,000 between budget summary accounts, such as between Supplies and Services and
Capital Equipment; and
WHEREAS, the Parks and Recreation Department has two equipment items that have
been approved by the City Manager for purchase this year, however, the dollar amount for these items
exceeds the $15,000 limit; and
WHEREAS, $39,324 needs to be transferred in order to purchase one Engineering
Digital Document System at a cost of $35,552 and one Laser Color Print at a cost of $3,772.
NOW, TH EREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does
hereby approve the transfer of $39,324 from various Supplies and Services accounts to the Other
Equipment capital account in the Parks and Recreation operating budget for the purchase of equipment
-- in the Parks and Recreation operating budget.
Presented by Approved as to form by
David Palmer !~~~~- -W
Deputy City Manager
[( H:/horne/attor ney/reso/x fer funds P&R scanner printer (May 5, 2000 (2:34pm)]
CITY COUNCIL AGENDA STATEMENT
Item
Meeting Date: 5/16/0._.~0
ITEM TITLE: Resolution amending the FY 1999-00 budget for the Library and
Recreation Department by appropriating $10,000 in unanticipated revenue
and authorizing an agreement between the City and the YMCA for the City
to retain specialized independent contractors to provide extended after-school
programs, r~)
SUBMITTED BY: Deputy City Manager Palme
REVIEWED BY: City Manager jS~$ (4/5thsVote: Yes3[
The YMCA Youth and Family Services has awarded the City, through its Library and Recreation
Department, a $10,000 contract for the provision of enhanced after-school programming at Castle
Park Middle School and Hilltop Middle School. The funding is part of a grant applied for and
received by the Chula Vista Youth Coalition from the County of San Diego Critical Hours funding.
The YMCA is the designated fiscal agent for the grant, and, as such, is subcontracting various
services to be provided by several Youth Coalition members.
RECOMMENDATION: That Council adopt the resolution amending the Library and Recreation
budget by appropriating $10,000 in unanticipated revenue and authorizing the Dep.u .W City Manager,
on behalf of the City, to enter into a subcontract with the YMCA for the prows~on of specified
services.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION: Last spring, the Chula Vista Youth Coalition applied for Critical Hours funding
from the County of San Diego. In the fall of 1999 the County approved the grant request and
funding was authorized to the YMCA Youth and Family Services as the desi .gnated fiscal agent. The
YMCA is now subcontracting with several Youth Coalition member agenmes, including the City,
for the provision of services. The Library and Recreation Department will use the $10,000 to provide
a variety of programs and activities that will be conducted by independent contractors at Castle Park
and Hilltop Middle Schools. These programs will enhance the programming already being provided
at these sites through other City and District fimding. Examples of the new programs to be offered
include fitness training, martial arts instruction, cooking classes, and self-development programs.
FISCAL IMPACT: The YMCA is subcontracting with the City for $10,000 ($5,000 for each of
the two school sites; Castle Park and Hilltop Middle Schools). The FY 99/00 budget for the Library
and Recreation Department would be amended, appropriating $10,000 for the retention of
contractual instructors. The YMCA would reimburse the City for expenses following the submittal
of invoices and proof of expenditures.
Attachment: "A" - Agreement between the YMCA of San Diego County, and the City of Chula Vista
H:\home\parksrec~A1131critical hfs.subcontract
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA AMENDING THE FY 1999-00 BUDGET FOR THE LIBRARY
AND RECREATION DEPARTMENT BY APPROPRIATING
$10,000 IN UNANTICIPATED REVENUE AND AUTHORIZING AN
AGREEMENT BETWEEN THE CITY AND THE YMCA FOR THE CITY
TO RETAIN SPECIALIZED INDEPENDENT CONTRACTORS TO
PROVIDE EXTENDED AFTER-SCHOOL PROGRAMS
WHEREAS, the YMCA Youth and Family Services has awarded the City, through its
Library and Recreation Department, a $10,000 contract for the provision of enhanced after-school
programming at Castle Park Middle School and Hilltop Middle School; and
WHEREAS, the funding is part of a grant applied for and received by the Chula Vista
Youth Coalition from the County of San Diego Critical Hours funding; and
WHEREAS, the YMCA is the designated fiscal agent for the grant, and, as such, is
subcontracting various services to be provided by several Youth Coalition members.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does
hereby amend the FY 1999-00 budget for the Library and Recreation Department by appropriating
$10,000 in unanticipated revenue for the retention of contractual instructors which will be reimbursed
by YMCA to the City following the submittal of invoices and proof of expenditures.
BE IT FURTHER RESOLVED that the Deputy City Manager is hereby authorized, on
behalf of the City, to enter into a subcontract with the YMCA for the provision of specified services.
Presented by Approved as to form by
DD ea~iulyP~litrrce~la n ag e r ~:~. thynAMB-~rKnae~eny (~r- - u
[(H \home/arLorney\reso\YM CA after school program (May 5, 2000 (2: 5pm)]
SUBCONTRACT BE'FWEEN
THE YMCA OF SAN DIEGO COUNTY
YOUTH & FAMILY SERVICES-SCHOOL OUTREACH SERVICES
AND
CITY OF CHULA VISTA
This Subcontract, entered into on the 9th day of November 1999, by and between the
YMCA YOUTH & FAMILY SERVICES, 4080 Centre Street, #102, San Diego, CA
92103, hereinafter referred to as YMCA and the CITY OF CHULA VISTA, 270 "F"
Street, Chula Vista, CA 91910, hereinafter referred to as CITY.
WlTNESSETH
WHEREAS the YMCA and City desire to work cooperatively to operate and expand the
Critical Hours Program to provide after school services to students at Castle Park and
Hilltop Middle schools; and
WHEREAS, the purpose of the Critical Hours Program is to provide services at Castle
Park and Hilltop Middle Schools after school during the hours most parents work; and
WHEREAS, the YMCA is subcontracting with City to provide sports and recreational
activities to students after school at Castle Park and Hilltop Middle Schools in
partnership with YMCA; and
WHEREAS, the purpose of this subcontract is to establish a formal working relationship
between the parties, based upon the intent of policy set by the San Diego County
Board of Supervisors, the County of San Diego Health and Human Services Agency,
and the YMCA in the awarded Critical Hours Program contract.
NOW, THEREFORE, the parties hereto do mutually agree as follows:
I. RESPONSIBILITIES OF THE YMCA
The YMCA shall perform the following duties:
A. Fiscal Lead Agency
1. YMCA shall serve as the lead fiscal agency in obtaining funds for the
administration and operation of the Critical Hours Program at Castle Park and
Hilltop Middle Schools.
H:~home\parksrec~A113lcritical hfs.subcontract
2. Administer and report back to the funding source, the County of San Diego
Health and Human Services Agency on the objectives outlined in the Critical
Hours contract.
B. Program Staffing - the YMCA agrees to provide the following staff to meet the
Critical Hours objectives: Site Supervisor and two AmeriCorps members as support
staff.
C. Program Management - as per contract with the County of San Diego Health and
Human Services Agency.
D. Program Monitoring - as per contract with the County of San Diego Health and
Human Services Agency.
E. Program Evaluation - as per contract with the County of San Diego Health and
Human Services Agency.
II. RESPONSIBILITIES OF CITY
The City shall perform the following duties:
A. Provide staff or independent contractors to facilitate sports and recreational
activities to students participating in the after school Critical Hours program at
Castle Park and Hilltop Middle Schools in partnership with YMCA.
B. Submit com[~leted daily attendance rosters for each activity provided by City to
YMCA Site Supervisor for monthly submission by the YMCA as required by the
contract with the County of San Diego Health and Human Services Agency.
II1. COMPENSATION
A. The YMCA agrees to compensate the City the sum of up to $10,000 from the Critical
Hours Program funds granted to YMCA by the County of San Diego Health and
Human Services Agency to support activities provided by the City that meet the
Critical Hours objectives. This amount is based on $5,000 for each school site that
services are being provided to.
B. Transfer payments shall be made to City within one month of receipt of payment
from the County to the YMCA and is contingent upon receipt of monthly statistical
reports and invoices completed and submitted by City.
IV. TERM/TERMINATION
A. The term of this subcontract shall commence on September 1, 1999, and continue
through August 31, 2000. Both parties may review this subcontract annually. Either
party upon sixty- (60) day advance written notice may terminate the subcontract.
H:\home\parksrec~A1 131critical hrs.subcontract
2
V. AMENDMENTS
A. Amendments to this subcontract may be made with a mutual written agreement by
both parties.
VI. HOLD HARMLESS INDEMNIFICATION
A. Each party agrees to hold harmless the other, their elected and appointed officers,
trustees, agents and employees from and against all claims or damages, liability or
costs and expense (including without limitabon attorney's fees) arising out of the
performance of this subcontract by the parties, their agents, employees,
subcontractors or others, except for only those claims arising from the sole
negligence or sole willful misconduct of either party, or their officers or employees.
It is understood that such indemnity shall survive the termination of this
SUBCONTRACT.
B. The YMCA is required by the County of San Diego Health and Human Services
Agency to haveS2 million in liability insurance and shall name the County and City
as additional insures.
VII. FINGERPRINT CLEARANCE
A. Each party is responsible to insure that its employees working with students are
fingerprinted. YMCA will ensure that no individual is placed at the school site who
has a serious or violent felony conviction as defined by the Education Code, Section
44830.1, or a sex offense conviction or controlled substance conviction as defined
by the Education Code, Section 44011.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day indicated in the terms of the agreement.
YMCA ,! City of Chula Vista
y ~ /,,~ ~~-~~ Library and Recreation Department
B By
Title Executive Director Title
Date Al~ril ].2, 2000 Date
H:\home\parksrec~A1131critical hrs.subcontract
3
CITY COUNCIL AGENDA STATEMENT
Item:
Meeting Date: Ma~ 16.2000
ITEM TITLE: (a) Resolution approving a lease between the City and the
Boys & Girls Club of Chula Vista for use of Lauderbach Community
Center.
(b) Resolution approving a MOU between the City and the
Sweetwater Union High School District for use of the Community Youth
Center.
SUBMITTED BY: Deputy City Manager David Palrner~
REVIEWED BY: City Manager ~-~f~ (4/Sths Vote: Yes No X )
The City and the Boys and Girls Club of Chula Vista have negotiated an agreement to lease the
Lauderbach Commurdty Center to the Club for a period of eighteen (18) years with provision for
two (2) five (5) year renewals (ATTACHMENT A). As a result, the Recreation Division will
move its programs to the Community Youth Center on L Street and enter into a new MOU with
Sweetwater Union High School District for continued joint use of the facility (ATTACHMENT
B).
RECOMMENDATION: That Council adopt the resolutions:
(a) Approving the lease with the Boys & Girls Club for use of Lauderbach Community Center.
(b) Approving the Memorandum of Understanding (MOU) between the City and the Sweetwater
Union High School District for the use of the Conmmunity Youth Center.
BOARDS/COMMISSIONS RECOMMENDATION: At their meeting of April, 20, 2000 the
Parks and Recreation Commission voted unanimously to support both the Boys and Girls Lease
and the Youth Center MOU (ATTACHMENT C).
DISCUSSION:
In late 1999, community concerns arose regarding the competing needs between Chula Vista
High School and the Boys and Girls Club of Chula Vista for the use of the Chula Vista Youth
Center facility. At that time, the Recreation Division entered negotiations with the Boys and
Girls Club and the Sweetwater High School District to provide a solution.
At this time an agreement has been reached by all parties, that the Recreation Division's
programs and staff move to the L Street Youth Center and that the Boys and Girls Club occupy
Lauderbach Community Center for its programs. This exchange will abate the use conflict at the
Youth Center and provide a venue for the Club, District, and City to provide programs and
services. A separate Memorandum of Understanding with the Sweetwater Union High School
· IF
Item , Page 2
Meeting Date: May 16, 2000
District will adjust usage of the Community Youth Center at Chula Vista High School pursuant
to an existing 1988 Joint, Use Agreement (ATTACHMENT D).
The City Attorney's Office has reviewed and approved both the lease agreement and the MOU.
Boys and Girls Club move to Lauderbach
An eighteen (18) year lease at $1.00 per year, with two (2) five (5) year renewal options, has
been negotiated with the Boys & Girls Club for their use of the Lauderbach Community Center.
The term of the lease with the Boys & Girls Club is contemporaneous with the term that the Club
has with the City for the Oleander facility. Under the proposed agreement, the Boys & Girls Club
will be responsible for all utilities, maintenance and repairs at Landerbach Community Center.
The City will continue to maintain the adjacent park and playgrounds. The Oxford Seniors will
remain at Landerbach and the 4-H (AM/PM childcare service) would continue its use for another
year.
The move to Lauderbach by the Boys & Girls Club will provide greater opportunity for service
delivery to the community with program hours available before and during school hours. Current
Youth Center users will have the option of continued access to that facility through City
programs or to go to Lauderbach. The Boys & Girls Club has capability of transporting users to
its various venues.
L Street Youth Center
Under the terms of the proposed Youth Center MOU, the City's Recreation Division and Chula
Vista High School will now share that facility. As a result, the School District will now pay 70%
of the operating costs and the City 30 %.
The City will budget the following with reimbursement for their proportionate share by the District:
· Contractual janitorial services including annual refinishing ofrestroom floors
· Alarm contract
· Annual re-finishing of the gynmasium floor
The District will budget the following with reimbursement for their proportionate share by the City:
· Ground ma'mtenance
· Minor repairs
Major repairs mutually agreed upon
· Cleaning and replacement of dust rugs and floor mats
· Fire extinguisher maintenance
· HVAC maintenance
The District would have use of the facility during school hours from 7:30AM until 3:15 PM.
Certain City programs will be provided by the Recreation Division during those hours and it is
contemplated that Recreation staffwill be present at the facility during the school day. City will
Item_. ~ . , Page 3
Meeting Date: May 16, 2000_
host the District's after school sports programs through the regular use permit process, as
appropriate~ Thc District and City will continue their quarterly joint~user meetings and monthly
meetings with site school and center staff.
This exchange of facilities is a "win-win" for all parties and provides a way to resolve competing
uses, provide continuing service to the community and enable the Recreation Division/Club/High
School to appropriatelyserve their constituents.
FISCAL IMPACT: Thc fiscal impact of the transaction is a net saving to the City of Chula
Vista of approximately $10,000 annually from non-personnel services such as utilities.
Attachments: "A" Lease between the City of Chula Vista and the Boys Girls Club of Chula Vista
"B" Memorandum of Understanding between the City of Chula Vista and Sweetwater Union
High School District
"C" Draft Minutes of the April 20, 2000 Parks and Recreation Commission meeting
"D" 1988 Joint Use Agreement between the City of Chula Vista and Sweetwater Union High
School District
RESOLUTION NO. __
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA AUTHORIZING A LEASE BETWEEN THE CITY OF CHULA
VISTA AND THE BOYS & GIRLS CLUB OF CHULA VISTA FOR USE
OF LAUDERBACH COMMUNITY CENTER
WHEREAS, the City and the Boys & Girls Club of Chula Vista have negotiated an
agreement to lease the Lauderbach Community Center to the Club for a period of eighteen (18) years
with provision for two (2) five (5) year renewals; and
WHEREAS, as a result, the Recreation Division will move its programs to the
Community Youth Center on L Street and enter into a new Memorandum of Understanding (MOU) with
Sweetwater Union High School District; and
WHEREAS, at its meeting of April 20, 2000, the Parks and Recreation Commission
voted unanimously to support both the Boys and Girls Club Lease and the Youth Center MOU.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does
hereby authorize a lease between the City of Chula Vista and the Boys and Girls Club for use of the
Lauderbach Community Center, a copy of which shall be kept on file in the office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized and directed to execute said Lease on behalf of the City of Chula Vista.
Presented by Approved as to form by
David Palmer John M. Kaheny
Deputy City Manager City Attorney
[(H:\home\attorney\reso\boygirls agr (May 11, 2000 (10:37am)]
LEASE AGREEMENT BETWEEN THE CITY OF CHULA VISTA
AND THE BOY'S AND GIRL'S CLUB FOR THE LEASE OF CERTAIN PROPERTY AT
LAUDERBACH COMMUNITY CENTER AT LAUDERBACH PARK
THIS LEASE AGREEMENT is made and entered into this day of May,
2000 between the City of Chula Vista, a Municipal Corporation, as lessor, hereinatter called
"City," and the Boys & Girls Club of Chula Vista, Inc., a California non-profit corporation, as
lessee, hereinafter called "Club;"
RECITALS:
WHEREAS, the City owns certain property, including all improvements located
upon the property, at Lauderbach Park in the City of Chula Vista.
WHEREAS, the Club desires to lease said property to conduct its Community
Youth Center for the purposes of providing primarily the youth, and secondarily the Chula
Vista community in general, with a recreational, childcare, and educational facility and
corresponding projects and programs intended to promote their physical, mental, and moral
well being; and
WHEREAS, the activities offered by the Club benefit the community.
WITNESSETH:
City hereby leases to Club and Club hereby leases f~om City, certain property
hereinafter described under the following terms and conditions:
1. Subject Premises. City leases to the Club a certain part of a parcel of
real property, together with all current improvements thereon, situated in the City of Chula
Vista, County of San Diego, State of California, commonly known as Lauderbach Community
Center, Chula Vista, as follows:
a. The Club shall have the use and occupancy of the Community Center
building in its entirety as well as access to the park area and playgrounds. One playground
may be fenced by the Club for such licensing requirements as may prevail, with the
understanding that the general public will have access during those times that the Club is not
using the subject playground. City will have continual access and responsibility for
maintenance and repair of said playground and equipment to insure public safety.
b. It is further understood that the Oxford Seniors Club will continue to
have the use of the assembly hall and kitchen for its regular meetings and events. The Oxford
Seniors Club would continue to have reasonable storage.
c. It is further understood that the 4 - H Club of San Diego will continue
to have occupancy of the classroom on weekdays to conduct pre and after school programs for
period of one (1) year fi.om the date hereof.
d. Other community user groups will request use of the building through
the Club's process. Any groups wishing to rent the facility will do so through the Club with all
proceeds fi.om these rentals being retained by the Club.
e. The facility will provide operational hours beginning no earlier than
6:00 a.m. and extending no later than 11:00 p.m. in accordance with the wishes of the adjacent
dwellings.
f. The City shall remove all non-affixed equipment agreed upon by the
Club and City, equipment left by the City for the use of the Oxford Seniors and 4-H Program
will bear the City's inventory numbers and be accotmted for yearly.
2. Term. The initial term of this lease shall expire June 1, 2018, unless
sooner terminated by the destruction of Subject Premises, as herein defined, or otherwise as
permitted by this Agreement.
a. The Subject Premises shall be deemed destroyed for the purpose of
terminating this Lease at such time as (1) the improvements thereon are, in whole or in part,
ruined by a calamity or a progressive degenerative process, such as rot, termites, etc., and, (2) the
amount the City receives as compensation for the damage fi.om an insurance source or the Club
exceeds the City's estimate of the cost of the repair. If the Subject Premises are deemed
terminated, the City may retain all of the proceeds for the damage fi.om the insurance source.
Nothing herein shall be deemed to relieve the Club for damage to the premises they may have
otherwise caused.
b. lfthe improvements on the Subject Premises are, in whole or in part,
ruined by a calamity or a progressive degenerative process, the City shall be under no duty to the
Club to provide substitute or replacement facilities or premises during any repair or
reconstruction of the Subject Premises, or to pay the rental value thereof, regardless of cause of
the damage to the Subject Premises.
c. Extended Term. Upon the expiration of the Initial Term, the Club may
request to extend the term of the lease for two (2) successive five (5) year periods. The Club
shall exercise the extension option by written notice to and approval of the City, such notice to
be provided no later than ninety (90) calendar days prior to the expiration of the lease term then
in effect. Unless otherwise mutually agreed by the parties in writing, the terms and conditions of
this Agreement shall remain in effect during the Extended Term. Prior to the granting of any
extension period, however, the City shall review the Club's operations at the facility, which shall
include the Club's provision of programming, and the extent to which it is designed to meet the
needs of youth and the community, and which shall further include the nature and extent to
which the Club has adequately maintained the facility, or other wise contributed to the cost of
2
said maintenance, and which shall further include a review of the advantages and disadvantages
from continuing to permit the Club to operate at the facility.
d. Holdover Tenancy. In the event the Club elects not to extend the Term
but retains possession of the Premises upon the expiration thereof, with the Cityr s consent the
Club's tenancy shall be converted to a month to month arrangement, subject to termination by
the City upon one (1) months written notice, but otherwise on the same terms and conditions
then in effect.
e. The City reserves the right to require the Club to vacate the premises
and to terminate this lease anytime during the course of the Agreement upon six (6) months
written notice. However, if the Holdover Tenancy has been triggered, Paragraph 2.2 shall
prevail.
3. Rent. Club agrees to pay to City as rental for Subject Premises the sum of
$1.00 per year payable on the 1st day of June of each year during the term hereof; and in addition
hereto, Club agrees to do and perform the other covenants and agreements in this lease contained
each of which shall be considered as additional rent.
4. Purpose. Club shall use the Subject Premises solely for the following
purposes, to wit: maintaining and operating thereon the Lauderbaeh Community Center building
and the use of the playgrotmd(s) and park for use as a service, educational, licensed childcare,
and recreational center for young people and other members of the community residing in the
South Bay area according to the standards of the Club and for all reasonable and lawful purposes
incidental thereto including traditional fundraising activities. The Club agrees to use Subject
Premises solely for the purposes herein stated. Any other use by the Club without the written
consent of the City shall be cause for termination of this agreement upon 30 days notice to vacate
the premises.
5. Responsibility of Club.
a. Club shall keep the Subject Premises, building and the property
upon which the building is situated, free from any liens arising out of the work performed,
materials furnished, or obligations incurred by Club. Failure to keep Subject Premises free of
liens shall constitute a major breach, and default, oftbe covenants of this agreement and grounds
for termination by City, at City's sole option. It is intended by the parties hereto that City has no
obligation, in any manner whatsoever, to repair and maintain the Subject Premises nor the
structural improvements, including any buildings, now located or to be constructed thereon, nor
the equipment now located or to be constructed therein, whether structural or non structural,
unless otherwise provided for in this Agreement. Club expressly waives the benefit of any
statute now, or hereinafter in effect which would otherwise afford Club the right to make repairs
at City's expense or to temfinate this Lease because of City's failure to keep the Subject Premises
in good order, condition and repair.
b. Club hereby covenants and agrees that all utilities and services
necessary for the use and occupation of Subject Premises shall be provided and paid for by Club.
c. Club shall not make any improvements or additions to the building
and Subject Premises without prior written approval of the Director of Parks and Recreation.
Said improvements and additions shall include, but not be limited to, changes to the exterior or
interior, room additions, signs, and new plantings. The Club may, however, place 'Boys & Girls
Club" signage consistent with and similar to the sign erected at the Chula Vista Youth Center.
The Club shall remove at their expense the existing signage at the Chula Vista Community
Youth Center.
d. Pursuant to the provisions of Section 107.6 of the Revenue and
Taxation Code, the property interest which is the subject matter of this lease may be subject to
property taxation and that the Club, as lessee, may be subject to the payment of such property
taxes levied on such interest. Club shall be liable for and shall pay, at least ten days before
delinquency, taxes levied aga'mst any personal property or fixtures placed by Club in or about the
Subject Premises. Further, Club shall be obligated to pay any and all other taxes, including but
not limited to possessory interest tax, which may be l~om time to time assessed upon the facility.
The failure of Club to pay such levied tax, resulting in the establishment of a tax lien by any
taxing agency, shall constitute a major breach, and default, of this lease and constitute grounds
for recovery of possession by City.
c. Club agrees to accept full responsibility for the maintenance and
repair of Subject Premises, excluding landscaping in park areas. In addition the Club will assume
the balance of the alarm monitoring contract obligation, as well as the contractual janitorial
maintenance. Club shall, at Club's sole cost and expense, keep the Subject Premises and every
part thereof in good condition and repair, comparable to other property held by the City in the
general vicinity. Club shall, upon the expiration or sooner termination of the term hereof
surrenders the Subject Premises to City in the same condition as when received. City shall have
no obligations to alter, remodel, repair, decorate, or pa'mt the structures located upon the land
which is the subject of this lease. The City shall have the right to enter upon the premises to
conduct inspections of the premises as it deems necessary and in no event less than twice
annually. The City shal! continue to maintain the adjacent park areas.
fi Anti-Discrimination
Club, for itself and its successors and assigns, agrees that dur'mg the
occupancy and use of the Subject Premises, Club will not, with respect to its operation of the
Subject Premises, discriminate against any person because of race, color, creed, religion, sex,
sexual orientation, marital status, age, handicaps, ancestry or national origin. In addition, Club
agrees to continue current status of compliance of the Subject Premises with the requirements of
the Americans With Disabilities Act, and regulations promulgated thereunder.
6. Parking. Club agrees to allow City access to the parking lot and shall not
unreasonably restrict the use thereof by the general public and shall not create more than five (5)
reserved spaces for the sole use of the club.
7. Compliance with Laws and Regulations. Club agrees to maintain and
operate Subject Premises in compliance with all laws, rules and regulations applicable thereto.
a. Club agrees to provide City reasonable access to the Premises to
allow City staff or a designee of the City to perform any renovations necessary to comply with
the Americans with Disabilities Act.
b. Renovations undertaken by City to comply with the Americans with
Disabilities Act shall be funded by the City.
8. Termination.
a. In the event that Club fails to maintain and operate Subject
Premises for the principal purpose for which the same are hereby demised or fails to maintain
reasonable and adequate supervision and maintenance of Subject Premises or further fails to
remedy any such faults or defects within 30 days after written notice to do so fi.om the City, then
City may elect to terminate and cancel this lease.
b. All of the conditions and covenants contained herein to be
performed by Club shall be deemed to be conditions of Club's right to possession of the Subject
Premises, and if after 30 days written notice to Club, any default in said conditions is not
remedied or corrected or performed to City's satisfaction, City shall have the right to re-enter the
Subject Premises, remove Club and retake possession thereof.
c. In the event that Club abandons Subject Premises, the City may
elect to terminate this lease. Abandonment is herein defined to include, but is not limited to, any
absence of Club fi.om the Subject Premises for fifteen (15) days or longer while in default of any
provision of this lease except where excused by law or circumstances beyond Club's control.
d. City ~nay terminate this Lease Agreement at any time and for any
reason, by giving specific written notice to Club of such termination and specifying the effective
date thereof, at least ninety (90) days before the effective date of such termination.
9. Representatives of Parties to Agreement. The following are designated as
representatives of parties to this agreement:
a. City designates the Director of Parks and Recreation as its
representative in all matters under this contract (except execution hereof) and all notices given to
the City shall be so addressed to the above designated representative at 276 Fourth Avenue,
Chula Vista, CA 92010.
5
b. Club designates its President as the representative under this
contract and all notices sent to Club shall be addressed to the above designated representative at
1301 Oleander Avenue, Chula Vista, CA 91911
10. Assignment. Neither this agreement nor any duties or obligations
hereunder shall be assignable by Club without prior written consent of the City, which consent
may be withheld in the discretion of the City. In the event of an assignment by Club to which
the City has consented, the assignee or its legal representative shah agree in writing with the City
to assume, perform, and be bound by the covenants, obligations, and agreement contained herein.
Any consent to an assignment shall not, in the absence of express provisions to the contrary,
constitute a release of the Club from the provisions of this Agreement.
11. Successors and Assigns. Subject to the provision regarding assignment, this
agreement shall be binding on the heirs, executors, administrators, successors, and assigns of the
respective parties.
12. Attorney's Fees. If any action at law or inequity is brought to enforce or
interpret the provisions of this agreement, the prevailing party shall be entitled to reasonable
attorney's fees in addition to any other relief to which it may be entitled.
13. Modification of Agreement. This Agreement may be amended by reason of
changes in the scope of the purpose as described herein and the amount of any adjustment shall
be determined by negotiations to the mutual satisfaction of the City and Club. Said amendments
must be in writing.
14. Indemnity, Insurance, and Disclosure
a. Indemnity.
Club shall indemnify and hold harmless City from and against any and all
claims arising from Club's use of the Subject Premises (including specifically, but not limited to,
deposit of toxic or hazardous material in or about the Subject Premises, or uses of such material
in any structure on the premises) or from the conduct of Club's business or from any activity,
work or things done, permitted or sufl~red by Club in or about the Subject Premises or elsewhere
and shall further indemnify and hold harmless City from and against any and all claims arising
fi:om any breach or default in the performance of any obligation on Club's part to be performed
under the terms of this Lease, or arising from any negligence of the Club, or any of Club's
agents, contractors, or employees, and from and against all cost, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or any action or proceeding brought thereon;
and in case any action or proceeding be brought against City by reason of any such claim, Club
upon notice from City, shall defend the same at Club's expense Club, as a material part of the
consideration to City, hereby assumes all risk of damage to property or injury to persons, in,
upon or about the Subject Premises arising fi:om Club operations and Club hereby waives all
claims in respect thereof against City.
6
b. Exemption of City fi'om Liability.
Club hereby agrees that City shall not be liable for injury to Club's
business or any loss of income therefrom or for damage to the goods, wares, merchandise or
other property of Club, Club's employees, invitees, customers, or any other person in or about the
Subject Premises, nor shall City be liable for injury to the Club, Club's employees, agents or
contractors, whether such damage or injury is caused by or results from fire, rain, water, steam,
electricity, gas, or from the breakage, leakage, obstruction or other defects of the land, grading,
elevation of the land, pipes, wires, appliances, plumbing, or from any other cause, whether the
said damage or injury results from conditions arising upon the Subject Premises or from other
sources or places and regardless of whether the cause of such damage or injury or the means of
repairing the same are inaccessible to Club. City shall not be liable for any damages arising from
any act or neglect of any other tenant, if any, of the land adjacent to the Subject Premises leased
by City.
c. Liability Insurance.
Club shall, at Club's expense obtain and keep in force during the term of
this lease a policy of Bodily Injury insurance insuring City and Club against any liability arising
out of the ownership, use, occupancy or maintenance of the Subject Premises and all areas
appurtenant thereto. Such insurance shall be a combined single limit policy in an amount not
less than $1,000,000 per occurrence. The limits of said insurance shall not, however, limit the
liability of Club hereunder.
d. Property Insurance.
Club shall obtain and keep in force during the term of this Lease a policy
or policies of insurance covering loss or damage to the Subject Premises, in the amount of the
full replacement value thereof, as the same may exist from time to time, which replacement
value is now $500,000, but in no event less than the total amount required by lenders having
liens on the Subject Premises, against all perils included with the classification of fire, extended
coverage, vandalism, malicious mischief, and special extended perils ("all risk" as such term is
used in the insurance industry). Said insurance shall provide for payment of loss thereunder to
City and to the holders of mortgages or deeds of trust on the Subject Premises. If the Club shall
fail to procure and maintain said insurance the City may, but shall not be required to, procure and
maintain the same, but at the expense of Club. If such insurance coverage has a deductible
clause, the deductible amount shall not exceed $1,000 per occurrence, and Club shall be liable
for such deductible amount.
c. Insurance Policies.
Insurance required hereunder shall be in companies holding a "General
Policyholders Rating" of at least A, or such other rating as may be required by a lender having a
lien on the Subject Premises, as set forth in the most current issue of "Best's Insurance Guide."
The Club shall deliver to the City copies of policies of such insurance or certificates evidencing
7
--I the existence and amounts of such insurance with loss payable clauses as required by this
Section. No such policy shall be cancelable or subject to reduction of coverage or other
modification except after thirty (30) days prior written notice to City. Club shall, at least thirty
(30) days prior to the expiration of such policies, furnish City with renewals or "binders" thereof,
or City may order such insurance and charge the cost thereof to Club, which amount shall be
payable by Club upon demand. Club shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in this Section. If Club does or permits to be done
anything which shall increase the cost of the insurance policies referred to in this Section, then
Club shall forthwith upon City's demand reimburse City for any additional premiums attributable
to any act or omission or operation of Club causing such increase in the cost of insurance. All
insurance policies shall name the City as an additional insured.
f. Waiver of Subrogation.
Club and City each hereby release and relieve the other, and waive their
entire right of recovery against the other for loss or damage arising out of or incident to the perils
insured against under this Section, which perils occur in, on or about the Subject Premises,
whether due to the negligence of City or Club or their agents, employees, contractors and/or
invitees. Club and City shall, upon obtaining the policies of insurance required hereunder, give
notice to the insurance carrier or carders that the foregoing mutual waiver of subrogation is
contained in this Lease.
g. Amendment
The amount of coverage required by the City pursuant to this agreement
may be amended by the City upon 180 days notice to Club. Failure of Club to maintain said
policy shall be grounds for termination of this lease.
h. Lead Disclosure
The parties acknowledge that pursuant to the Code of Federal Regulations,
Section 745.223, that the Club facility may constitute a Child-occupied facility, defined by the
Code as follows: A building, or a portion of a building, constructed prior to 1978, visited
regularly by the same child, six (6) years of age or under, on at least two different days within
any week (Sunday through Saturday period), provided that each days visit lasts three (3) hours
and the combined weekly visits last at least six (6) hours, and the combined annual visits last at
least sixty (60) hours. Child-occupied facilities may include, but are not limited to, day-care
centers, preschools and kindergarten classrooms. The parties understand the goal of the Lead-
Based Paint Poisoning Prevention Act (42 U.S.C. Section 4821-4846) is to eliminate, as far as
practicable, the hazards of lead-based paint poisoning with respect to properties that may be
occupied by children under 7 (seven) years of age.
8
The Club agrees to take all reasonable precautions and to use reasonable
care in the Subject Premises in light of the above.
h. Asbestos
The city knows of no ~iable asbestos in the Subject Premises.
15. Subleases.
Club shall not sublease any portion of the building or Subject Premises without
prior written approval of the Director of Parks and Recreation.
16. Entire Agreement.
This Agreement supersedes any prior agreement and contains the entire
agreement of the Parties on the matters covered. No other agreement, statement or promise
made by any Party or by any employee, officer or agent of any Party that is not in writing and
signed by all Parties shall be binding.
17. Governing Law
This Agreement has been executed in and shall be governed by the laws of the
State of California.
18. Invalidity
If any term, covenant, condition or provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void or enfomeable, the remainder of the provisions
hereof shall remain in full rome and effect and shall in no way be affected, impaired or
invalidated thereby.
19. Waivers
The waiver by one Party of the performance of any covenant, condition or
promise shall not invalidate this Agreement, nor shall it be considered a waiver by him of any
other covenant, condition or promise. The waiver by either or both Parties of the time for
performing any act shall not constitute a waiver of the time for performing any other act or an
identical act required to be performed at a later time. The exercise of any remedy provided in
this Agreement shall not be a waiver of any consistent remedy provided by law, and any
provision of this Agreement for any remedy shall not exclude other consistent remedies unless
they are expressly excluded.
20. Condemnation.
9
If the Subject Premises or any portion thereof are taken under the power of
eminent domain, or sold under the threat of the exercise of said power (all of which are herein
called "condemnation"), this Lease shall terminate as to the part so taken as of the date the
condemning authority takes title or possession, whichever first occurs.
(end of page. Next page is signature.)
10
1N WITNESS WHEREOF, the parties have executed this lease the day and year first
above written.
Dated: City o f Chula Vista
by:.
Shirley Hortorg Mayor
Attest:
Susan Bigelow
City Clerk
Approved as to Form:
John M. Kaheny
City Attorney
-1 BOYS & GIRLS CLUB
RESOLUTION NO. __
RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF CHULA
VISTA APPROVING A MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF CHULA VISTA AND THE SWEETWATER
UNION HIGH SCHOOL DISTRICT FOR USE OF THE COMMUNITY
YOUTH CENTER
WHEREAS, the City and the Boys & Girls Club of Chula Vista have negotiated an
agreement to lease the Lauderbach Community Center to the Club for a period of eighteen (18) years
with provision for two (2) five (5) year renewals; and
WHEREAS, as a result, the Recreation Division will move its programs to the
Community Youth Center on L Street and enter into a new Memorandum of Understanding (MOU) with
Sweetwater Union High School District; and
WHEREAS, at its meeting of April 20, 2000, the Parks and Recreation Commission
voted unanimously to support both the Boys and Girls Club Lease and the Youth Center MOU.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does
hereby approve a Memorandum of Understanding between the City of Chula Vista and the Sweetwater
Union High School District for use of the Community Youth Center, a copy of which shall be kept on file
in the office of the City Clerk.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby
authorized and directed to execute said Lease on behalf of the City of Chula Vista.
Presented by Approved as to form by
DDea~iudtyP~litr~e~anager ~thyn~l~;rKna~eny ~ - U
[(H:\home\attomey\reso/CYC agr (May 5, 2000 (1:45pm)]
MEMORANDUM OF UNDERSTANDING
BETWEEN CITY OF CHULA VISTA AND THE
SWEETWATER UNION HIGH SCHOOL DISTRICT
FOR COMMUNITY YOUTH CENTER USE
This Memorandum of Understanding ("MOU") is entered into by and between the City of
Chula Vista ("City") and the Sweetwater Union High School District ("District") as of
,1999.
RECITALS
WHEREAS, City and District entered into an agreement dated September 1, 1988 entitled
"Ground Lease and Joint Use Agreement" (Joint Use Agreement) for the construction and
use of the Community Youth Center (Youth Center), a copy of which is attached hereto and
made a part hereof and specifically incorporated heroin; and
WHEREAS, the Joint Use Agreement provides for the mutual agreement of the parties to
scheduling use and hours thereof; and
WHEREAS, the parties wish to clarify certain other provisions relating to use and
maintenance oftbe Youth Center, and
WHEREAS, it is in the interest oftbe parties to cooperate for the benefit of the community;
NOW THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained, the parties agree as follows:
1. The Districts use of the Youth Center shall be from 6:00 A.M. to 3:15 P.M. and
concurrent with the school day or as may be amended pursuant to the Joint Use
Agreement. This does not preclude use after those hours for organized activities and
athletic events scheduled through the Chula Vista Department of Parks and Recreation.
2. The City would have the option to have staff in attendance at the Center during the
school day aforesaid and by mutual consent engage in programs which do not interfere
with District use.
3. The non personnel costs of operating the Center shall be divided between the parties;
thirty percent (30%) of the costs to be paid by the City; and seventy percem (70%) of the
- costs to be paid by the District.
1
4. The costs would be budgeted as follows:
The City will budget the following with reimbursement for their proportionate
share by the District:
a~ Contractual janitorial services including annual refinishing of restroom floors
b. Alarm contract
c. Annual re-finishing of the gymnasium floor
The District will budget the following with reimbursement for their proportionate
share by the City:
a. Ground maintenance
b. Minor repairs under $500.00
c. Major repairs over $500.00 mutually agreed upon
d. Cleaning and replacement of dust rags and floor mats
e. Fire extinguisher maintenance
f. HVAC maintenance
5. The City will maintain a log of service requests and a calendar of all facility usage. The
City will maintain locks and issue all keys to the facility.
6. Regular meetings, not less than monthly, will be held between representatives of the
parties for operational and maintenance issues resolution; capital improvements
exceeding $500.00 will be determined at quarterly meetings convened for that purpose.
7. Except as otherwise provided herein, all other terms and conditions, covenants and
undertakings as contained in the original Joint Use Agreement shall cominue in full force
and effect.
&The term of this agreement shall be for one year from the date hereof but shall
renew from year to year unless the parties elect to change any provision hereof.
Approved:
andrew B. Campbell Date
Assistant Superintendent of
Planning and Facilities
David Palmer Date
Deputy City Manager
2
CITY OF CHULA VISTA
PARKS AND RECREATION COMMISSION
Minutes
Thursday - 6:30 p.m. April 20, 2000
PSB Conference Room 1 276 Fourth Avenue
1. ROLL CALL Chair Palma P , Vice Chair Cochran P , Commissioners Dennison P ,
Radcliffe 6:40pm , Rude P , Salcido P ,Weidner EA .
2.APPROVAL OF MINUTES -
MSC (Salcido/Dennison) to approve the minutes (5-0-2; Weidner, Radcliffe absent).
3.COMMISSIONER'S COMMENTS
Chair Palma distributed invitations to the Beautification Awards banquet. He said he would save a
table for any Commissioners interested in attending.
Member Rude asked about the status of the recruitment for the new Director of Parks &
Recreation.
4. PUBLIC HEARINGS OR REMARKS -
5. REPORTS -- FOR INFORMATION ONLY - Tabled
Otay Valley Regional Park John Willett
Member Radcliffe arrived at this time. She asked that a correction to the Minutes of March 16,
2000 be made to reflect that she was present at that meeting.
ACTION ITEMS
6. Unfinished Business
a. Parks and Recreation Master Plan
Deputy Director Palmer noted that things are going well with the Master Plan. They are close to
presenting the plan and hopeful everything will be done by Labor Day.
b. Update on selling beer in City parks
Deputy Director of Parks Foncerrada repoded to the Commission that he had been in touch with
the City Attorney, who reviewed the ordinance regarding selling alcohol in the parks. In reviewing
the ordinance it was found that when the ordinance was revised the wording was not clear enough
to exclude selling alcoholic beverages in the park.
Assistant Recreation Director Shy said staff would be coming back with an ordinance change
- since the City has many grants in the City to discourage the consumption of alcohol. Deputy
Director Foncerrada said the ordinance would be coming back to the Commission in
approximately 3 months.
c. Lease/Joint Use agreement for Boys and Girls Club/Lauderbach Center ~
Assistant Recreation Director Shy handed out an overview of the programs and services that the
Center anticipates providing. Also included in the packet was a copy of the Lease/Joint Use
Agreement.
MSC (Radcliffe/Rude) to support the proposal and all that goes with it (6-0-1; Weidner
d. Update on Parks staffing report
Deputy Director of Parks Foncerrada reported to the Commission that Council approved the
staffing report at their meeting, of April 11. Included in the report was the hiring of 1 Supervising
Park Ranger, 3 Gardeners, and 1.2 Season Gardeners to work weekends only. Along with the
increase in staff (to be hired ASAP), .68 peresons/acre will added as new parks come on line.
7. New Business
a. Goals and Objectives for Department
Deputy City Manager Palmer gave a brief presentation on the department's goals and objectives,
included in the packet
MSC (Radcliffe/Rude) to accept and support the
b. FY 2000-01 Department Budget & Parks and Recreation Commission Budget
Deputy City Manager Palmer presented the Commission budget for the upcoming fiscal year.
MSC (Cochran/Radcliff) to request additional funds for one person to attend the annual
CPRS conference (5-0-1; Weidner absent).
Deputy City Manager noted that additional staff added in the P & R budget included: 2 Landscape
Architects, 2 Landscape Planners and 1 Landscape Inspector. There will also be adequate
staffing at the pools now that two .5 leads have been added, along with additional lifeguards.
There are now complete crews for the park maintenance division.
MSC (Radcliff/Rude) to accept and support the proposed budget as presented (5-0-1;
Weidner absent).
c. Location of May Meeting
Deputy City Manager Palmer noted the May meeting would be held at the Mercy Building
conference room.
8. WRITrEN COMMUNICATIONS:
STAFF COMMENTS
Assistant Director of Recreation Shy noted she and staff were in the process of moving to the
Mercy Building. She also noted that the Stretch and Dash program won the Helen Putnam award.
10. OTHER
ADJOURNMENT AT 8:10 P.M. to the regularly scheduled meeting of May 18, 2000.
ATTACHMENT ~.~
GI~OUND LEA~E ~ ~021~T USE AGR£EHENT
Ti~ C~T~ OF CHULA VISTA A~D SW£L'TIQATER UH20N HIGH SCHOOL D~STR2CT
REGARDING YOUTH FACILITY AT CHULA ¥ISTA HIGH SCHOOL
THIS ~ROUND LEASE AXD ODINT USE AGR£D(~NT is entered into on
this lst~ efSe~t~b~:~, lg88, ~en ~e CITY ~ CHULA VISTA,
~~~fe~ ~ as t~ , I~d ~e ~[~A~R UN~ON HIGH SCHOOL
DISC%CT, ~l~f~r ~fe~d ~ as 'Olstr~ct'.
I~EREAS, · peed for ¢om~un~t~ VouCh act~v~t~ facilities exists tn the
~e(ghborhoods Of ~ester~ Chu~a V~sta ~ch ts of concern to both the :~:~ and
~e O~strtct; and.
~RE~, ~e d~scont(nuance of the Bo~s' Club fac~l~t~ at 4~5
S:~e~ t~ Chula Vtsta to acc~date expans~on/~novat~on of the :~a V~s:a
~opp~ng Center ~11 farther exacerba:e ~at need; and,
~ERE~, fu.ds ex~st under the co. tro~ of the t~t~ ~ch can be used
for ~e p~v~s~on of a VouCh fac~l~t~ to replace sa~d Bo~s' Club fac~lft~; and.
~E~, a s~te ex(sts on the ca~pus of :hula V~sta Hfgh Scho~ ~h~ch
could acc~date such a ~ou:h facility; and,
~ER~, ~e develo~n: of such a fac~l~t~ a: sa~d s~te wou~d create'
in opportu~tt~ for use ~ch wou~d be of beheld: to the D~str~ct and
D~str~ct's students; and,
~ERE~, ~e ~ve~o~t of such a fac~l~t~ at sa~d s~:e ~ou~d
enhance ~e c~ntt~ ~outh act~v~t~ facilities for western Chu4a
~s~red b~ ~e
~ITNESS~H:
~ts agent ~s ~de u~n ~e fo~l~tng ~s and conditions:
' ~e ~ of ~ts G~und Le~se and Oo~nt Use ~r~nt shall c~nce on
~ 1st d~ of ~pt~r , 19~, and shall exptre on ~e
of ~ . ~ua~ agent of ~e Ctt~ and ~e ~lstrlct,
~ts agre~nt ~ ~ ex~nded for an additional ~n~ years ~ ~e
~ and conditions ~gh ~St~n notification of the Otstrlct b~ ~e
Gr~Jnd Lease: District does hereby rent unto City and City
~nts fr~ Oistrict that certain real property situated in the
City of Chula Ytsta, State of California. and cornmonly described
~: City shall ~y ~ ~e District is and for the
· pro~rty Subject ~ ~ts ,gre~nt ~e sum of
$l.~ ~r ~ear for each and every year so lon9 ,s tenancy
~nti~es. ~ch tnstall~nt of ~l shall .be paid (n ~dvance
~ ~e anniversary date of ~e execution of this ogre~ent to
~e ~e~lbr ~ion Ht~ ~hoD1 District, ll)O Fifth Aven~e,
~ula Yts~. Caltfo~ta 92Dll.
~: )f Iny renU1s shall ~ due or unpaid, or if default
~e in any of the provisions othe~ise contained
~re(n on ~e part of the City to be observed In~ perfo~eU,
~strtct ky exercise Iny and al) mdies provided b~ )aw or
~utV by ~ason of such ~efa~lt, (~luding* the right at
District') option of te~inating ~is Unanc~.
[vents of ~feult: The failure or ~fs~ioO of District to
~inate ~is )ease for any violation of any of its ter~s,
conditions, or covenants, shall tn no way be dee~d to be a
consent by District to such violation and shal) (n no way bar,
~top, or prevent Oistrtct fr~ te~inating this lease
~ereafter, either for such or for any subsequent violation of
,ny such ~, condition or covenant. The acceptance of rent
hereunder shall not be or be construed to be a waiver of any
te~, covenant or condition of ~ts lease.
DEStGN~ CONS~UCTION~ AND DISPOSITION OF IMPROVEMENTS
Youth Facility: The City shall construct m youth facility on
~e Chula Vista High School campus on ~e property subject to
6round Lease under ~ctton A above, ~at youth facility to be
mpproxtmtely 14,000 $qua~ feet of buildtn~ space with
mss~(m~d parking. The facility ts conceptually planned to
include ~ ~ast~ ~ one s~ndard-sfze main baske~all court
mhd ~ practice baske~all courts ~r~ndtcular ~ ~fn court.
an m~lntstrmtive office, ~ activity/craft ~, one of ~ich
~uld ~ ~ufp~d ~ Ice--date dance cllsse$, ~nd boys' and
Qtrlj'
-2-
:~. ConstruCtion:
Factltt Dost n and Subse~uen~ to cons-ltat~on
~mong ~e ~ls~r~c~, ~ne ~cy, and ~tential yout~ service
p~vl~r ~nants, included at ~e ~ption of ~e City, the youth
L facility wtll ~ ~stgned mt no cost ~ ~e District b~ a
) ~mltfted ~httect. In oddttion ~ review and mpproval by the
~tV ~st~n bvt~ ~tttff and ~e City Council, the design
~all W subject ~ app~vml by ~e District. .In Idditton to
Ill ~gullr ~lty Ipprovil pr~esses, ~e construction plans
~lll be s~Ject ~ ~e ipp~val of ~e S~te Irchttect Ind be
tn ~nfomtV wi~ ~e ~U~ Educational Field ~t.
3. ~n ~m(~tton of the ground lease and any extensions of that
le~se, ill pro~rty t~rov~nts r~m(n(ng on the pro~rty shall
~c~ ~e p~rty of ~e ~istrict.
C. ~OINT USE
1. Use
~: *The ~lty or its flciltty lessees shall have full use of
ficiliV during all non-school hours except as ~e~ise
4greed upon. The City or its lessees shall also have use of the
fac(ltty during school hours only for 4~inistr~ttve functions
~l~ted ~ ~e facility and for ~intenance functions other than
cus~dtal, routine or e~rgency. Notwithstanding the above, all
~s of uses by ~e City would be subject to all C~l!fornia
State Educational Code sections regarding use of School
f4ctltt(es and woul~ be subject to Distrtct approval, that
approval not tO be unreasonably withheld by the District.
District: The ~istrict would have full use of the facility
~chool hours. As mutually agreed upon by the Ctt~ and
~e District, t~e District may also use the facility during
ceftin after-school hours and certain hours of ~e ~my during
s~r vacation. It ts anticipated ~at ~e District will
desl~ ~ conduct athletic team practices and intramural
i~lettc c~petttton tn ~e facility during after-school hours.
go~t~s~ndlng ~e Ibove, all ~s of uses by ~e District
Kuld be subject to City mpprov~l lad would be limited to those
ipproved by ~e Cl~ 4s not ~yslcally detr(~ntil ~ the
fica I t ~.
~neral: Prohibited ty~s of uses for bo~ the Agency Ind the
~ KulU tnclu~, but not ~ limited ~, partisan
~litlcal functions, den~tnattonal religious services, and
functions involving ~e serving or cons~ptton of alcoholic
~ve~ages.
'School hours' shall be defined as constituting fro~ the opening
to the closing of the rtgular session School day at Chula Vista
High School, from 7:30 a.m. to 2:25 p.m., Monday through Friday,
from September 12 to June 22. If those school hours are amended
in the fatureo any alteration of t~e hours or dates of full use
of the facility by the District to correspond to those altered
school bouts shall be subject to mutual agreement by the City
~d by the District.
Schedulfn$ of Use
&. School 1'ear: Use of the facility by the District during
the regular school year (September through June) shall be
scheduled annually by mutual agreement of the City Director of
Parks and Recreation, the District Director of Support Services,
and the Chula Vista High School Principal no later than the
preceding Nay 1.
b. Stnm~er School: Use of the facility by the District during
Sun.er School (dune through August) shall be scl~eduled annually
by mutual agreement of the City Director of Parks and
Recreation, the District Director of Support Services, and the
Chula Vista High School Principal no later than the preceding
April l.
Custodial Services: The District shall provide all custodial
services for the subject facility and shall 'maintain" the
facility at all times in a clean, orderly an.d usable condition.
'Custodial Services' shall mean cleaning the facility, restoring
it daily to an orderly condition, and ~aking minor repairs in
order tO maintain the day-to-day serviceability of the facility.
The City shall be responsible for the cost of custodial services
for the subject facility in an amount proportionate to the use
by the City and its facility lessees. The City shall reimburse
the District on an annual basis in arrears for the custodial
services for which the City is responsible and which the
District has provided. The City's p~oporttonate Share shall be
determined annually by mutual agreement of the City Director of
Parks and Recreation, the District Director of Support Services,
and the Chula Vista High School Principal and shall be based on
records of usage maintained by the City and the District.
Reimbursement to the District shall be based on actual rate of
cost to the District for custodial services for the subject
facility. The District Shall be resPOnSible for the cost of
CUStodial services related to its use of the facility.
The District shall make the Agency immediately .aware of .any
deficiencies in the facility which are observed by the
District's custodial staff and which could have a detrimental
-4-
effect o~ ~:he c~ndttton or longevity of the bu(l~ing or
e~utpment or fixtures within the facility or ~ich could pose
-- ~ml~ or safet~ huards ~ faciltt~ occupants or ~e general
~ltc.
4. ~r~~nce and ~ latent: 'The C~ sha~l be
~s · ~ ~ m n~nance and ~plac~n: of the
~c~1~ far ~e ~m ef ~tS a~nt. The D~str~ct shal~ be
~nslble for ~urs~nt ~ ~e
~ral mtn~nance and ~plac~nt of ~e
~ D~strtct er 1ts a~nts ar lessees causes ~amge or e~cess~ve
~ar and ~ar as ~a11~ agr~ u~n b~ ~e
Pa~s an~ ~c~atton, ~ D~str~ct D~rector of ~pport ~rvfces,
and ~e Chula V~s~ ~tgh ~hool Principal. ~ch re~urs~en:
~all ~ m~e ~n ~ ~a~s of notification
~ Ctt~ rallying ~neral m~ntenance or replace~n:.
S. Utilities: ~e C~t~ shall contra~t for ut~11t~ services of gas,
electric, ~a~r and s~er for ~e fac~l~:~, and Sh~l ~e
~s~nstble for ~nt of ut~l~t~ charge b~11(ngs. U:(I~:~
settee costs shall be share~ b~ the
p~rt~ona~ to res~ct~ve fac(~t~ usage. The proport~onate
shares Shall be dete~ne~ annual~ b~ ~tual agre~n: of the
C~ty O~c~r of Parks an~ Recrea:~on, the D~str~ct
~ ~p~rt ~rv~ces, and ~e Ch~a Y~s~ H~gh
~all be based on ~cords of usage ~fn:afned
~e D~str~ct. ~e Dfstr~c: s~all ref~urse
annual bas~s tn arrears for ~e des(gna:ed proportionate S~re
- of utility costs.
G~R~ PROVES ~O~S
1. ~nd~f~cat(on: C~t~ and D~str~ct agree to ~ndemn(f~ an~ save
free and has'ess each o~er and each other's authorized agents,
off~cers, and ~plo~ees or ~e City's sublessees
11abilities and an~ costs and expenses tncurred b~ e~ther part~
or ~eir au~ortzed agents, officers, and Kployees on account
of any claim or lawsuits iristn~ ;fr~ use ef ~e propert~ or
fmcilt~. ~ts. provision ts in.hUed ~ Share a~ ~tent(al
l(ibility arising out of use of ~e fac(lttyas pOor(dod tn
Gver~nt ~ ~cttons 8~).4 and 8gS.6. T~ Ct~ will
tn~(fy anU save Otstrlct fr~ and ha~less f~ Ill claims
arising f~ const~ctton of ~e Joint use facility, including
but ~t ltm(~d ~ ~chantc's liens for labor and m~rtals, and
~st Of ~fendtng against ~uch clmt~, (nclud(ng ~asonable
Xns~ance: Ct~ ~hall p~vi~ evt~nce of ~ner~l l(ibfllty
~ covera~ for a mtnt~ of SS million for ~e use of
subless~s end shall ni~ the District as additional insured.
District shall provide evidence of general liability insurance
c~ere~e for · minim~ of SS million for the use of the subject
faciltt~y b) tbelf and t~ a~ents and sublessees and shall na~
~ ~t~ ~s additional insured.
A~lettc Field Use: ~ use of ~e Chula Vts~ High ~hool
i~iettc (tel~s by ~e :tt~ or (ts facility lessees Is not
~er~d .b~ ~ts Igr~nt, but shall be subject to the
russia's ~gular factlt~ use process.
~n~nt: This m~r~nt m~ be a~nUed from t(~ ~ tt~ by
~ ~al censent ef ~e parties hereto and only in the
~nner as its adoption. ~e te~ this 'agre~nt' herein shall
t~lu~ a~ such ~n~nts p~rly approved and executed.
~tices: All notices reauired or provided for under
~gre~nt shall be (n ~tttng and delivered tn person or sent by
~rttfted mt1, pos~ge pre-paid, return receipt requested,
~ principal efftce of the City and the Oistrict. Notice shall
be effect(ye on the d~te delivered in person, or the date when
~e poS~l authorities indicate that the ~iltng was delivered
~ ~e address of the receiving party indicated below:
Notice ~ Oistrict:
~twater Union High ~hool District
~rtntendent
ll~ Fifth Avenue
Chula Vista, CA g2011
~tice ~ City:
Ct~ of Chula Vista
Ci~ ~nager
~7~ Four~ Avenue
~ch ~ltten notices, d~nds, correspondence and c~unfcation
~y be %ant tn ~e sa~ runner to Such o~er ~rsons and
m~$$e$ ms et~er ~r~ ~y from tt~ ~ ti~ designate b~
ail ~$ p~vtUed tn ~t$ section. Apart~ my change its
m~ress by Qtvtng notice tn ~tttng~ ~e ~er ~r~ and
~af~r ~t(ces ~all be ~ltve~d er sent to such n~
lnst(~tton of Legal ~tfon: In addition ~ any o~er rights or
~dtes, ether ~r~ my (nsti~te legal action ~ cure,
~ect er ~dy ~ ~fault, ~ enfo~e ~ covenants or
a~n~ here~n er ~ e~etn ~ ~rea~ned or mtt~pted
~r~olat~'ofl ~he~eof'; ~o ~e~over damages for any de~au]t, or
~n en~ o~e~ ~d~es consistent ~ the Purpose of
~rtor C~rt of the Coun~ of ~n Otego, State
· ~llfo~ta,or tn the ~n~clpal ~urt of the Count~ of ~n D~ego,
or tn ~ Federal O~str~ct C~r: tn ~e Southern D~str~ct of
7. ~cab]e Leas/Attorneys' F~s: ~ts ag~ee~n~ ~ha]]
.-If ~ltfo~a. ~ould a~ action be brought tn an~ Court
~all he--tententttleddUrtsd~ctt°n'~ i~eattorne~spreva~ltng'Tees'Par~, courtin such costsactf°n
~essa~ d~sbu~se~n~ tn connection ~ such l~t~gat~on.
Ent~ ~t: ~s agre~n: constitutes the e~:~re
agre~nt of ~e part,es. Thts agreement
Integrates a11 of ~e ~s and conditions ~nt~oned here~n or
Incidental hereto, and supersedes all negotfat~ons or previous
Ig~w~ts between the part,es ~th respect to a~l Or an~ part
of ~e sub~ect ~tter hereof.
%N VI~SS ~[R~OF, th(s Agree~n: has been execute~ b~ the partfes
and ~ear first above written.
CITY OF' I::HULA ¥ISTA SW£~'T~AT~R UtJION HIGH SCHOOL O!STR1CT
®ory(~. ~bx, t~yor Nick Agullar, P~esiUent
. ~C ~35H BY:. Anthony d. T~o, S~Fetary
-7-
Exhibit B
® .-
3.-' 4 3 360 sq. f~:, '
700 sq ft ~.;
1097 sq ~
~ t 945 ~
1. City Storage
2. District Storage
3. Club Storage
4. Mutually shared storage
~OOR
COUNCIL AGENDA STATEMENT
Item ~ ri
Meeting Date~ ~5/.9/0~ ~/l(~
ITEM TITLE: Resolution Approving a Reimbursement Agreement with ACI
Sunbow, LLC associated with the formation of Community Facilities District
No. 2000-1 (Sunbow II) and authorizing the Mayor to execute said
agreement.
Resolution Waiving the consultant selection process as
impractical, approving agreements with Bruce W. Hull & Associates to
provide Appraisal Services and the Meyers Group to prepare a Market
Absorption Study associated with Community Facilities District No. 2000-1
(Sunbow II) and authorizing the City Manager to execute said agreements.
SUBMITTED BY: Director of Public Works~ (~
REVIEWED BY: City Manager (4/5ths Vote: Yes_No X..~.)
In compliance with Council Policy, ACI Sunbow, LLC submitted an Application for establishing
Community Facilities District No. 2000-1 ("CFD 2000-1") to fund the construction of certain
improvements serving some of the Sunbow 1I properties in the amount of approximately $ 19.5
million. Council approved the Report regarding the application and initiated the proceedings on May
2. Tonight, Council will consider approving a Reimbursement Agreement with the developer and
two agreements to retain a portion of the financing team for CFD 2000-1. The companion
Reimbursement Agreement requires the developer to advance funds to the City for the payment of all
initial consulting and administration costs and expenses related to the formation of CFD 2000-1.
RECOMMENDATION: It is recommended that Council: 1) Adopt the resolution approving the
reimbursement agreement with the Sunbow II, LLC; and 2) Adopt the resolution waiving the
consultant selection process as impractical and approving agreements with the two consultants.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
Tonight's agenda includes retaining two of six consultants that are needed for a financing team to
form CFD 2000-1. Staff anticipates retaining an additional four consultants to complete the
financing team. Those agreements will be brought forward for Council consideration next week.
The schedule for the district anticipates a bond issuance in August, thereby making a standard
consultant selection process impractical. Additionally, these consultants are part of team currently
working on CFD 99-1 (Otay Ranch SPA 1 Villages 1 and 5 and West) and as such, has extensive
knowledge of the development in the Eastern Territories including Sunbow II. Staff has a high level
Page 2, Item __
Meeting Date 5/9/00
of confidence in these consultants, the consultants have demonstrated a high level of expertise and
for these masons staffrecommends that Council waive the consultant selection process for these two
consultants.
Reimbursement Agreement
The developer, Sunbow II, LLC is required to advance ftmds for all costs associated with retaining
the financing team including City staffcosts. Should the CFD be successfully formed, the fees will
be funded via the Improvement Fund of the CFD and the developer will be eligible for
reimbursement for the funds advanced. The developer has deposited $167,000 with the City to
initiate the proceedings for the CFD. Total costs are shown below in Table A.
TABLE A
Consultant Developer CFD 2000-1 Total
Advance Proceeds CFD 2000-1
Bond Counsel $10,000 $ 27,500 $ 37,500
Underwriter 0 175,000 175,000
Financial Advisor 17,000 28,000 45,000
PM and Special Tax Consultant 70,000 20,000 90,000
Appraiser 30,000 0 30,000
Market Absorption Specialist 13,500 0 13,500
City Administration 26,500 13,500 40,000
TOTAL $167,000 $264,000 $431,000
The reimbursement agreement covers the anticipated costs of a complete financing team. However,
only two of the consultant agreements are under consideration tonight.
Appraiser
The appraiser works in concert with the Financial Advisor providing current data for analysis. The
appraisal is a key component in the viability of CFD financing. Familiarity with the community, fee
structures, etc. is essential for the protection of the future bond purchasers. Bruce W. Hull and
Associates is the appraiser for CFD 99-1 and as part of the existing financing team for Otay Ranch,
adjacent to Sunbow II, has extensive knowledge of property values in this area. Staff recommends
waiving the consultant selection process and entering into an agreement for appraisal services for
CFD 2000-1.
Page 3, Item __
Meeting Date 5/9/00
Market Absorption Consultant
The market absorption consultant also works in concert with the Financial Advisor providing
detailed data and analysis pertinent to the sale of bonds. The Meyers Group has extensive
knowledge of this area of Chula Vista and of the San Diego region enabling the firm to analyze the
project at a depth beyond the macro-level market data. The firm has demonstrated a good
understanding of the dynamics of a regional market place and understands the potential of this
project within that market. Staff recommends this consultant be selected as the market absorption
consultant for CFD 2000-1.
Staff recommends that the City's consultant selection process be waived in the interest of providing
a team with extensive knowledge and experience in their respective fields and within this region of
the County and that these two consultants be retained as part of the financing team. Doing so will
allow the project to proceed rapidly meeting the demands of the development community.
Additionally, the consultant selection process is lengthy and consumes time that would be better
used in analyzing the issues of the proposed CFD resulting in the City's interests being materially
better served.
The fees proposed by the consultants are comparable to those fees charged for existing financing
districts. There will be no direct impact on the General Fund or the City. All costs will be funded
by the developer and/or property owners and apportioned consistent with the relative benefits
received from the improvements being financed. The agreements with the appraiser (Hull) and the
market absorption consultant (Meyers Group) have been reviewed by the City Attorney as to form.
These two consultants have presented agreements for Council approval.
Procedure for formation of CFD 2000-1
Following are the key actions that Council will take during the proceedings for CFD 2000-1:
1. Approve four additional consultant agreements and approve the Resolution of Intention
(ROI).
2. Resolution of Intention to establish the CFD on May 23, 2000.
3. Public Hearing, voter's election, and levy of the special taxes on June 20, 2000.
4. Bond Sale during August 2000.
Description of the proposed CFD 2000-01
Exhibit 1 presents the boundaries of the proposed CFD which includes parcels located within
Sunbow II. Certain parcels (Phase 1) within Sunbow II are not proposed for inclusion in this district
Page 4, Item __
Meeting Date 5/9/00
because these parcels are fully developed including all the related infrastructure. At build out, the
district would contain a total of 595 Single Family Residences and 584 Multifamily Residences.
The developer is proposing CFD £mancing of the following improvements:
· Telegraph Canyon Road
· Medical Center Road/Brandywine
· East Palomar Street - Phases IA, IB, IC & IIA
· Off-site Poggi Sewer
· Olympic Parkway - West of Brandywine
· Paseo Ladera
· Medical Center Court
· Public Facilities DIF
The construction cost of these improvements is estimated at $19.5 million (including Public
Facilities DIF of $2.8 million), of which only $ 8 million would be fmanced by CFD 2000-01. Other
costs associated with the CFD are estimated at $2 million, for a total levy of $10 million.
FISCAL IMPACT: The developer will pay all costs and has deposited money to fund initial
consultant and City staff costs in accordance with the proposed Reimbursement Agreement. Such
monies are eligible for reimbursement upon a successful sale of bonds. The City will receive the
benefit of the full cost recovery for City staff (estimated at $40,000).
Exhibits: 1. Benefit Area
H:~ItOME\ENGINEER~AGENDA\SBCFD~2,DOC
5/4/00 1:51:42 PM
EXHIB~T__/~
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, APPROVING A REIMBURSEMENT AGREEMENT WITH ACI
SUNBOW, LLC ASSOCIATED WITH THE FORMATION OF COMMUNITY
FACILITIES DISTRICT NO. 2000-1 (SUNBOW II) AND AUTHORIZING THE
MAYOR TO EXECUTE SAID AGREEMENT
WHEREAS, ACI Sunbow, LLC (the "Applicant") has made application with the City of Chula
Vista (the "City") to request that the City initiate proceedings under the provisions of the "Mello-Roos
Community Facilities Act of 1982," as amended (Government Code Section 53311 and following), to
form a community facilities district (the "Community Facilities District") to finance the acquisition
and/or construction of certain public improvements required as a precondition to the development of
properties owned and/or to be developed by the Applicant or Applicant's successors within certain
portions of that area of the City commonly known as Villages 5 through 10 of Sunbow II; and
WHEREAS, the Applicant has agreed to advance funds to the City for the payment of certain
initial consulting and administration costs and expenses related to the proceedings to consider the
formation of the Community Facilities District and to subsequently authorize, issue and sell bonds for
the Community Facilities District; and
WHEREAS, such advances shall be subject to reimbursement or credit upon the successful sale
of bonds for the Community Facilities District and the receipt by the City of the proceeds of such bonds
pursuant to such tm~ns as the Applicant and the City shall agree; and
WHEREAS, the form of a Reimbursement Agreement to memorialize the terms and conditions
of such advances and reimbursements has been presented to this City Council for its consideration.
NOW, THEREFORE, IT IS HEREBY RESOLVED:
SECTION 1. The above recitals are all true and correct.
SECTION 2. The form of Reimbursement Agreement, herewith submitted, is approved
substantially in the form submitted. The Mayor is hereby authorized to execute the final form of such
agreement on behalf of the City. The Mayor, subject to the review of the City Attorney and Bond
Counsel, is authorized to approve changes in such agreement in substantially the form presented with
such minor modifications as may be required or approved by the City Attorney.
PREPARED BY: APPROVED AS TO FORM BY:
John
P.
Lippitt Jonnw~xaheny
Director of Public Works City Attorney
H:\home\attorney\reso\cfd 00- I reimbursment agr
5.1.00
COMMUNITY FACILITIES DISTRICT REIMBURSEMENT AGREEMENT
THIS AGREEMENT is made and entered into this day of ,2000, by and between
the CITY OF CHULA VISTA, a charter city ("City"), and ACI SUN'BOW LLC, a California limited
liability company ("Applicant").
RECITALS
A. The Applicant has made application with the City to request that the City initiate proceedings under
the provisions of the "Mello-Roos Community Facilities Act of 1982," as amended (Government
Code Section 53311 and following), to form a community facilities district (the "Community
Facilities District") to finance the acquisition and/or construction of certain public improvements.
The construction of such public improvements is required as a precondition to the development of
properties owned and/or to be developed by the Applicant within that area of the City commonly
known as Villages 5 through 10 of Sunbow
B. Applicant agrees to advance funds to the City for the payment of all initial consulting and
administration costs and expenses related to the proceedings to consider the formation of the
Community Facilities District and to subsequently authorize, issue and sell bonds for the
Community Facilities District (the "Proceedings"). Such monies shall be subject to reimbursement
or credit pursuant to the provisions of this Agreement upon the successful sale of bonds for the
Community Facilities District and the receipt by the City of the proceeds of such bonds.
C. The parties hereto wish to enter into an Agreement to memorialize the terms and conditions
pursuant to which Applicant shall advance monies and the monies so advanced may, subject to
certain conditions contained herein, be reimbursed or credited against future special tax
obligations.
AGREEMENT
The parties hereto, for mutual consideration, agree as follows:
SECTION 1. Advances.
A. Applicant shall advance monies to the City in such amounts and at such times as specified below to
pay all costs and expenses incurred by the City in undertaking the Proceedings (except those costs and
expenses which are contingent upon the issuance of bonds for the Community Facilities District and
payable solely from the proceeds of such bonds), including without limitation, the following:
1. Special Tax Consultant services;
2. Bond counsel services;
3. Financial advisory services;
5.1.00
4. Appraisal and market absorption services; and
5. City staff and City Attorney time.
All such costs and expenses are collectively referred to as the "Formation and Issuance Costs."
B. Advances shall be made to the City pursuant to the following schedule:
1. Applicant shall advance the amount of $167,000, receipt of which is hereby acknowledged
by the City.
2. If monies in addition to the initial advance are necessary to pay for the Formation and
Issuance Costs, the City shall as necessary and from time to time make written demand
upon Applicant and Applicant shall immediately thereafter, within five (5) working days,
deposit said monies with the City to pay for the balance of the Formation and Issuance
Costs. If such additional monies are not timely received, all Proceedings shall be
suspended until such monies are received.
SECTION 2. Records. The City agrees to keep records consistent with its regular accounting practices
of the amount of monies advanced and the expenditure of such monies. Additionally, the City shall enter
into and maintain contracts with all consultants which shall specify the scope of services and
compensation to be paid to all such consultants. Such records and contracts shall be available for review
by the Applicant during normal business hours upon reasonable notice to the City.
SECTION 3. Reimbursement. If the Community Facilities District is formed, Applicant may elect
among the following options for the reimbursement of monies advanced pursuant to this Agreement:
A. All monies advanced shall be reimbursed in cash solely from bond proceeds;
B. Ail monies advanced shall be applied as a credit upon the special taxes to be levied against
properties then owned by the Applicant; or
C. A combination of the above.
If the Proceedings to form the Community Facilities District are not completed and are abandoned
for any reason at any time prior to the successful sale of bonds or the Community Facilities District is
unable for any reason to issue or sell the bonds, there will be no obligation on the part of the City or the
Community Facilities District to reimburse Applicant for any monies previously advanced pursuant to this
Agreement; provided, however, the City does agree to return to Applicant any monies previously
advanced which remain on deposit with the City and which the City determines are in excess of the
amount necessary to pay for any outstanding Formation and Issuance Costs previously incurred by the
City.
SECTION 4. Ownership of Documents. All plans, specifications, reports, appraisals and' other
documentation as prepared as a part of the Proceedings shall become the property of the City, regardless
as to whether the Community Facilities District is actually formed.
5.1.00
SECTION 5. No Obligation to Form Community Facilities District. Applicant acknowledges that the
decision of the City Council to form the Community Facilities District is an exercise of the legislative
authority of the City Council and that the City may not enter into a contract to obligate the City Council
to exercise its legislative discretion in a particular manner. This Agreement does not, therefore, in any
way create a contractual, legal or equitable obligation of or commitment by the City to approve the
formation of the Community Facilities District. The City expressly reserves the right to abandon the
Proceedings for any re,3son at any time prior to the completion thereof. Should Applicant desire to
abandon the Proceedings, Applicant shall provide written notification of such desire to the City and
request the City to immediately terminate all consulting agreements and use all efforts to minimize any
and all Formation and Issuance Costs.
SECTION 6. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same instrument.
SECTION 7. Arbitration. Any controversy arising out of this Agreement or its breach shall be settled
by arbitration if, prior to the commencement of any legal proceeding arising out of this Agreement or its
breach, either party demands by written notice that such controversy be arbitrated. After such demand,
and within ten (10) days from such demand, the parties shall attempt to designate a mutually acceptable
individual to arbitrate the controversy. If within the ten (10) day period the parties are unable to
designate an individual, the controversy shall be arbitrated under the rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator chosen by the parties or used pursuant
to the rules of the American Arbitration Association may be entered in any court having jurisdiction and
shall be fully binding on the parties.
SECTION 8. Authority to Execute Agreement. The City and the Applicant represent that the
individuals signing tiffs Agreement have full right and authority to bind their respective parties to this
Agreement.
SECTION 9 Best Efforts. The parties promise to use their best efforts to satisfy all conditions to this
Agreement and to take all further steps and execute all further documents reasonably necessary to put this
Agreement into effect.
SECTION 10. Successor and Assigns. This Agreement shall be binding on and inure to the benefit of the
respective parties and their respective heirs, legal representatives, successors and assigns. Applicant may
not assign its rights or obligations hereunder except upon written notice to City within ten (10) days of the
date of such assignment indicating the name and address of the assignee. Upon such notice and the
assumption by the assignee in writing delivered to the City of the rights, duties and obligations of the
Applicant arising under or from this Agreement, Applicant shall be released for all future duties or
obligations arising under or from this Agreement.
SECTION 11. Singular and Plural; Gender. Whenever used herein, the singular number shall include
the plural, the. plural number shall include the singular, and the masculine fern!pine or neuter gender shall
include the others whenever the context of the Agreement so indicates.
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5.1.00
SECTION 12. Entire Agreement. This Agreement contains the entire Agreement between the parties
hereto with respect to the subject matter hereof. This Agreement may not be altered, modified or
amended except by an instrument in writing executed by all of the parties.
SECTION 13. Governing Law. This Agreement has been executed in and shall be governed by the laws
of the State of California.
SECTION 14. Construction. This Agreement shall be construed as a whole and in accordance with its
fair meaning. Captions and organizations are for convenience and shall not be used in construing
meaning.
SECTION 15. Severability. If any term, covenant, condition or provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable the remainder of the provision thereof
shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
SECTION 16.Notices. All notices and demands shall be given in writing by personal delivery or first-
class mail, postage prepaid. Notices shall be addressed as appears b61ow for the respective party;
provided that, if any party gives notice of a change of name of address, notices to the giver of that notice
shall thereafter be given as demanded in that notice. Notices shall be deemed received seventy-two (72)
hours after deposit in the United States mail.
CITY: CITY OF CHULA VISTA
276 Fourth Avenue
Chula Vista, CA 91910
Attention: City Manager
APPLICANT: ACI SUNBOW LLC
C/o Ayres Land Company, Inc.
750 B Street, Suite 2370 ..
San Diego, CA 92101
Attention: Bill Hamlin
SECTION 17. Time of the Essence. Time is of the essence in the performance of the parties respective
obligations herein contained.
SECTION 18.Waiver. The waiver by one party of the performance of any covenant, condition or
promise shall not invalidate this Agreement, nor shall it be considered a waiver by him of any other
covenant, condition or promise. The waiver by either or both parties of the tune for performing any act
shall not constitute a waiver of the time for performing any other act or an identical act required to be
performed at a later time. The exercise of any remedy provided in this Agreement shall not be a waiver
of any consistent remedy provided by law, and any provision of this Agreement for any remedy shall not
exclude other consistent remedies unless they are expressly excluded.
SECTION 19. Amendment. No provision of this Agreement may be modified, waived, amended or
added to except by a writing signed by the party against which the enforcement of such modification,
waiver, amendment or addition is or may be sought.
SECTION 20. ltold Harmless. Applicant shall defend, indemnify, protect and hold harmless the City, its
elected officials and appointed officers, employees and agents, from and against all claims for damages,
liability, cost and expense (including without limitation attorneys' fees) arising directly or indirectly out of
the waiver by the City Council of the City's procedures for the selection of any of the consultants
identified in Section 1. and retained by the City to aSsist in undertaking the Proceedings. Applicant's
indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the
City, its officers, agents, or employees in defending against such claims, whether the same proceed to
judgment or not. Further, Applicant at its own expense shall, upon written request by the City, defend
any such suit or action brought against the City, its officers, agents or employees. Applicant's
indemnification of City shall not be limited by any prior or subsequent declaration by the consultant.
[Remainder of this page intentionally left blank.]
5.1.00
Signature Page
to
Community Facilities District Reimbursement Agreement
between
the City of Chula Vista
and
ACI Sunbow LLC
IN WlTNESS WHEREOF, City and Applicant have executed this Agreement thereby indicating that they
have read and understood same, and indicate their full and complete consent to its terms.
CITY OF CHULA VISTA
By:
Mayor
Attest:
City Clerk
Approved as to Form:
City Attorney
City of Chula Vista
ACI SUNBOW LLC, a California limited liability
company,
By:
Its:
By:
Its:
H:\SHAREDkENGiNEER~ReJm Agreement 5-1 clean.doc
6
7' :J 7
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, WAIVING THE CONSULTANT SELECTION PROCESS AS
IMPRACTICAL, APPROVING THE AGREEMENTS WITH BRUCE W. HULL
& ASSOCIATES TO PROVIDE APPRAISAL SERVICES AND THE MEYERS
GROUP TO PREPARE A MARKET ABSORPTION STUDY ASSOCIATED
WITH COMMUNITY FACILITIES DISTRICT NO. 2000-1 AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENTS
WHEREAS, ACI Sunbow, LLC (the "Applicant") has made application with the City of
Chula Vista (the "City") to request that the City initiate proceedings under the provisions of the
"Mello-Roos Community Facilities Act of 1982," as amended (Government Code Section 53311 and
following), to form a community facilities district (the "Community Facilities District") to finance
the acquisition and/or construction of certain public improvements required as a precondition to the
development of properties owned and/or to be developed by the Applicant or Applicant's successors
within certain portions of that area of the City commonly known as Villages 5 through 10 of Sunbow
II; and
WHEREAS, the Applicant has agreed to advance funds to the City for the payment of certain
initial consulting and administration costs and expenses related to the proceedings to consider the
fort-nation of the Community Facilities District and to subsequently authorize, issue and sell bonds
for the Community Facilities District; and
WHEREAS, the form of a Reimbursement Agreement to memorialize the terms and
conditions of such advances and reimbursements has been presented to this City Council for its
consideration; and
WHEREAS, the form agreements for two of the six necessary consultants including
market absorption analyst and appraiser have been presented to this City Council for its
consideration; and
WHEREAS, staff recommends the Consultant Selection process be waived because it is
in the City's best interest and the following circumstances make it impractical:
1. The need to expedite the formation of the proposed Community Facilities District
2. Familiarity with the community fee structures is essential for the protection of the
future bond purchasers.
3. Extensive knowledge of area property values is necessary.
4. A deep understanding of the dynamics of a regional market place and the potential
of this project within that market is necessary.
WHEREAS, staff recommends Bruce W. Hull & Associates to be the appraiser and The
Meyers Group to be the market absorption analyst due to their demonstrated high level of
expertise.
NOW, THEREFORE, IT IS HEREBY RESOLVED:
SECTION 1, The above recitals are all true and correct.
SECTION 2. The Consultant Selection Process is hereby waived and the forms of
agreements with The Meyers Group for market absorption analysis and Bruce W. Hull &
Associates for appraisal services, herewith submitted, are approved substantially in the forms
submitted. The City Manager is hereby authorized to execute the final form of each such
agreement on behalf of the City. The City Manager, subject to the review of the City Attorney,
is authorized to approve changes in such agreement in substantially the form presented with such
minor modifications as may be required or approved by the City Attorney.
PREPARED BY: APPROVED AS TO FORM BY:
John P. Lippitt Johj~Kaheny
Director of Public Works City Attorney
H:\home\attorney\cfd00-1 hull & meyers agr.
Parties and Recital Page(s)
Agreement between
City of Chula Vista
and
Brace W. Hull & Associates, Inc.
for appraisal services associated with CFD 2000-1
This agreemem ("Agreement"), dated May 9, 2000 for the purposes of reference only, and
effective as of the date last executed unless another date is otherwise specified in Exhibit A,
Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such
("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on
the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit
A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A,
paragraph 6 ("Consultant"), and is made with reference to the following facts:
Whereas, the City is desirous of retaining a firm to complete an appraisal of Sunbow II
("Property") for a proposed Community Facilities District bond issue; and,
Whereas, the appraisal will be used to ensure conformance with the City's value to lien
policy; and,
Whereas, Consultant was selected based on the quality of previous similar work
performed in association with the City's formation of Community Facilities Districts 97-3 and
99-1; and,
Whereas, the consultant selection process was waived due to (1) the need to expedite the
formation of the proposed Community Facilities District 2000-1, (2) Consultant's familiarity
with the community and fee structures is essential for the protection of the future bond
purchasers, and (3) Consultant's extensive knowledge of property values in this area; and
Whereas, Consultant warrants and represents that they are experienced and staffed in a
manner such that they are and can prepare and deliver the services required of Consultant to City
within the time frames herein provided all in accordance with the terms and conditions of this
Agreement;
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Obligatory Provisions Pages
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby
mutually agree as follows:
1. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on the attached Exhibit A,
Paragraph 7, entitled "General Duties"; and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General Duties", Consultant shall also
perform all of the services described in Exhibit A, Paragraph 8, entitled" Scope of Work and
Schedule", not inconsistent with the General Duties, according to, and within the time frames set
forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit
A, Paragraph 8, within the time frames set forth therein, time being of the essence of this
agreement. The General Duties and the work and deliverables required in the Scope of Work and
Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined
Services by the times indicated does not, except at the option of the City, operate to terminate
this Agreement
C. Reductions in Scope of Work
City may independently, or upon request from Consultant, from time to time reduce the
Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City
and Consultant agree to meet in good faith and confer for the purpose of negotiating a
corresponding reduction in the compensation associated with said reduction.
D. Additional Services
In addition to perforating the Defined Services herein set forth, City may require
Consultant to perform additional consulting services related to the Defined Services ("Additional
Services"), and upon doing so in writing, if they are within the scope of services offered by
Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in
the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise
agreed upon. All compensation for Additional Services shall be paid monthly as billed.
E. Standard of Care
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January 20, 1999 Pa~e 2
Consultant, in performing any Services under this agreement, whether Defined Services
or Additional Services, shall perform in a manner consistent with that level of care and skill
ordinarily exercised by members of the profession currently practicing under similar conditions
and in similar locations.
F. Insurance
Consultant [epresents that it and its agents, staff and subconsultants employed by it in
connection with the Services required to be rendered, are protected against the risk of loss by the
following insurance coverages, in the following categories, and to the limits specified, policies of
which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or
shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage
in the amount set forth in the attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business Automobile Insurance
coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied
separately to each project away from premises owned or rented by Consultant, which names City
as an Additional Insured, and which is primary to any policy which the City may otherwise carry
("Primary Coverage"), and which treats the employees of the City in the same manner as
members of the general public ("Cross-liability Coverage").
Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless
Errors and Omissions coverage is included in the General Liability policy.
G. Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein required, prior to the
commencement of services required under this Agreement, by delivery of Certificates of
Insurance demonstrating same, and further indicating that the policies may not be canceled
without at least thirty (30) days written notice to the Additional Insured.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured Coverage, Primary Coverage and
Cross-liability Coverage required under Consultant's Commercial General Liability Insurance
Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which
shall be reviewed and approved by the Risk Manager.
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January20, 1999 Page 3
H. Securi _ty for Performance.
(1) Performance Bond.
In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide a Performance Bond (indicated by a check mark in the parenthetical space immediately
preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the
City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager
or City Attorney which amount is indicated in the space adjacent to the term, "Performance
Bond", in said Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately
preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City
an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to
the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms
of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount
satisfactory to the Risk Manager or City Attorney which amount is indicated in the space
adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph entitled "Other Security"),
then Consultant shall provide to the City such other security therein listed in a form and amoum
satisfactory to the Risk Manager or City Attorney.
I. Business License
Consultant agrees to obtain a business license from the City and to otherwise comply with
Title 5 of the Chula Vista Municipal Code.
2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose of reviewing the progress of
the Defined Services and Schedule therein contained, and to provide direction and guidance to
achieve the objectives of this agreement. The City shall permit access to its office facilities, files
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Paste 4
and records by Consultant throughout the term of the agreement. In addition thereto, City agrees
to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and
with the further understanding that delay in the provision of these materials beyond 30 days after
authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's
performance of this agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant submitted to the City
periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than
monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate
Consultant for all services rendered by Consultant according to the terms and conditions set forth
in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a
"checkmark" next to the appropriate arrangement, subject to the requirements for retention set
forth in paragraph 19 of Exhibit A, and shall compensate Consultant for out of pocket expenses
as provided in Exhibit A, Paragraph 12.
All billings submitted by Consultant shall contain sufficient information as to the
propriety of the billing to permit the City to evaluate that the amount due and payable thereunder
is proper, and shall specifically contain the City's account number indicated on Exhibit A,
Paragraph 18 (C) to be charged upon making such payment.
3. Administration of Contract
Each party designates the individuals ("Contract Administrators") indicated on Exhibit A,
Paragraph 13, as said party's contract administrator who is authorized by said party to represent
them in the routine administration of this agreement.
4. Term.
This Agreement shall terminate when the Parties have complied with all executory
provisions hereofi
5. Liquidated Damages
The provisions of this section apply ifa Liquidated Damages Rate is provided in Exhibit
A, Paragraph 14.
It is acknowledged by both parties that time is of the essence in the completion of this
Agreement. It is difficult to estimate the amount of damages resulting from delay in per-
formance. The parties have used their judgment to arrive at a reasonable amount to compensate
for delay.
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Pag'e 5
Failure to complete the Defined Services within the allotted time period specified in this
Agreement shall result in the following penalty: For each consecutive calendar day in excess of
the time specified for the completion of the respective work assignment or Deliverable, the
consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated
Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate").
Time extensions for delays beyond the consultant's control, other than delays caused by
the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to
the expiration of the specified time. Extensions of time, when granted, will be based upon the
effect of delays to the work and will not be granted for delays to minor portions of work unless it
can be shown that such delays did or will delay the progress of the work.
6. Financial Interests of Consultant
A. Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is
deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the City Clerk on the required
Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of
Exhibit A, or if none are specified, then as determined by the City Attorney.
B. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not
make, or participate in making or in any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to know Consultant has a
financial interest other than the compensation promised by this Agreement.
C. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants
and represents that Consultant has diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations promulgated by the Fair Political
Practices Commission, and has determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with Consultant's duties under this
agreement.
D. Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further
warrants and represents that Consultant will not acquire, obtain, or assume an economic interest
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 6
during the term of this Agreement which would constitute a conflict of interest as prohibited by
the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further
warrants and represents that Consultant will immediately advise the City Attorney of City if
Consultant learns of an economic interest of Consultant's which may result in a conflict of
interest for the purpbse of the Fair Political Practices Act, and regulations promulgated
thereunder.
F. Specific Warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant, nor Consultant's immediate
family members, nor Consultant's employees or agents ("Consultant AssociateS") presently have
any interest, directly or indirectly, whatsoever in any property which may be the subject matter of
the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any
property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other
than as listed in Exhibit A, Paragraph 15.
Consultant further warrants and represents that no promise of future employment,
remuneration, consideration, gratuity or other reward or gain has been made to Consultant or
Consultant Associates in connection with Consultant's performance of this Agreement.
Consultant promises to advise City of any such promise that may be made during the Term of
this Agreement, or for 12 months thereafter.
Consultant agrees that Consultant Associates shall not acquire any such Prohibited
Interest within the Term of this Agreement, or for 12 months after the expiration o£this
Agreement, except with the written permission of City.
Consultant may not conduct or solicit any business for any party to this Agreement, or for
any third party which may be in conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City.
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold harmless the City, its elected and
appointed officers and employees, from and against all claims for damages, liability, cost and
expense (including without limitation attorneys' fees) arising out of the conduct of the
Consultant, or any agent or employee, subcontractors, or others in connection with the execution
of the work covered by this Agreement, except only for those claims arising from the sole
negligence or sole willful misconduct of the City, its officers, or employees. Consultant's
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 7
indemnification shall include any and all costs, expenses, attomeys' fees and liability incurred by
the City, its officers, agents, or employees in defending against such claims, whether the same
proceed to judgment or not. Further, Consultant at its own expense shall, upon written request
by the City, defend any such suit or action brought against the City, its officers, agents, or
employees. Consultants' indemnification of City shall not be limited by any prior or subsequent
declaration by the Consultant.
8. Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a timely and proper manner
Consultant's obligations under this Agreement, or if Consultant shall violate any of the
covenants, agreements or stipulations of this Agreement, City shall have the right to terminate
this Agreement by giving written notice to Consultant of such termination and specifying the
effective date thereof at least five (5) days before the effective date of such termination. In that
event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and
other materials prepared by Consultant shall, at the option of the City, become the property of the
City, and Consultant shall be entitled to receive just and equitable compensation for any work
satisfactorily completed on such documents and other materials up to the effective date of Notice
of Termination, not to exceed the amounts payable hereunder, and less any damages caused City
by Consultant's breach.
9. Errors and Omissions
In the event that the City Administrator determines that the Consultants' negligence,
errors, or omissions in the performance of work under this Agreement has resulted in expense to
City greater than would have resulted if there were no such negligence, errors, omissions,
Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein
is intended to limit City's rights under other provisions of this agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any reason, by giving specific
written notice to Consultant of such termination and specifying the effective date thereof, at least
thirty (30) days before the effective date of such termination. In that event, all finished and
unfinished documents and other materials described hereinabove shall, at the option of the City,
become City's sole and exclusive property. If the Agreement is terminated by City as provided in
this paragraph, Consultant shall be entitled to receive just and equitable compensation for any
satisfactory work completed on such documents and other materials to the effective date of such
termination. Consultant hereby expressly waives any and all claims for damages or compensation
arising under this Agreement except as set forth herein.
11. Assignability
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The services of Consultant are personal to the City, and Consultant shall not assign any
interest in this Agreement, and shall not transfer any interest in the same (whether by assignment
or novation), without prior written consent of City. City hereby consents to the assignment of
the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants
identified thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, ~tudies, information, data, statistics, forms, designs, plans, procedures,
systems and any other materials or properties produced under this Agreement shall be the sole
and exclusive property of City. No such materials or properties produced in whole or in part
under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in
the United States or in any other country without the express written consent of City. City shall
have unrestricted authority to publish, disclose (except as may be limited by the provisions of the
Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any
such reports, studies, data, statistics, forms or other materials or properties produced under this
Agreement.
13. Independent Contractor
City is interested only in the results obtained and Consultant shall perform as an
independent contractor with sole control of the manner and means of performing the services
required under this Agreement. City maintains the right only to reject or accept Consultant's
work products. Consultant and any of the Consultant's agents, employees or representatives are,
for all purposes under this Agreement, an independent contractor and shall not be deemed to be
an employee of City, and none of them shall be entitled to any benefits to which City employees
are entitled including but not limited to, overtime, retirement benefits, worker's compensation
benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal
income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible
for the payment of same and shall hold the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this agreement, against the City
unless a claim has first been presented in writing and filed with the City and acted upon by the
City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Mtmicipal
Code, as same may from time to time be amended, the provisions of which are incorporated by
this reference as if fully set forth herein, and such policies and procedures used by the City in the
implementation of same.
Upon request by City, Consultant shall meet and confer in good faith with City for the
purpose of resolving any dispute over the terms of this Agreement.
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January 20, 1999 Pag'e 9
15. Attorney's Fees
Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing
party shall be entitled to a judgment against the other for an mount equal to reasonable
attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party
who is awarded substantially the relief sought.
16. Statement of Costs
In the event that Consultant prepares a report or document, or participates in the
preparation of a report or document in performing the Def'med Services, Consultant shall include,
or cause the inclusion of, in said report or document, a statement of the numbers and cost in
dollar amounts of all contracts and subcontracts relating to the preparation of the report or
document.
17. Miscellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consultant shall have no authority to act
as City's agent to bind City to any contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals
is/are licensed with the State of California or some other state as a licensed real estate broker or
salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are
licensed real estate brokers or salespersons.
C. Notices
All notices, demands or requests provided for or permitted to be given pursuant to this
Agreement must be in writing. All notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served or deposited in the United
States mail, addressed to such party, postage prepaid, registered or certified, with return receipt
requested, at the addresses identified herein as the places of business for each of the designated
parties.
D. Entire Agreement
This Agreement, together with any other written document referred to or contemplated
herein, embody the entire Agreement and understanding between the parties relating to the
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January 20, 1999 Page 10
subject matter hereof. Neither this Agreement nor any provision hereof may be amended,
modified, waived or discharged except by an instrument in writing executed by the party against
which enforcement of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and represents to the other party that it
has legal authority ~nd capacity and direction from its principal to enter into this Agreement, and
that all resolutions or other actions have been taken so as to enable it to enter into this
Agreement.
F. Governing Law/Venue
This Agreement shall be governed by and construed in accordance with the laws of the
State of California. Any action arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State of California, and if applicable,
the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
[end of page. next page is signature page.]
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revisign)
January 20, 1999 Pa~e 11
Signature Page
to
Agreement between City of Chula Vista and Bruce W. Hull & Associates
for appraisal services associated with CFD 2000-1
IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby
indicating that they have read and understood same, and indicate their full and complete consent
to its terms:
Dated: ,2000 City of Chula Vista
Dave Rowlands, City Manager
Attest:
Susan Bigelow, City Clerk
Approved as to form:
John M. Kaheny, City Attorney
Dated: Bruce W. Hull & Associates
By:
Bruce Hull
By:
Exhibit List to Agreement
( X ) Exhibit A.
( ) Exhibit B
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 12
Exhibit A
to
Agreement between
City of Chula Vista
and
Bruce W. Hull & Associates, Inc.
1. Effective Date of Agreement: May 9, 2000
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of the State of California
( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the
State of California
( ) Industrial Development Authority of the City of Chula Vista, a
( ) Other: ,
("Ciw")
3. Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant: Brace W. Hull & Associates
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Parmership
(x) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
115 E. Second Street, Suite 100
Tustin, California 92780
Voice Phone (949)-581-2194
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 13
Fax Phone (949) 581-2198
7. General Duties:
A. Consultant shall prepare an appraisal for the Property for the formation of
proposed Community Facilities District No. 2000-1 (Sunbow II). The Property
for the purpose of this agreement is generally the area west of Otay Ranch SPA I
West, south of Telegraph Canyon Road (the "Property").
8. Scope of Work ~md Schedule:
A. Detailed Scope of Work
The appraisal will provide an estimate of current market value of the Property, which is
defined as follows:
"The most probable price in terms of money which a property should bring in
competitive and open market under all conditions requisite to a fair sale, the
buyer and seller each acting prudently, knowledgeably, assnming the price is not
affected by undue stimulus."
Implicit in this definition is the consummation of sale as of a specified date and the passing of title
from seller to buyer under conditions whereby:
1. Buyer and seller are typically motivated;
2. Both parties are well informed or well advised, and each acting in what he or she
considers his/her best interest;
3. A reasonable time is allowed for exposure in the open market;
4. Payment is made in cash or its equivalent;
5. Financing, if any, is on terms generally available in the community as of the
specified date and is typical for the property type in its locale; and
6. The price represents a normal consideration for the property sold, unaffected by
special financing amounts and/or terms, services, fees, costs or credits incurred
in the transaction."
Real Estate Terminology, AIREA, SREA, edited by Byrl N. Boyce, Copyright 1981, Publisher -
Ballinger, Page 160.
2ptyl2.wp Standard Form Two Party Agreement (Twelfth Revision)
Jantmry 20, 1999 Page 14
£)
The value est'unate will reflect the fee simple interest of the subject property, as of the date
of value, subject to the CFD liens.
· The value estimate will reflect actual conditions of the property, including appropriate
deductions for any deferred maintenance; income deficiencies, if any; and any other
unfavorable conditions affecting its current market value.
Consultant will attend all coordination meetings scheduled by the City
Consultant ~vill provide periodic drafts (as required by the City) of the appraisal for
comments at the coordination meetings
Consultant will provide 12 bound copies of the appraisal upon completion
· Consultant will provide an electronic version of the appraisal in a format acceptable to the
City so that the City can make the report available to the underwriter or other party.
· Consultant will work with the Property Owner to obtain the following:
- Legal description and recent title or preliminary title report;
- Site development costs including backbone infrastructure cost and builder
improvement costs per planning area or tract;
- Documentation regarding purchase of the subject property in the last three years;
or pending sale of the property documented by purchase agreement and/or escrow
instructions; and
- Property inspection.
B. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
( ) Other:
C. Dates or Time Limits for Delivery of Deliverables:
A draft appraisal shall be delivered on or before June 15, 2000. A final
appraisal shall be delivered on or before July 12, 2000. These time frames may be
revised as approved by the City Engineer.
D. Date for completion of all Consultant services:
Upon completion of the appraisal to the satisfaction of the City's Director of
Public Works.
2ptyl 2.wp Standard Form Two Patty Agreement (Twelfth Revision)
January 20, 1999 Page 15
9. Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
( ) Employer's Liability Insurance coverage: $1,000,000.
(X) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required (included in Commemial
General Liability coverage).
(X). Errors and Omissions Insurance: $250,000 (not included in Commercial
General Liability coverage).
10. Materials Required to be Supplied by City to Consultant:
Consultant shall work with the ACI Sunbow, LLC Contact Person (Bill Hamlin) to
obtain all needed material for completion of the appraisal.
11. Compensation:
A. (X) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant as herein required, City shall
pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables
set forth below:
Single Fixed Fee Amount: $30,000, payable as follows:
Milestone or Event or Deliverable Amount or Pement of Fixed Fee
Acceptance of draft appraisal $15,000
Acceptance of Final appraisal $15,000
( ) 1. Interim Monthly Advances. The City shall make interim monthly
advances against the compensation due for each phase on a pementage of
completion basis for each given phase such that, at the end of each phase only
the compensation for that phase has been paid. Any payments made
hereunder shall be considered as interest free loans which must be returned
to the City if the Phase is not satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive credit against the
compensation due for that phase. The retention amount or pementage set
forth in Paragraph 19 is to be applied to each interim payment such that, at
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Pa~le 16
the end of the phase, the full retention has been held back fxom the
compensation due for that phase. Pementage of completion ora phase shall
be assessed in the sole and unfettered discretion by the Contracts
Administrator designated herein by the City, or such other person as the City
Manager shall designate, but only upon such proof demanded by the City that
has been provided, but in no event shall such interim advance payment be
made unless the Contractor shall have represented in writing that said
percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this
agreement to a time and materials basis of payment.
B. ( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined Services by Consultant as are
separately identified below, City shall pay the fixed fee associated with each phase of
Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant
shall not commence Services under any Phase, and shall not be entitled to the compensation
for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase.
Phase Fee for Said Phase
1. $
2. $
3. $
( ) 1. Interim Monthly Advances. The City shall make interim monthly
advances against the compensation due for each phase on a percentage of
completion basis for each given phase such that, at the end of each phase only
the compensation for that phase has been paid. Any payments made
hereunder shall be considered as interest free loans which must be returned
to the City if the Phase is not satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive credit against the
compensation due for that phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each interim payment such that, at
the end of the phase, the full retention has been held back from the
compensation due for that phase. Percentage of completion of a phase shall
be assessed in the sole and tmfettered discretion by the Contracts
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
Jannary 20, 1999 PaSte :1.7
Administrator designated herein by the City, or such other person as the City
Manager shall designate, but only upon such proof demanded by the City that
has been provided, but in no event shall such interim advance payment be
made unless the Contractor shall have represented in writing that said
percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this
agreement to a time and materials basis of payment.
C. ( ) Hourly, Rate Arrangement
For performance of the Defined Services by Consultant as herein required, City shall pay
Consultant for the productive hours of time spent by Consultant in the performance of said
Services, at the rotes or mounts set forth in the Rate Schedule hereinbelow according to the
following terms and conditions:
A. ( ) Not-to-Exceed Limitation on Time and Materials Arrangement
Notwithstanding the expenditure by Consultant of time and materials in
excess of said Maximum Compensation amount, Consultant agrees that Consultant
will perform all of the Defined Services herein required of Consultant for
$ including all Materials, and other "reimbursables" ("Maximum
Compensation").
B. ( ) Limitation without Further Authorization on Time and Materials
Arrangement
At such time as Consultant shall have incurred time and materials equal to
("Authorization Limit"), Consultant shall not be entitled to any
additional compensation without further authorization issued in writing and approved
by the City. Nothing herein shall preclude Consultant from providing additional
Services at Consultant's own cost and expense.
Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 18
( ) Hourly rates may increase by 6% for services rendered after [month], 19 , if
delay in providing services is caused by City.
12. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by Consultant in the performance of services
herein required, City shall pay Consultant at the rates or amotmts set forth below:
(X) None, the compensation includes all costs.
Cost or Rate
( ) Reports, not to exceed $__:
( ) Copies, not to exceed $ __:
( ) Travel, not to exceed $ :
( ) Printing, not to exceed $
( ) Postage, not to exceed $__:
( ) Delivery, not to exceed $
( ) Long Distance Telephone Charges,
not to exceed $
( ) Other Actual Identifiable Direct Costs:
, not to exceed $ :
, not to exceed $ :
13. Contract Administrators:
City: Donna Snider, Civil Engineer
Consultant: Bruce Hull
14. Liquidated Damages Rate: N/A
( ) $.__ per day.
( ) Other:
15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Pacj'e 19
Code:
( x ) Not Applicable. Not an FPPC Filer.
( ) FPPC Filer
Category No. 1. Investments and sources of income.
Category No. 2. Interests in real property.
Category No. 3. Investments, interest in real property and sources of income
subject to the regulatory, permit or licensing authority of the department.
Category No. 4. Investments in business entities and sources of income
which engage in land development, construction or the acquisition or sale of
real property.
Category No. 5. Investments in business entities and sources of income of
the type which, within the past two years, have contracted with the City of
Chula Vista (Redevelopment Agency) to provide services, supplies,
materials, machinery or equipment.
Category No. 6. Investments in business entities and sources of income of
the type which, within the past two years, have contracted with the designated
employee's department to provide services, supplies, materials, machinery or
equipment.
Category No. 7. Business positions.
( ) List "Consultant Associates" interests in real property within 2 radial miles of Project
Property, if any:
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 20
n/a
18. Bill Processing:
A Consultant's Billing to be submitted for the following period of time:
( ) Monthly
( ) Quarterly
( x ) Other: Completion of appraisal
B Day of the Period for submission of Consultant's Billing: ( ) First of the
Month
( ) 15th Day of each Month
( ) End of the Month
(X) Other: Completion of appraisal
C City's Account Number: Developer deposit account
19. Security for Performance
( Performance Bond, $.
( Letter of Credit, $
( Other Security:
Type:_
Amount: $
( Retention. If this space is checked, then notwithstanding other provisions to the
contrary requiring the payment of compensation to the Consultant sooner, the City
shall be entitled to retain, at their option, either the following "Retention Percentage"
or "Retention Amount" until the City determines that the Retention Release Event,
listed below, has occurred:
( ) Retention Percentage: %
( ) Retention Amount: $
Retention Release Event: ( ) Completion of All Consultant Services
( ) Other:
E-mail file: sbhull.wpd 5/3/00 (atty review)
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Pacje 21
; r · 1 !
Parties and Recital Page(s)
Agreement between
City of Chula Vista
and
The Meyers Group
for Market Analysis and Absorption Projection Services
for Community Facilities District No. 2000-1
This agreement ("Agreement"), dated May 9,2000 for the purposes of reference only, and
effective as of the date last executed tmless another date is otherwise specified in Exhibit A,
Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such
("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on
the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit
A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A,
paragraph 6 ("Consultant"), and is made with reference to the following facts:
Whereas, the City is desirous of retaining a firm to complete a Market Analysis and
Market Projection of Sunbow II ("Property") for a proposed Community Facilities District bond
issue; and,
Whereas, Consultant was selected based on the quality of previous similar work
performed in association with the City's formation of Community Facilities Districts 97-3 and
99-1 and Assessment District 97-2; and,
Whereas, the consultant selection process was waived due to (1) the need to expedite the
formation of the proposed Conununity Facilities District 2000-1, (2) Consultant's extensive
knowledge of this area of Chula Vista and San Diego which enables Consultant to analyze the
project at a depth beyond the standard macro-level market data, (3) Consultant has demonstrated
a deep understanding of the dynamics of a regional market place and understands the potential
of this project within that market, and (4) Consultant's fees are comparable to those fees charged
for existing financing districts; and
Whereas, Consultant warrants and represents that they are experienced and staffed in a
manner such that they are and can prepare and deliver the services required of Consultant to City
within the time frames herein provided all in accordance with the terms and conditions of this
Agreement;
(End of Recitals. Next Page starts Obligatory Provisions.)
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 1
Obligatory Provisions Pages
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby
mutually agree as follows:
1. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on the attached Exhibit A,
Paragraph 7, entitled "General Duties"; and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General Duties", Consultant shall also
perform all of the services described in Exhibit A, Paragraph 8, entitled" Scope of Work and
Schedule", not inconsistent with the General Duties, according to, and within the time frames set
forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit
A, Paragraph g, within the time frames set forth therein, time being of the essence of this
agreement. The General Duties and the work and deliverables required in the Scope of Work and
Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined
Services by the times indicated does not, except at the option of the City, operate to terminate
this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request from Consultant, from time to time reduce the
Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City
and Consultant agree to meet in good faith and confer for the purpose of negotiating a
corresponding reduction in the compensation associated with said reduction.
D. Additional Services
In addition to performing the Defined Services herein set forth, City may require
Consultant to perform additional consulting services related to the Defined Services ("Additional
Services"), and upon doing so in writing, if they are within the scope of services offered by
Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in
the "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise
agreed upon. All compensation for Additional Services shall be paid monthly as billed.
E. Standard of Care
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 2
Consultant, in performing any Services under this agreement, whether Defined Services
or Additional Services, shall perform in a manner consistent with that level of care and skill
ordinarily exemised by members of the profession currently practicing under similar conditions
and in similar locations.
F. Insurance
Consultant represents that it and its agents, staff and subconsultants employed by it in
connection with the Services required to be rendered, are protected against the risk of loss by the
following insurance coverages, in the following categories, and to the limits specified, policies of
which are issued by Insurance Companies that have a Besfs Rating of "A, Class V" or better, or
shall meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage
in the mount set forth in the attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business Automobile Insurance
coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied
separately to each project away from premises owned or rented by Consultant, which names City
as an Additional Insured, and which is primary to any policy which the City may otherwise carry
("Primary Coverage"), and which treats the employees of the City in the same manner as
members of the general public ("Cross-liability Coverage").
Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless
Errors and Omissions coverage is included in the General Liability policy.
G. Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein required, prior to the
commencement of services required under this Agreement, by delivery of Certificates of
Insurance demonstrating same, and further indicating that the policies may not be canceled
without at least thirty (30) days written notice to the Additional Insured.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured Coverage, Primary Coverage and
Cross-liability Coverage required under Consultant's Commercial General Liability Insurance
Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which
shall be reviewed and approved by the Risk Manager.
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 3
H. Security for Performance.
(1) Performance Bond.
In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide a Performance Bond (indicated by a check mark in the parenthetical space immediately
preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the
City a performance bond by a surety and in a form and mount satisfactory to the Risk Manager
or City Attorney which amount is indicated in the space adjacent to the term, "Performance
Bond", in said Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately
preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City
an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to
the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms
of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount
satisfactory to the Risk Manager or City Attorney which amount is indicated in the space
adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark
in the parenthetical space immediately preceding the subparagraph entitled "Other Security"),
then Consultant shall provide to the City such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney.
I. Business License
Consultant agrees to obtain a business license from the City and to otherwise comply with
Title 5 of the Chula Vista Municipal Code.
2. Duties of the City
A. Consultation and Cooperation
City shall regularly consult the Consultant for the purpose of reviewing the progress of
the Defined Services and Schedule therein contained, and to provide direction and guidance to
achieve the objectives of this agreement. The City shall permit access to its office facilities, files
2ptyl2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 4
and records by Consultant throughout the term of the agreement. In addition thereto, City agrees
to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and
with the further understanding that delay in the provision of these materials beyond 30 days after
authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's
performance of this agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant submitted to the City
periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than
monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate
Consultant for all services rendered by Consultant according to the terms and conditions set forth
in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a
"checkmark" next to the appropriate arrangement, subject to the requirements for retention set
forth in paragraph 19 of Exhibit A, and shall compensate Consultant for out of pocket expenses
as provided in Exhibit A, Paragraph 12.
All billings submitted by Consultant shall contain sufficient information as to the
propriety of the billing to permit the City to evaluate that the mount due and payable thereunder
is proper, and shall specifically contain the City's account number indicated on Exhibit A,
Paragraph 18 (C) to be charged upon making such payment.
3. Administration of Contract
Each party designates the individuals ("Contract Administrators") indicated on Exhibit A,
Paragraph 13, as said party's contract administrator who is authorized by said party to represent
them in the routine administration of this agreement.
4. Term.
This Agreement shall terminate when the Parties have complied with all executory
provisions hereof.
5. Liquidated Damages
The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit
A, Paragraph 14.
It is acknowledged by both parties that time is of the essence in the completion of this
Agreement. It is difficult to estimate the amount of damages resulting from delay in per-
formance. The parties have used their judgment to arrive at a reasonable amount to compensate
for delay.
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 5
Failure to complete the Def'med Services within the allotted time per/od specified in this
Agreement shall result in the following penalty: For each consecutive calendar day in excess of
the time specified for the completion of the respective work assignment or Deliverable, the
consultant shall pay to the City, or have withheld from monies due, the stun of Liquidated
Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate").
Time extensions for delays beyond the consultant's control, other than delays caused by
the City, shall he requested in writing to the City's Contract Administrator, or designee, prior to
the expiration of the specified time. Extensions of time, when granted, will be based upon the
effect of delays to the work and will not be granted for delays to minor portions of work unless it
can be shown that such delays did or will delay the progress of the work.
6. Financial Interests of Consultant
A. Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is
deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the City Clerk on the required
Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of
Exhibit A, or if none are specified, then as determined by the City Attorney.
B. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not
make, or participate in making or in any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to know Consultant has a
financial interest other than the compensation promised by this Agreement.
C. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants
and represents that Consultant has diligently conducted a search and inventory of Consultant's
economic interests, as the term is used in the regulations promulgated by the Fair Political
Practices Commission, and has determined that Consultant does not, to the best of Consultant's
knowledge, have an economic interest which would conflict with Consultant's duties under this
agreement.
D. Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further
warrants and represents that Consultant will not acquire, obtain, or assume an economic interest
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 6
during the term of this Agreement which would constitute a conflict of interest as prohibited by
the Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further
warrants and represents that Consultant will immediately advise the City Attorney of City if
Consultant learns of an economic interest of Consultant's which may result in a conflict of
interest for the purpose of the Fair Political Practices Act, and regulations promulgated
thereunder.
F. Specific Warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant, nor Consultant's immediate
family members, nor Consultant's employees or agents ("Consultant Associates") presently have
any interest, directly or indirectly, whatsoever in any property which may be the subject matter of
the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any
property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other
than as listed in Exhibit A, Paragraph 15.
Consultant further warrants and represents that no promise of future employment,
remuneration, consideration, gratuity or other reward or gain has been made to Consultant or
Consultant Associates in connection with Consultant's performance of this Agreement.
Consultant promises to advise City of any such promise that may be made during the Term of
this Agreement, or for 12 months thereafter.
Consultant agrees that Consultant Associates shall not acquire any such Prohibited
Interest within the Term of this Agreement, or for 12 months after the expiration of this
Agreement, except with the written permission of City.
Consultant may not conduct or solicit any business for any party to this Agreement, or for
any third party which may be in conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City.
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold harmless the City, its elected and
appointed officers and employees, from and against all claims for damages, liability, cost and
expense (including without limitation attorneys' fees) arising out of the conduct of the
Consultant, or any agent or employee, subcontractors, or others in connection with the execution
of the work covered by this Agreement, except only for those claims arising from the sole
negligence or sole willful misconduct of the City, its officers, or employees. Consultant's
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 7
indemnification shall include any and all costs, expenses, attomeys' fees and liability incurred by
the City, its officers, agents, or employees in defending against such claims, whether the same
proceed to judgment or not. Further, Consultant at its own expense shall, upon written request
by the City, defend any such suit or action brought against the City, its officers, agents, or
employees. Consultants' indemnification of City shall not be limited by any prior or subsequent
declaration by the Consultant.
8. Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a timely and proper manner
Consultant's obligations under this Agreement, or if Consultant shall violate any of the
covenants, agreements or stipulations of this Agreement, City shall have the right to terminate
this Agreement by giving written notice to Consultant of such termination and specifying the
effective date thereof at least five (5) days before the effective date of such termination. In that
event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and
other materials prepared by Consultant shall, at the option of the City, become the property of the
City, and Consultant shall be entitled to receive just and equitable compensation for any work
satisfactorily completed on such documents and other materials up to the effective date of Notice
of Termination, not to exceed the amounts payable hereunder, and less any damages caused City
by Consultant's breach.
9. Errors and Omissions
In the event that the City Administrator determines that the Consultants' negligence,
errors, or omissions in the performance of work under this Agreement has resulted in expense to
City greater than would have resulted if there were no such negligence, errors, omissions,
Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein
is intended to limit City's rights under other provisions of this agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any reason, by giving specific
written notice to Consultant of such termination and specifying the effective date thereof, at least
thirty (30) days before the effective date of such termination. In that event, all finished and
unfinished documents and other materials described hereinabove shall, at the option of the City,
become City's sole and exclusive property. If the Agreement is terminated by City as provided in
this paragraph, Consultant shall be entitled to receive just and equitable compensation for any
satisfactory work completed on such documents and other materials to the effective date of such
termination. Consultant hereby expressly waives any and all claims for damages or compensation
arising under this Agreement except as set forth herein.
11. Assignability
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 8
The services of Consultant are personal to the City, and Consultant shall not assign any
interest in this Agreement, and shall not transfer any interest in the same (whether by assignment
or novation), without prior written consent of City. City hereby consents to the assignment of
the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants
identified thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms, designs, plans, procedures,
systems and any other materials or properties produced under this Agreement shall be the sole
and exclusive property of City. No such materials or properties produced in whole or in part
under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in
the United States or in any other country without the express written consent of City. City shall
have unrestricted authority to publish, disclose (except as may be limited by the provisions of the
Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any
such reports, studies, data, statistics, forms or other materials or properties produced under this
Agreement.
13. Independent Contractor
City is interested only in the results obtained and Consultant shall perform as an
independent contractor with sole control of the manner and means of performing the services
required under this Agreement. City maintains the right only to reject or accept Consultant's
work products. Consultant and any of the Consultant's agents, employees or representatives are,
for all purposes under this Agreement,~m independent contractor and shall not be deemed to be
an employee of City, and none of them shall be entitled to any benefits to which City employees
are entitled including but not limited to, overtime, retirement benefits, worker's compensation
benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal
income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible
for the payment of same and shall hold the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this agreement, against the City
unless a claim has first been presented in writing and filed with the City and acted upon by the
City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal
Code, as same may from time to time be amended, the provisions of which are incorporated by
this reference as if fully set forth heroin, and such policies and procedures used by the City in the
implementation of same.
Upon request by City, Consultant shall 'meet and confer in good faith with City for the
purpose of resolving any dispute over the terms of this Agreement.
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 9
15. Attorney's Fees
Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing
party shall be entitled to a judgment against the other for an amount equal to reasonable
attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party
who is awarded substantially the relief sought.
16. Statement of Costs
In the event that Consultant prepares a report or document, or participates in the
preparation of a report or document in performing the Defined Services, Consultant shall include,
or cause the inclusion of, in said report or document, a statement of the numbers and cost in
dollar amounts of all contracts and subcontracts relating to the preparation of the report or
document.
17. Miscellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consultant shall have no authority to act
as City's agent to bind City to any contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals
is/are licensed with the State of California or some other state as a licensed real estate broker or
salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are
licensed real estate brokers or salespersons.
C. Notices
All notices, demands or requests provided for or permitted to be given pursuant to this
Agreement must be in writing. All notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served or deposited in the United
States mail, addressed to such party, postage prepaid, registered or certified, with return receipt
requested, at the addresses identified herein as the places of business for each of the designated
parties.
D. Entire Agreement
This Agreement, together with any other written document referred to or contemplated
herein, embody the entire Agreement and understanding between the parties relating to the
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 10
subject matter hereof. Neither this Agreement nor any provision hereof may be amended,
modified, waived or discharged except by an instrument in writing executed by the party against
which enforcement of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and represents to the other party that it
has legal authority and capacity and direction fzom its principal to enter into this Agreement, and
that all resolutions or other actions have been taken so as to enable it to enter into this
Agreement.
F. Governing Law/Venue
This Agreement shall be governed by and construed in accordance with the laws of the
State of Caiifornia. Any action arising under or relating to this Agreement shall be brought only
in the federal or state courts located in San Diego County, State of Caiifornla, and if applicable,
the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and
performance hereunder, shall be the City of Chula Vista.
[end of page. next page is signature page.]
2ptyl2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 11
Signature Page
to
Agreement between City of Chula Vista and The Meyers Group
for Market Analysis and Absorption Projection Services
for Community Facilities District No. 2000-1
IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby
indicating that they have read and understood same, and indicate their full and complete consent
to its terms:
Dated: _, 2000 City of Chula Vista
by:
Dave Rowlands, City Manager
Attest:
Susan Bigelow, City Clerk
Approved as to form:
John M. Kaheny, City Attorney
Dated: The Meyers Group
By:
Peter F. Dennehy
Managing Director
By:
Exhibit List to Agreement
( X ) Exhibit A.
( ) Exhibit B.
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 12
Exhibit A
to
Agreement between
City of Chula Vista
and
The Meyers Group
1. Effective Date of Agreement: May 9, 2000
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of the State of California
( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the
State of California
( ) Industrial Development Authority of the City of Chula Vista, a
( ) Other: _,
("City")
3. Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant: The Meyers Group
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
( X ) Corporation
6. Place of Business, Telephone and Fax Number Of Consultant:
777 South Pacific Coast Highway, Suite 100
Solana Beach, CA 92075
Voice Phone (619) 792-8276 x.224
Fax Phone (619) 792-8944
2pry 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 13
i I ! 11
7. General Duties:
A. Consultant shall prepare a Market Analysis and Absorption Projection for the Property for
the formation of proposed Community Facilities District No. 2000-1 (Sunbow II). The Property
for the purpose of this agreement is generally the area west of Otay Ranch Spa 1 West, south of
Telegraph Canyon Road.
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
1. Materials Review and Locational Assessment: Review all relevant materials
compiled by City to date relative to the Sunbow II community such as site plans,
previous market studies, pertinent development agreements, etc. Information on the
infrastructure improvements planned in the project area will be analyzed in terms
of impact on anticipated development in the area.
2. Definition of Competitive Market Area: Consultant shall determine the most
appropriate competitive market area for each product type proposed for the subject
project. Determination will be made based on existing and planned transportation
routes, natural and man-made geographic boundaries, patterns of housing and
.commercial growth, historical market perceptions, etc.
3. Economic and Demo_maphic Overview: Consultant shall compile pertinent
demographic data for the San Diego County and South Bay area and analyze in the
context of future development such as that proposed at the project. Data to be
compiled will include population and household growth trends, employment growth
and distribution, household income levels, age distribution, etc. Data will be utilized
to help determine anticipated future demand potential for residential and commercial
development in the San Diego County market area and in the South Bay market area
in particular.
4. Historical Residential Market Data: Consultant shall compile relevant
historical data on the San Diego County and South Bay market area for-sale housing
markets. Key residential market factors to be examined will include such things as
new detached home sales and inventory trends, sales and inventory by price range,
sales rates by price range, building permit issuance, resale market trends, etc.
5. Active Residential Project Overview: Consultant shall survey residential
projects (detached, etc.) in the project's relevant market area (largely the South
Bay). Project information will include market orientation, number of units planned,
offered and sold, product types, square footage range, base price ranges, premiums,
incentives, amenities, buyer and/or tenant profile, absorption rate, etc. As part of
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 14
this analysis, Consultant shall evaluate recent price changes and an absorption
analysis will be conducted for the sell-out of active projects.
6. Master Planned Community Case Studies: A selected number of similar
large-scale residential projects in the San Diego County market area shall be
analyzed by the Consultant. Survey will focus on key characteristics (size, setting,
product army, unit and price ranges, community amenities, buyer profiles), sales
performance (yearly sales, marketing characteristics), and other comments. Survey
will be used to identify the annual absorption potential and market capture of the
San Diego County housing market achieved by other well-segmented master
planned communities and will be used to assess sales and market capture
projections.
7. Proposed Project Summary and Detailed Project Buildout: Consultant shall
compile and analyze information on the most relevant and major planned and
proposed residential developments in the competitive market area for the Stmbow
li development. To the extent available, detailed information will be presented for
each. project (units, timing, pricing, etc.). This analysis will cover all projects in
various stages of the approval process in the South Bay market area. Consultant
shall prepare a market-driven buildout projection for the proposed large-scale South
Bay residential projects for use in reconciling annual supply and demand
projections.
8. Demand Analysis: Consultant shall conduct a statistical demand analysis
to quantify the future demand potential for each type of development proposed for
Sunbow II (for-sale residential, etc.). Demand will be based on a combination of
statistical and judgmental methodologies, and will result in annual demand
projections over the relevant time fxame of the subject project.
9. Conclusions: Consultant shall analyze all of the above information and draw
conclusions relative to current and future market trends and assess the potential for
the development and absorption of residential uses as proposed for Sunbow II.
10. Absorption Projection: Based on the above analysis, Consultant shall
provide written recommendations with regard to anticipated absorption of the
proposed residential development in the Sunbow II project. Absorption estimates
will take into account such things as expected market trends, community
positioning, infi~astmcture timing, etc. Absorption estimates will cover the
anticipated period to build-out of the community on a quarterly or annual basis
(format to be determined with appraiser).
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 15
11. Consultant will attend all coord'mation meetings and work with the project
appraiser to ensure the most accurate results.
12. Consultant will provide check prints (as required by the City) of the Market
Analysis and Market Projection for comments at the coordination meetings.
13. Consultant will provide to the City 25 bound copies of the Market Analysis
and Market Projection upon completion.
14. Consultant will provide an electronic version of the absorption study in a
format acceptable to City so that the City can make the report available to the
underwriter or other party.
15. Consultant will work with the Property owners to obtain the following:
Detailed information on current business plan projections for the
development (absorption, product pricing and lot or land values), as
well as details on proposed residential, timing, phasing, etc) .
B. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
( ) Other:
C. Dates or Time Limits for Delivery of Deliverables:
A final market absorption study and market analysis shall be delivered to the
City on or before July 5, 2000. The delivery date may be revised as approved by the City
Engineer.
D. Date for completion of all Consultant services:
Upon completion of the absorption study to the satisfaction of the City's
Director of Public Works but no later than
9. Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
( ) Employer's Liability Insurance coverage: $1,000,000.
(X) Commercial General Liability Insurance including Automobile Liability:
$1,000,000.
( ) Errors and Omissions insurance: None Required (included in Commercial General
Liability coverage).
( ) Errors and Omissions Insurance: $250,000 (not included in Commercial General
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 16
Liability coverage).
10. Materials Required to be Supplied by City to Consultant: NA
11. Compensation:
A. (X) Single Fixed Fee Arrangement.
For performance of all of the Defined Services by Consultant as herein required, City shall pay a
single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth
below:
Single Fixed Fee Amount: $12,500, payable as follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
Delivery of a draf~ Market Analysis and Market Projection $6,000
Delivery of completed Market Analysis and Market Projection $6,500
which is acceptable to the City's Director of Public Works
( ) 1. Interim Monthly Advances. The City shall make interim monthly advances
against the compensation due for each phase on a percentage of completion basis for
each given phase such that, at the end of each phase only the compensation for that
phase has been paid. Any payments made hereunder shall be considered as interest
free loans which must be returned to the City if the Phase is not satisfactorily
completed. If the Phase is satisfactorily completed, the City shall receive credit
against the compensation due for that phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each interim payment such that, at the end
of the phase, the full retention has been held back from the compensation due for that
phase. Percentage of completion of a phase shall be assessed in the sole and
unfettered discretion by the Contracts Administrator designated herein by the City,
or such other person as the City Manager shall designate, but only upon such proof
demanded by the City that has been provided, but in no event shall such interim
advance payment be made unless the Contractor shall have represented in writing that
said percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this agreement
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 17
to a time and materials basis of payment.
B. ( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined Services by Consultant as are separately
identified below, City shall pay the fixed fee associated with each phase of Services, in the
amounts and at the times or milestones or Deliverables set forth. Consultant shall not
commence Services under any Phase, and shall not be entitled to the compensation for a
Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase.
Phase Fee for Said Phase
1. $
2. $
3. $
( ) 1. Interim Monthly Advances. The City shall make interim monthly advances
against the compensation due for each phase on a percentage of completion basis for
each given phase such that, at the end of each phase only the compensation for that
phase has been paid. Any payments made hereunder shall be considered as interest
free loans which must be returned to the City if the Phase is not satisfactorily
completed. If the Phase is satisfactorily completed, the City shall receive credit
against the compensation due for that phase. The retention amount or pementage set
forth in Paragraph 19 is to be applied to each interim payment such that, at the end
of the phase, the full retention has been held back from the compensation due for that
phase. Percentage of completion of a phase shall be assessed in the sole and
unfettered discretion by the Contracts Administrator designated herein by the City,
or such other person as the City Manager shall designate, but only upon such proof
demanded by the City that has been provided, but in no event shall such interim
advance payment be made unless the Contractor shall have represented in writing that
said percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this agreement
to a time and materials basis of payment.
C. ( ) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as herein required, City shall pay Consultant
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 18
for the productive hours of time spent by Consultant in the performance of said Services, at
the rates or mounts set forth in the Rate Schedule hereinbelow according to the following
terms and conditions:
( ) Not-to-Exceed Limitation on Time and Materials Arrangement
Notwithstanding the expenditure by Consultant of time and materials in excess of
said Maximum Compensation amount, Consultant agrees that Consultant will perform all
of the Defined Services herein required of Consultant for $ including all
Materials, and other "reimbursables" ("Maximum Compensation").
( ) Limitation without Further Authorization on Time and Materials
Arrangement
At such time as Consultant shall have incurred time and materials equal to
("Authorization Limit"), Consultant shall not be entitled to any addi-
tional compensation without further authorization issued in writing and approved by the City.
Nothing herein shall preclude Consultant from providing additional Services at Consultant's
own cost and expense.
Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
( ) Hourly rates may increase by 6% for services rendered after [month], 19 , if
delay in providing services is caused by City.
12. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by Consultant in the performance of services
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 19
herein required, City shall pay Consultant at the rates or amounts set forth below:
( ) None, the compensation includes all costs.
Cost or Rate
(X) Copies, travel, data purchases, other expenses
not to exceed $1,000: At cost
Copies, not to exceed $ :
Travel, not to exceed $__:
Printing, not to exceed $__:
Postage, not to exceed $__:
Delivery, not to exceed $__:
Long Distance Telephone Charges,
not to exceed $
Other Actual Identifiable Direct Costs:
_, not to exceed $ :
_, not to exceed $ :
13. Contract Administrators:
City: Donna Snider, Civil Engineer
Consultant: Peter Deunehy, Managing Director
14. Liquidated Damages Rate: NA
( ) $ per day.
( ) Other:
15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest
Code:
( x ) Not Applicable. Not an FPPC Filer.
( ) FPPC Filer
( ) Category No. 1. Investments and sources of income.
( ) Category No. 2. Interests in real property.
( ) Category No. 3. Investments, interest in real property and sources of income
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 20
subject to the regulatory, permit or licensing authority of the department.
Category No. 4. Investments in business entities and sources of income
which engage in land development, construction or the acquisition or sale of
real property.
Category No. 5. Investments in business entities and sources of income of
the type which, within the past two years, have contracted with the City of
Chula Vista (Redevelopment Agency) to provide services, supplies,
materials, machinery or equipment.
Category No. 6. Investments in business entities and sources of income of
the type which, within the past two years, have contracted with the designated
employee's department to provide services, supplies, materials, machinery or
equipment.
Category No. 7. Business positions.
( ) List "Consultant Associates" interests in real property within 2 radial miles of Project
Property, if any:
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
n/a
18. Bill Processing:
A Consultant's Billing to be submitted for the following period of time:
( ) Monthly
( ) Quarterly
( x ) Other: Completion of Market Analysis and Market Projection
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 21
COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 5/16/00
ITEM TITLE: Resolution Waiving the consultant selection process as
impractical, approving an agreement with McGill Martin Self, Inc. as project
manager and special tax consultant, amending agreement with Brown, Diven,
Hessell & Brewer LLP as bond counsel, amending agreement with Fieldman,
Rolapp & Associates as financial advisor, and amending agreement with
Stone & Youngberg LLC as underwriter associated with Community
Facilities District No. 2000-1 (Sunbow I~) and authorizing the Mayor to
. execute said agreement and amendments.
SUBMITTED BY: Director of Public Works ~
REVIEWED BY: City Manager ~ ~, ~ (4/5ths Vote: Yes No X)
In compliance with Council Policy, ACI Sunbow, LLC submitted an Application for establishing
Community Facilities District No. 2000-1 ("CFD 2000-1") to fund the construction of certain
improvements serving some of the Sunbow II properties in the amount of approximately $ 19.5
million. Council approved the Report regarding the application and initiated the proceedings on May
2. In another item on this agenda (which was continued from the meeting of May 9, 2000), Council
is requested to approve a Reimbursement Agreement with the developer and agreements with an
appraiser and market absorption consultant.. This item will consider approving the rest of the
financing team for CFD 2000-1. The Reimbursement Agreement requires the developer to advance
funds to the City for the payment of all initial consulting and administration costs and expenses
related to the formation of CFD 2000-1.
RECOMMENDATION: It is recommended that Council adopt the resolution waiving the
consultant selection process as impractical and approving the agreement and amendments with the
four consultants.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
This item includes retaining the four additional consultants to be part of a financing team required to
form CFD 2000-1. The schedule for the district anticipates a bond issuance in August, thereby
making a standard consultant selection process impractical because the selection process typically
takes 2-3 months (Request for proposals, evaluations, interviews, etc). Additionally, this is the team
currently working on CFI) 99-1 (Otay Ranch SPA 1 Villages 1 and 5 and West) and as such, has
extensive knowledge of the development in the Eastern Territories including Sunbow 1I. Staff has a
high level of confidence in this team, the team has demonstrated a high level of expertise and for
Page 2, Item __
Meeting Date 5/16/00
these reasons staff recommends that Council waive the consultant selection process for these
consultants.
The developer, Sunbow Il, LLC has advanced funds for all costs associated with retaining the
financing team including City staff costs. Should the CFD be successfully formed, the fees will be
funded via the Improvement Fund of the CFD and the developer will be eligible for reimbursement
for the funds advanced. The developer has deposited $167,000 with the City to initiate the
proceedings for the CFD pursuant to a reimbursement agreement. Total costs are shown below in
Table A.
TABLE A
Developer CFD 2000-1 Total FY 99/00(estimated)
Consultant Advance Proceeds CFD 2000-1 All Contractsl
Brown Diven& Hessel, LLP $ 10,000 $ 27,500 $ 37,500 $ 82,500
Stone and Youngberg 0 175,000 175,000 482,900
Fieldman~ Rolapp 17,000 28~000 45,000 90,000
McGill Martin Self 70,000 20,000 90,000 1,800,000
Bruce Hull and Assoc. 30,000 0 30,000 80,000
The Meyers Group 13,500 0 13,500 64,500
City Administration 26,500 13,500 40,000 NA
TOTAL $167,000 $ 264,000 $ 431,000 $ 2,599,900,
Agreements to retain the services of the appraiser (Hull) and market absorption specialist (Meyers
Group) are included as another item on tonight's agenda.
Bond Counsel
The City has utilized the services of the bond counsel firm of Brown, Diven, Hessell & Brewer, 1 ,l ,P
for most, if not all, of the City's infrastructure financing districts spanning a period of 15 years. This
firm is a San Diego based firm and one of the most highly regarded legal firms in the state
specializing in land based financing. Their fee structure for the work on these districts is very
competitive and is fully funded from the proceeds of the bond issues. During their work with the
City, they have been instrumental in drafting the City's infrastructure financing policies. Because of
their in depth knowledge of the City, the City's policies, and the City's developers, and their
excellent working relationship with City staff developed over many years of service, staff
recommends that this firm act as bond counsel for CFD 2000-1. This firm presently has an
agreement with the City for all the CFD work proposed for the Otay Ranch territories. Staff
recommends an amendment to this agreement to include the Sunbow II area.
1 Reflects charges through March of this fiscal year plus estimated charges to be paid before year end (July 2000)
on all City contracts.
Page 3, Item __
Meeting Date 5/16/00
Underwriter
The function of the underwriter is to assist in developing an overall financing plan, structuring the
debt issue in order to minimize interest costs, to purchase the debt from the CFD and market the
bonds to the investment community. Stone and Youngberg has underwritten more California
assessment district bonds than all other firms combined, including a number of the City's bond
issues. Unlike most underwriting firms, Stone & Youngberg maintains an office in San Diego,
making the lead bankers highly accessible during the course of the transaction. The finn is the
underwriter of the City's latest bond issue (CFD 99-1) and will be the underwriter for all future
financing districts in the Otay Ranch terhtory pursuant to their existing agreement with the City.
Stone & Youngberg has an in depth knowledge of the Eastern Territories due to their involvement in
so many of the City's financing districts. This experience enables the underwriter to successfully
market the bonds at the lowest interest rates. Staff recommends the consultant selection process be
waived as impractical because of the knowledge and experience Stone & Youngberg can bring in
marketing the bonds to the benefit of the future property owners. Staff recommends an amendment to
their agreement to include the Sunbow II area.
Financial Advisor
The financial advisor's role is to assist in analyzing the financial feasibility of the project in order to
insure that all city policy criteria are met, assist in structuring the debt issue, assist in negotiating a
fair price for the bonds in order to minimize interest costs, and coordinate the activities of the entire
financing team. Fieldman, Rolapp & Associates was selected as the financial advisor for all
financing districts in the Otay Ranch territory. The firm has valuable knowledge of the current and
future development issues in the Eastern Territories. Fieldman, Rolapp & Associates is one of the
most respected financial advisory firms in the state, especially in the area of land-based financing,
and based on their current performance in CFD 97-3 and CFD 99-1, will be a valuable part of the
financing team for the Sunbow 1I CFD. Staff recommends an amendment to their agreement to
include the Sunbow 11 area.
Project Manager and Special Tax Consultant
The project manager's role is to coordinate and schedule the work of the financing team keeping the
project on schedule and ensuring that issues are addressed. The Special Tax Consultant's role is to
recommend CFI) boundaries, improvements, and the tax formula. McGill Martin Self, Inc. was
selected for this role for CFD 99-1(Otay Ranch Spa I Villages 1 and 5 and West). The firm has
demonstrated expertise in project management and as a special tax consultant. Their knowledge of
the Eastern Territories is extensive and up-to-date. Staff recommends waiving the consultant
selection process and entering into an agreement for project management and special tax consultant
services for CFD 2000-1.
Page 4, Item __
Meeting Date 5/16/00
Staff recommends that the City's consultant selection process be waived in the interest of providing a
team with extensive knowledge and experience in their respective fields and within this region of the
County and that these four consultants be retained as part of the financing team. Doing so will allow
the project to proceed rapidly meeting the demands of the development community. Additionally, the
consultant selection process is lengthy and consumes time that would be better used in analyzing the
issues of the proposed CFD resulting in the City's interests being materially better served.
The fees proposed by the consultants are comparable to those fees charged for existing financing
districts. There will be no direct impact on the General Fund or the City. All costs will be funded by
the developer and/or property owners and apportioned consistent with the relative benefits received
from the improvements being financed. The agreement and amendments are substantially in the
form of the City's standard two-party agreement.
Procedure for formation of CFD 2000-1
Following are the key actions that Council will take during the proceedings for CFI) 2000-1:
1. Approve the Resolution of Intention (ROI) to establish the CFD on May 23, 2000.
2. Public Hearing, voter's election, and levy of the special taxes on June 20, 2000.
3. Bond Sale during August 2000.
Description of the proposed CFD 2000-01
Exhibit 1 presents the boundaries of the proposed CFD which includes parcels located within
Sunbow 1I. Certain parcels (Phase 1) within Sunbow II are not proposed for inclusion in this district
because these parcels are fully developed including all the related infrastructure. At build out, the
district would contain a total of 595 Single Family Residences.
The developer is proposing CFD financing of the following improvements:
· Telegraph Canyon Road
· Medical Center Road/Brandywine
· East Palomar Street - Phases IA, IB, IC & IIA
· Off-site Poggi Sewer
· Olympic Parkway - West of Brandywine
· Paseo Ladera
· Medical Center Court
· Public Facilities DIF
Page 5, Item __
Meeting Date 5/16/00
The construction cost of these improvements is estimated at $19.5 million (including Public
Facilities DIF of $2.8 million), of which only $ 8 million would be financed by CFD 2000-01. Other
costs associated with the CFD are estimated at $2 million, for a total levy of $10 million.
FISCAL IMPACT: The developer will pay all costs and has deposited money to fund initial
consultant and City staff costs in accordance with the proposed Reimbursement Agreement. Such
monies are eligible for reimbursement upon a successful sale of bonds. The City will receive the
benefit of the full cost recovery for City staff (estimated at $40,000).
Exhibits: 1. Benefit Area
H:~HOMEXENGINEERXAGENDA\SBCFD-4.DOC by DDS May 10, 2000
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA,
CALIFORNIA, WAIVING THE CONSULTANT SELECTION PROCE.SS AS
IMPRACTICAL, APPROVING THE AGREEMENT WITH McGILL MARTIN
SELF, INC. AS PROJECT MANAGER AND SPECIAL TAX CONSULTANT,
AMENDING AGREEMENT WITH BROWN, DIVEN, HESSELL & BREWER
LLP AS BOND COUNSEL, AMENDING AGREEMENT WITH FIELDMAN,
ROLAPP & ASSOCIATES AS FINANCIAL ADVISOR, AND AMENDING
AGREEMENT WITH STONE & YOUNGBERG LLC AS UNDERWRITER
ASSOCIATED WITH COMMUNITY FACILITIES DISTRICT NO. 2000-1
(SUNBOW II) AND AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENTS AND AMENDMENTS
WHEREAS, ACI Sunbow, LLC has submitted an application with the City of Chula Vista
for establishing Community Facilities District No. 2000-1 ("CFD 2000-1 ") to fund the construction
of certain improvements serving some of the Sunbow II properties in the amount of approximately
$19.5 million; and
WHEREAS, Council approved the Report regarding the application and initiated the
proceedings on May 2, 2000; and
WHEREAS, staffrecommends establishing a financing team of consultants to process CFD
2000-1; and
WHEREAS, ACI Sunbow, LLC entered into an agreement with the City, approved by
Council on May 9, 2000 to memorialize the terms and conditions of advancing funds to retain the
financing team and receiving reimbursements for such advances; and
WHEREAS, Council approved agreements with an appraiser and market absorption
consultant on May 9, 2000; and
WHEREAS, approval of these agreements will complete the financing team for Community
Facility District 2000-1; and
WHEREAS, staff reconnnends the Consultant Selection process be waived because it is
in the City's best interest for the following reasons:
1. Consultants have demonstrated extensive knowledge of the Eastern Territories and
recent City financing districts;
2. Brown Diven and Hessell, LLP is one of the most highly regarded legal firms in
the state specializing in land based financing and is knowledgeable in the City's
infrastructure financing policies; and
3. Stone and Youngberg LLC knowledge of the Eastern Territories enables the
Consultant to market the bonds at the lowest interest rates.
and the following circumstances make the consultant selection process impractical:
1. The need to expedite the formation of the proposed Community Facilities District
to accommondate a bond sale in August of this year and the consultant selection
process takes up to 3 months; and
2.The consultant fees are competitive.
WHEREAS, staff recommends approving an agreement with McGill Martin Self, Inc. as
project manager and special tax consultant, amending an agreement with Brown, Diven, Hessell
& Brewer LLP as bond counsel, amending an agreement with Fieldman, Rolapp & Associates as
financial advisor, and amending an agreement with Stone & Youngberg LLC as underwriter.
NOW, THEREFORE, IT IS HEREBY RESOLVED:
SECTION 1. The above recitals are all true and correct and incorporated herein.
SECTION 2. The Consultant Selection Process is hereby waived and the agreement with
McGill Martin Self, Inc. as project manager and special tax consultant, the amendment to an
agreement with Brown, Diven, Hessell & Brewer LLP as bond counsel, the amendment to an
agreement with Fieldman, Rolapp & Associates as financial advisor, and the amendment to an
agreement with Stone & Youngberg LLC as underwriter are approved substantially in the forms
submitted. The Mayor is hereby authorized to execute the final form of each such agreement and
amendments to agreements on behalf of the City. The Mayor, subject to the review of the City
Attorney, is authorized to approve changes in such agreement and amendment to agreements in
substantially the form presented with such minor modifications as may be required or approved
by the City Attorney.
PREPARED BY: APPROVED AS TO FORM BY:
John P. Lippitt Jo./l,l~Kaheny
Director of Public Works City Attorney
H:\home\attomeyXcfd00-1McGill Bro~vn Fieldman agr.
2
Agreement between
City of Chula Vista
and
McGill Martin Self, Inc.
for Project Management and Financial Services
for Community Facility District 2000-1
(Sunbow II)
This agreement ("Agreement"), dated May 16, 2000 for the purposes of reference only, and
effective as of the date last executed anless another date is otherwise specified in Exhibit A,
Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such
("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on the
attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A,
paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A,
paragraph 6 ("Consultant"), and is made with reference to the following facts:
WHEREAS, Ayres Land Company, Inc., as manager of ACI Sunbow, LLC, submitted an
application for establishment of Community Facilities District for Council consideration; and
WHEREAS, there is a need for project management and special tax consultant services in
order to ensure the timely formation ora Community Facility Distr/ct; and
Whereas, Consultant was selected based on the quality of previous similar work performed
in association with the City's formation of Community Facilities.District 99-1; and,
Whereas, the consultant selection process was waived due to (1) the need to expedite the
formation of the proposed Community Facilities District 2000-1 in order to meet an August deadline
to sell bonds and the City's consultant selection process takes up to three months, (2) Consultant's
familiarity with the community, and (3) Consultant's fees are competitive; and
Whereas, Consultant warrants and represents that they are experienced and staffed in a
manner such that they are and can prepare and deliver the serviceq required of Consultant to City
within the time frames herein provided all in accordance with the terms and conditions of this
Agreement;
(End of Recitals. Start of Obligatory Provisions.)
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 1
Obligatory Provisions Pages
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually
agree as follows:
1. Consultant's Duties
A. General Duties
Consultant shall perform all of the services described on the attached Exhibit A, Paragraph
7, entitled "General Duties"; and,
B. Scope of Work and Schedule
In the process of performing and delivering said "General Duties", Consultant shall also
perform all of the services described in Exhibit A, Paragraph 8, entitled" Scope of Work and
Schedule", not inconsistent with the General Duties, according to, and within the time frames set
forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A,
Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement.
The General Duties and the work and deliverables required in the Scope of Work and Schedule shall
be herein referred to as the "Defined Services". Failure to complete the Defined Services by the
times indicated does not, except at the option of the City, operate to terminate this Agreement.
C. Reductions in Scope of Work
City may independently, or upon request fi.om Consultant, fi.om time to time reduce the
Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and
Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding
reduction in the compensation associated with said reduction.
D. Additional Services
In addition to performing the Defined Services herein set forth, City may require Consultant
to perform additional consulting services related to the Defined Services ("Additional Services"),
and upon doing so in writing, if they are within the scope of services offered by Consultant,
Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate
Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All
compensation for Additional Services shall be paid monthly as billed.
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 2
E. Standard of Care
Consultant, in performing any Services under this agreement, whether Defined Services or
Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily
exercised by members of the profession currently practicing under similar conditions and in similar
locations.
F. Insurance
Consultant represents that it and its agents, staff and subconsultants employed by it in
connection with the Services required to be rendered, are protected against the risk of loss by the
following insurance coverages, in the following categories, and to the limits specified, policies of
which are issued by Insurance Companies that have a Best's Rating of"A, Class V' or better, or shall
meet with the approval of the City:
Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage
in the mount set forth in the attached Exhibit A, Paragraph 9.
Commercial General Liability Insurance including Business Automobile Insurance coverage
in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each
project away from premises owned or rented by Consultant, which names City as an Additional
Insured, and which is primary to any policy which the City may otherwise carry ("Primary
Coverage"), and which treats the employees of the City in the same manner as members of the
general public CCross-liability Coverage").
Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless
Errors and Omissions coverage is included in the General Liability policy.
G. Proof of Insurance Coverage.
(1) Certificates of Insurance.
Consultant shall demonstrate proof of coverage herein required, prior to the
commencement of services required under this Agreement, by delivery of Certificates of Insurance
demonstrating same, and further indicating that the policies may not be canceled without at least
thirty (30) days written notice to the Additional Insured.
(2) Policy Endorsements Required.
In order to demonstrate the Additional Insured Coverage, Primary Coverage and
Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy,
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 3
· "1 F
Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be
reviewed and approved by the Risk Manager.
H. Security for Performance.
(1) Performance Bond.
In the evem that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide a Performance Bond (indicated by a check mark in the parenthetical space immediately
preceding the subparagraph entitled "Performance Bond"), then Consultant shall provide to the City
a performance bond by a surety and in a form and mount satisfactory to the Risk Manager or City
Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said
Paragraph 19, Exhibit A.
(2) Letter of Credit.
In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately
preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an
irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank
a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this
Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory
to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term,
"Letter of Credit", in said Paragraph 19, Exhibit A.
(3) Other Security
In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to
provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in
the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then
Consultant shall provide to the City such other security therein listed in a form and amount
satisfactory to the Risk Manager or City Attorney.
I. Business License
Consultant agrees to obtain a business license from the City and to otherwise comply with
Title 5 of the Chula Vista Municipal Code.
2. Duties of the City
A. Consultation and Cooperation
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 4
City shall regularly consult the Consultant for the purpose of reviewing the progress of the
Defined Services and Schedule therein cOntained, and to provide direction and guidance to achieve
the objectives of this agreement. The City shall permit access to its office facilities, files and records
by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the
information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further
understanding that delay in the provision of these materials beyond 30 days after authorization to
proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this
agreement.
B. Compensation
Upon receipt of a properly prepared billing from Consultant submitted to the City
periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly,
on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for
all services rendered by Consultant according to the terms and conditions set forth in Exhibit A,
Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark" next
to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 19
of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A,
Paragraph 12.
All billings submitted by Consultant shall contain sufficient information as to the propriety
of the billing to permit the City to evaluate that the amount due and payable thereunder is proper,
and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 18 (C)
to be charged upon making such payment.
3. Administration of Contract
Each party designates the individuals ("Contract Administrators") indicated on Exhibit A,
Paragraph 13, as said party's contract administrator who is authorized by said party to represent them
in the routine administration of this agreement.
4. Term.
This Agreement shall terminate when the Parties have complied with all executory
provisions hereof.
5. Liquidated Damages
The provisions of this section apply ifa Liquidated Damages Rate is provided in Exhibit A,
Paragraph 14.
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 5
00-/56
It is acknowledged by both parties that time is of the essence in the completion of this
Agreement. It is difficult to estimate the amount of damages resulting from delay in performance.
The parties have used their judgment to arrive at a reasonable amount to compensate for delay.
Failure to complete the Defined Services within the allotted time period specified in this
Agreemem shall result in the following penalty: For each consecutive calendar day in excess of the
time specified for the completion of the respective work assignment or Deliverable, the consultant
shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate
provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate").
Time extensions for delays beyond the consultant's control, other than delays caused by the
Cit3,, shall be requested in writing to the City's Contract Administrator, or designee, prior to the
expiration of the specified time. Extensions of time, when granted, will be based upon the effect of
delays to the work and will not be granted for delays to minor portions of work unless it can be
shown that such delays did or will delay the progress of the work.
6. Financial Interests of Consultant
A. Consultant is Designated as an FPPC Filer.
If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is
deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and
disclosure provisions, and shall report economic interests to the City Clerk on the required Statement
of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or
if none are specified, then as determined by the City Attorney.
B. Decline to Participate.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make,
or participate in making or in any way attempt to use Consultant's position to influence a
governmental decision in which Consultant knows or has reason to know Consultant has a financial
interest other than the compensation promised by this Agreement.
C. Search to Determine Economic Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and
represents that Consultant has diligently conducted a search and inventory of Consultant's economic
interests, as the term is used in the regulations promulgated by the Fair Political Practices
Commission, and has determined that Consultant does not, to the best of Consultant's knowledge,
have an economic interest which would conflict with Consultant's duties under this agreement.
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 6
D. Promise Not to Acquire Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further
warrants and represents that Consultant will not acquire, obtain, or assume an economic interest
during the term of this Agreement which would constitute a conflict of interest as prohibited by the
Fair Political Practices Act.
E. Duty to Advise of Conflicting Interests.
Regardless of whether Consultant is designated as an FPPC Filer, Consultant further
warrants and represents that Consultant will immediately advise the City Attorney of City if
Consultant learns of an economic interest of Consultant's which may result in a conflict of interest
for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder.
F. Specific Warranties Against Economic Interests.
Consultant warrants and represents that neither Consultant, nor Consultant's immediate
family members, nor Consultant's employees or agents ("Consultant Associates") presently have any
interest, directly or indirectly, whatsoever in any property which may be the subject matter of the
Defined Services, or in any property within 2 radial miles from the exterior boundaries of any
property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than
as listed in Exhibit A, Paragraph 15.
Consultant further warrants and represents that no promise of future employment,
remuneration, consideration, gratuity or other reward or gain has been made to Consultant or
Consultant Associates in connection with Consultant's performance of this Agreement. Consultant
promises to advise City of any such promise that may be made during the Term of this Agreement,
or for 12 months thereafter.
Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest
within the Term of this Agreement, or for 12 months after the expiration ofth/s Agreement, except
with the written permission of City.
Consultant may not conduct or solicit any business for any party to this Agreement, or for
any third party which may be in conflict with Consultant's responsibilities under this Agreement,
except with the written permission of City.
7. Hold Harmless
Consultant shall defend, indemnify, protect and hold harmless the City, its elected and
appointed officers and employees, from and against all claims for damages, liability, cost and
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 7
expense (including without limitation attomeys' fees) arising out of the conduct of the Consultant.
or an5, agent or employee, subcontractors, or others in connection with the execution of the work
covered by this Agreement, except only for those claims arising from the sole negligence or sole
willful misconduct of the City, its officers, or employees. Consultant's indemnification shall include
any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, agents, or
employees in defending against such claims, whether the same proceed to judgment or not. Further,
Consultant at its own expense shall, upon written request by the City, defend any such suit or action
brought against the City, its officers, agents, or employees. Consultants' indemnification of City
shall not be limited by any prior or subsequent declaration by the Consultant.
8. Termination of Agreement for Cause
If, through any cause, Consultant shall fail to fulfill in a timely and proper mariner
Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants,
agreements or stipulations of this Agreement, City shall have the fight to terminate this Agreement
by giving written notice to Consultant of such termination and specifying the effective date thereof
at least five (5) days before the effective date of such termination. In that event, all finished or
unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared
by Consultant shall, at the option of the City, become the property of the City, and Consultant shall
be entitled to receive just and equitable compensation for any work satisfactorily completed on such
documents and other materials up to the effective date of Notice of Termination, not to exceed the
amounts payable hereunder, and less any damages caused City by Consultant's breach.
9. Errors and Omissions
In the event that the City Administrator determines that the Consultants' negligence, errors,
or omissions in the performance of work under this Agreement has resulted in expense to City
greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall
reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit
City's rights under other provisions of this agreement.
10. Termination of Agreement for Convenience of City
City may terminate this Agreement at any time and for any reason, by giving specific written
notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30)
days before the effective date of such termination. In that event, all finished and unfinished
documents and other materials described hereinabove shall, at the option of the City, become City's
sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph,
Consultant shall be entitled to receive just and equitable compensation for any satisfactory work
completed on such documents and other materials to the effective date of such termination.
2ptyl2.wp Standard Form Two Party Agreemem (Twelfth Revision)
January 20, 1999 Page 8
Consultant hereby expressly waives any and all claims for damages or compensation arising under
this Agreement except as set forth herein.
11. Assignability
The services of Consultant are personal to the City, and Consultant shall not assign any
interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or
novation), without prior written consent of City. City hereby consents to the assignment of the
portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants
identified thereat as "Permitted Subconsultants".
12. Ownership, Publication, Reproduction and Use of Material
All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems
and any other materials or properties produced under this Agreement shall be the sole and exclusive
property of City. No such materials or properties produced in whole or in part under this Agreement
shall be subject to private use, copyrights or patent rights by Consultant in the United States or in
any other country without the express written consent of City. City shall have unrestricted authority
to publish, disclose (except as may be limited by the provisions of the Public Records Act),
distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data,
statistics, forms or other materials or properties produced under this Agreement.
13. Independent Contractor
City is interested only in the results obtained and Consultant shall perform as an independent
contractor with sole control of the manner and means of performing the services required under this
Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant
and any of the Consultant's agents, employees or representatives are, for all purposes under this
Agreement, an independent contractor and shall not be deemed to be an employee of City, and none
of them shall be entitled to any benefits to which City employees are entitled including but not
linfited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave
benefits. Therefore, City will not withhold state or federal income tax, social security tax or any
other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold
the City harmless with regard thereto.
14. Administrative Claims Requirements and Procedures
No suit or arbitration shall be brought arising out of this agreement, against the City unless
a claim has first been presented in writing and filed with the City and acted upon by the City in
accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same
may from time to time be amended, the provisions of which are incorporated by this reference as if
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 9
S-l?
fully set forth herein, and such policies and procedures used by the CiD, in the implementation of
same.
Upon request by City, Consultant shall meet and confer in good faith with City for the
purpose of resolving any dispute over the terms of this Agreement.
15. Attorney's Fees
Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing
party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's
fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded
substantially the relief sought.
16. Statement of Costs
In the event that Consultant prepares a report or document, or participates in the preparation
of a report or document in performing the Defined Services, Consultant shall include, or cause the
inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of
all contracts and subcontracts relating to the preparation of the report or document.
17. Miscellaneous
A. Consultant not authorized to Represent City
Unless specifically authorized in writing by City, Consultant shall have no authority to act
as City's agent to bind City to any contractual agreements whatsoever.
B. Consultant is Real Estate Broker and/or Salesman
If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals is/are
licensed with the State of California or some other state as a licensed real estate broker or
salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are
licensed real estate brokers or salespersons.
C. Notices
All notices, demands or requests provided for or permitted to be given pursuant to this
Agreement must be in writing. Alt notices, demands and requests to be sent to any party shall be
deemed to have been properly given or served if personally served or deposited in the United States
mall, addressed to such party, postage prepaid, registered or certified, with return receipt requested,
at the addresses identified herein as the places of business for each of the designated parties.
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 10
D. Entire Agreement
This Agreement, together with any other written document referred to or contemplated
herein, embody the entire Agreement and understanding between the parties relating to the subject
matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived
or discharged except by an instrument in writing executed by the party against which enforcement
of such amendment, waiver or discharge is sought.
E. Capacity of Parties
Each signatory and party hereto hereby warrants and represents to the other party that it has
legal authority and capacity and direction from its principal to enter into this Agreement, and that
all resolutions or other actions have been taken so as to enable it to enter into this Agreement.
F. Governing Law/Venue
This Agreement shall be governed by and construed in accordance with the laws of the State
of Caiifomia. Any action arising under or relating to this Agreement shall be brought only in the
federal or state courts located in San Diego County, State of California, and if applicable, the City
of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance
hereunder, shall be the City of Chula Vista.
[end of page. next page is signature page.]
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
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Signature Page
to
Agreement between City of Chnla Vista m~d McGill Martin Self, Inc.
for Project Management and Financial Services
for Community Facility District 2000-1
(Sunbow II)
IN WITNESS VG~EREOF, City and Consultant have executed this Agreement thereby
indicating that they have read and understood same, and indicate their full and complete consent
to its terms:
Dated: _, 19__ City of Chula Vista
by:
Stfirley Horton, Mayor
Attest:
Su~an Bigelow, Eity Clerk
Approved as to form:
John M. Kaheny, City Attomey
Dated: McGill Martin Self, Inc.
By:.
Michael R. McGill, PE.
By:.
Harry G. Bun'owes, PE.
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 12
Exhibit List to Agreement
(X) Exhibit A.
Exhibit A
to
Agreement between
City of Chula Vista
and
McGill Martin Self, Inc.
1. Effective Date of Agreement: May 16, 2000
2. City-Related Entity:
(X) City of Chula Vista, a municipal chartered corporation of the State of California
3. Place of Business for City:
City of Chula Vista,
276 Fourth Avenue,
Chula Vista, CA 91910
4. Consultant:
McGill Martin Self, Inc.
Chula Vista, CA 91910
5. Business Form of Consultant:
( ) Sole Proprietorship
( ) Partnership
(X) Corporation
6. Place of Business, Telephone and Fax Number of Consultant:
1500 Newell Avenue, Suite 700
Walnut Creek, Cali£omia 94596-5180
Voice Phone (925) 988-9188
Fax Phone (925) 988-0170
Chula Vista Office (619) 425-1343
Fax Phone (619) 425-1357
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 13
7. General Duties:
The Consultant shall assign Harry BurroWes, as Project Manager for the project and maintain
sufficient local staffing throughout the duration of this project. The Consultant and the Project
Manager shall:
Oversee the establishment of Community Facility District 2000-1 (Sunbow II) (CFD 2000-1);
Develop and maintain concise work plans that identify critical issues; Establish lines of
responsibilities; Prepare and maintain detailed schedule with milestones; Communicate
responsibilities to all parties; Conduct meetings, as needed, to maintain project's schedule;
Document project meetings and decisions including agenda, action plans and minutes; Track project
progress and issue status reports;
Coordinate the work of the financing team; Provide special tax consultant services; Prepare the
Engineer's report or Special Tax Report; Prepare the acquisition/financing agreement; Recommend
financial district boundaries; Coordinate with property owners within the proposed boundaries; Form
financial district; Assist City in the administration of CFD 2000-1; Prepare tables, exhibits and
analyses for the bond sale; Provide CFD 2000-1 audit services and Development Impact Fee (DIF)
audit services related to CFD 2000-1; Review financing documents and prepare staff reports and
Council agenda items.
8. Scope of Work and Schedule:
A. Detailed Scope of Work:
The scope of work tasks have been arranged into three inter-dependent major components
as follow:
8.A. 1 Project Management, Administration and Coordination
The Consultant shall create and maintain a detailed project schedule showing critical path
items and important milestones. The Consultant shall conduct meetings as needed to ensure
that all issues having an impact on the project schedule are addressed and acted upon by the
responsible party in a timely manner to meet the project schedule. The Consultant shall
communicate and coordinate project issues with, but not limited to, all of the following:
Developers, private consultants and engineers, city staff, private and public utilities and
public financing team. For every meeting, the consultant shall prepare a comprehensive
agenda with goals to ach/eve and an action plan listing the responsible parties to perform. On
2ptyl2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 14
bi-weekly basis, or as needed, the Consultant shall provide written progress report for the
project status versus the project schedule.
The Consultant shall ensure compliance with City and State standards and all related
documents.
The Consultant and team will serve as support to City's staff. As such, the Consultant shall
perform all tasks needed to ensure project delivery in a timely manner.
The Consultant shall provide written documentation to the City of all issues, meetings,
project progress and decisions. The Consultant shall be proactive in identifying issues that
impact the project schedule. Once an engineering issue, a policy decision, a financing
decision or other issues are identified, the Consultant shall immediately propose an action
plan and communicate possible solutions to all responsible parties and follow through on
required actions.
8.A.2 Financial District Project Management
The Consultant shall prepare all Council Agenda Reports to the satisfaction of the City
Engineer.
(1) District Formation and Bond Sale
The Consultant shall manage and oversee the progress of District-Formatioa and
Bond Sale. The Consultant shall prepare the Engineer's report or special tax report,
related boundary diagrams, collect available data and shall assist in the development,
review and analysis of all related documents including but not limited to the
Engineer s Report or Special Tax Report, description of improvements, bid
documents, developer reimbursements, cost estimates, cost and quantity audit,
compliance with City's Transportation, Poggi Sewer and Public Facilities
Development Impact Fee programs, appraisal reports, value-to-lien ratios, assessment
and tax formulas(as many as 10 are included), official statement or disclosure
documents, bond purchase agreement, continuing disclosure, and resolutions, etc.
The Consultant shall ensure compliance with City Policies and State laws. The
Consultant shall deliver all final data, information, dislxict diagram, and any other
material produced under this agreement in computer digital files compatible with the
software utilized by the City within two months of completion of the district or
sooner as requested by the City.
2ptyt2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 15
(2) The Consultant shall document in writing all issues, meetings, project progress and
decisions and report thereon to the City Engineer. The Consultant shall monitor the
progress of the Public Financing District and take all necessaD, steps to ensure
efficient and timely district formation and sale of bonds.
(3) The Consultant shall facilitate the district formation and bond sale by monitoring the
progress of district formal/on, determining critical path tasks, acting as departmental
liaison, arranging meetings with City staff, the financial team, engineers, developers,
etc., coordinating information between the various parties, and by performing all
tasks necessary to ensure efficient, timely formation of the district and bond sale.
The Consultant's tasks shall include, but not be limited to, recordation of the
boundary map, provide legal notice, perform work associated with the ballot, update
and amend the special tax report to reflect final costs, amend and record the CFD
boundary map (as necessary), prepare the final special tax report for Council
approval, determine the property owner protest, prepare tables and other information
required by the Underwriter for inclusion in the Official Statement, prepare and
execute a special tax consultant certificate confirming the adequacy of special taxes
to meet debt service requirements for the bond issues; assist in the preparation of
three party agreements with utility companies, if any; assist in the preparation of the
AcquisitionJfmancing Agreement and subsequent amendments, if any, for CFD
2000~1.
(4) The Consultant shall attend Council meetings to present the information to Council
regarding district formation and bond sale or other related items. The Consultant
shall prepare, to the satisfaction of the City Engineer, all Council Agenda reports
necessary for completion of district formation and financing.
8.A.3 Audit Services for CFD 2000-1
(1) General
The Consultant shall be responsible for providing auditing services for facilities
included in CFD 2000-1. These services shall include, but not be limited to,
reviewing the developer's requests for each phased payment for conformity with the
Financing Agreements and City policies, State law, certifying that all costs are
eligible and payments have been paid to the appropriate contractor to ensure that the
acqu/red improvements are lien free, and summarizing all costs to be reimbursed by
the district fund.
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 16
(2) Review Relevant Contract Documents
Consultant shall obtain and review all relevant construction contract documents, the
Special Tax Report, the financing agreement, utility agreements, all change orders,
the as-built drawings, the resolution of intention, Transportation, Public Facilities,
and Poggi Sewer Basin Development Impact Fee programs (DIF), and all other
pertinent documents, City policies and laws.
(3) Meet with Accounting Staff
Consultant shall meet with the developers' and City's accounting staffto identify and
confmu the accounting documents that will be required by the Consultant. Such
documents shall include, but not be limited to, copies of invoices, canceled checks,
change orders, unconditional lien releases, and other documents reflecting the items
constructed and their cost. Improvement costs will be summarized by the consultant
as DIF eligible or not (by type of DIF). Meetings shall be documented in writing by
the Consultant.
(4) Perform Audit Services
The Consultant shall review each payment request submitted to the City for
reimbursement fi:om the District land. The Consultant shall request additional
documentation fi:om the developer as needed. The Consultant shall provide written
documentation to the City to include: 1) an analysis comparing the original estimate
to the actual cost; 2) a letter of audited cost; 3) an executive summary and audit
format; 3) an improvement location map; 4) a City of Chula Vista acceptance letter
or other documentation acceptable to the City Engineer; 5) a summary of hard and
soft costs prorated as DIF (Transportation DIF, Poggi Sewer DIF, and Public
Facilities DIF) eligible and non DIF eligible; 6) a contract summary outlining the
original price, change orders, and final contract price; 7) invoices, canceled checks,
and unconditional lien releases, as provided by the developer; and 8) certification by
the Consultant that the costs are eligible for reimbursement and that the request
complies with the Acquisition/Financing Agreements. Requests for payments shall
be consistent with the terms of the Financing Agreements for the District.
Audit services described above shall be pursuant to the CFD 2000-1
Acquisition/Financing Agreement and other related agreements. The CFD 2000-I
Acquisition/Financing Agreement may list more facilities than can be financed via
CFD 2000-1. For purposes of this Agreement, the Consultant shall complete the
audit of costs (hard and soft costs) for purposes of release of CFD 2000-1 funds in
2ptyl 2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 17
accordance with the Acquisition/Financing Agreement for CFD 2000-1 and for
purposes of establishing DIF credit.
B General
The Consultant shall perform all duties outlined in Exhibit A to the full and complete
satisfaction of the City.
The Consultant shall meet with the Director of Public Works, or his designee, upon
presentation of the Consultant's monthly invoice to review the invoice. Said invoice shall
include a narrative description of the work performed.
C. Date for Commencement of Consultant Services:
(X) Same as Effective Date of Agreement
( ) Other:
D. Dates or Time Limits for Delivery of Deliverables:
Consultant shall complete ail work excluding audit services by September 30, 2000 unless
otherwise approved by the City Engineer.
E. Date for completion of all Consultant services: Same as above.
9. Insurance Requirements:
(X) Statutory Worker's Compensation Insurance
(X) Employer's Liability Insurance coverage: $1,000,000.
(X) Commercial General Liability Insurance: $1,000,000.
( ) Errors and Omissions insurance: None Required (included in Commercial General
Liability coverage).
(X) Errors and Omissions Insurance: $1,000,000 (not included in Commercial General
Liability coverage).
10. Materials Required to be Supplied by City to Consultant: NA
11. Compensation:
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page I$
A. ( ) Single Fixed Fee Arrangement.
For performance of all of the Defined Ser~4ces by Consultant as herein required, City shall
pay a single fixed fee in the mounts and at the times or milestones or for the Deliverables set forth
below:
Single Fixed Fee Amount: , payable as follows:
Milestone or Event or Deliverable Amount or Percent of Fixed Fee
( ) 1. Interim Monthly Advances. The City shall make interim monthly
advances against the compensation due for each phase on a percentage of
completion basis for each given phase such that, at the end of each phase only
the compensation for that phase has been paid. Any payments made
hereunder shall be considered as interest free loans which must be returned
to the City if the Phase is not satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive credit against the
compensation due for that phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each interim payment such that, at
the end of the phase, the full retention has been held back from the
compensation due for that phase. Percentage of completion of a phase shall
be assessed in the sole and unfettered discretion by the Contracts
Administrator designated herein by the City, or such other person as the City
Manager shall designate, but only upon such proof demanded by the City that
has been provided, but in no event shall such interim advance payment be
made unless the Contractor shall have represented in writing that said
percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this
agreement to a time and materials basis of payment.
B. ( ) Phased Fixed Fee Arrangement.
For the performance of each phase or portion of the Defined Services by Consultant as are
separately identified below, City shall pay the fixed fee associated with each phase of Services, in
the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence
Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall
have issued a notice to proceed to Consultant as to said Phase.
2ptyl2.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 19
Phase Fee for Said Phase
1. $
2.
3.
2ply 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 20
( ) 1. Interim Monthly Advances. The City shall make interim monthly
advances against the compensation due for each phase on a percentage of
completion basis for each given phase such that, at the end of each phase only
the comPensation for that phase has been paid. Any payments made
hereunder shall be considered as interest free loans which must be returned
to the City if the Phase is not satisfactorily completed. If the Phase is
satisfactorily completed, the City shall receive credit against the
compensation due for that phase. The retention amount or percentage set
forth in Paragraph 19 is to be applied to each interim payment such that, at
the end of the phase, the full retention has been held back from the
compensation due for that phase. Percentage of completion of a phase shall
be assessed in the sole and unfettered discretion by the Contracts
Administrator designated herein by the City, or such other person as the City
Manager shall designate, but only upon such proof demanded by the City that
has been provided, but in no event shall such interim advance payment be
made unless the Contractor shall have represented in writing that said
percentage of completion of the phase has been performed by the Contractor.
The practice of making interim monthly advances shall not convert this
agreement to a time and materials basis of payment.
C. (X) Hourly Rate Arrangement
For performance of the Defined Services by Consultant as herein required, City shall pay
Consultant for the productive hours of time spent by Consultant in the performance of said Services,
at the rates or amounts set forth in the Rate Schedule hereinbelow according to the following terms
and conditions:
( ) Not~to,Exceed Limitation on Time and Materials Arrangemen~
Notwithstanding the expenditure by Consultant of time and materials in
excess of said Maximum Compensation amount, Consultant agrees that Consultant
will perform all of the Defined Services herein required of Consultant for
$ including all Materials, and other "reimbursables" ("Maximum
Compensataon ).
(X) Limitation without Further Authorization on Time and Materials
Arrangement
At such time as Consultant shall have incurred time and materials equal to
$65,000 for project management and special tax consultant services, $20,000 for
audit services in accordance with Paragraph 8.A.3 of Exhibit A, and $5,000 for
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 21
reimbursement of out of pocket expenses in accordance with Paragraph 12 of Exhibit
A for a total compensation of $90,000, all in accordance with time limits of
deliverables as stated in Paragraph 8.C. of Exhibit A ("Authorization Limit"),
Consultant shall not be entitled to any additional compensation without further
authorization issued in writing and approved by the City Council. Nothing herein
shall preclude Consultant from providing additional Services at Consultant's own
cost and expense.
Rate Schedule
Category of Employee Hourly
of Consultant Name Rate
Sr. Principal Michael McGill $150.00/hour
Principal Harry Burrowes $135.00/hour
Manager Greg Mattson $120.00/hour
Senior Professional Varies $110.00/hour
Associate Professional Varies $ 100.00/hour
Assistant Professional Varies $85.00/hOur -
Drafter, Designer Varies $70.00/hour
Secretary/Clerk/Technical Varies $55.00/hour
12. Materials Reimbursement Arrangement
For the cost of out of pocket expenses incurred by Consultant in the performance of services
herein required, City shall pay Consultant at the rates or amounts set forth below:
( ) None, the compensation includes all costs.
Cost or Rate
(X) Reports, copies, printing, postage, not to exceed $5,000: At cost
( ) Copies, not to exceed $ __:
( ) Travel, not to exceed $__ :
( ) Printing, not to exceed $__ :
( ) Postage, not to exceed $__:
( ) Delivery, not to exceed $ __:
( ) Long Distance Telephone Charges,
not to exceed $
( ) Other Actual Identifiable Direct Costs:
., not to exceed $ __:
, not to exceed $ __:
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 22
13. Contract Administrators:
City: Sohaib AI-Agha, Senior Civil Engineer
Consultant: Harry Burrowes
McGill Martin Self, Inc.
350 Third Avenue, Suite B-6
Chula Vista, CA 91910
Phone: 619-475 - 1343
Fax: 619-475-1357
14. Liquidated Damages Rate: NA
( ) $ per day.
( ) Other:
15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest
Code:
( ) Not Applicable. Not an FPPC Filer.
(X) FPPC Filer
( ) Category No. 1. Invesmaents and sources of income.
( ) Category No. 2. Interests in real property.
(X) Category No. 3. Investments, interest in real property and sources of income
subject to the regulatory, permit or licensing authority of the department.
(X) Category No. 4. Investments in business entities and sources of income
which engage in land development, construction or the acquisition or sale of
real property.
(X) Category No. 5. Investments in business entities and sources of income of
the type 'which, within the past two years, have contracted with the City of
Chula Vista (Redevelopment Agency) to provide services, supplies,
materials, machinery or equipment.
( ) Category No. 6. Investments in business entities and sources of income of
the type which, with/n the past two years, have contracted with the designated
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 23
employee's department to provide services, supplies, materials, machinery or
equipment.
( ) Category No. 7. Business positions.
( ) List "Consultant Associates" interests in real property within 2 radial miles of Project
Property, if any:
16. ( ) Consultant is Real Estate Broker and/or Salesman
17. Permitted Subconsultants:
18. Bill Processing:
Consultant's Billing to be submitted for the following period of time:
( X ) Monthly. The City will use its best effort to remit payments within 30 days.
( ) Quarterly
( ) Other:
Day o£the Period for submission of Consultant's Billing:
(X) First of the Month
( ) 15th Day of each Month
( ) End of the Month
( ) Other:
2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 24
19. City's Account Numbers: Developer deposit account and/or CFD Improvement Fund
(CFD 2000-1)
Security for Performance
( ) Performance Bond, $
( ) Letter of Credit, $
( ) Other Security:
Type:
Amount: $
( ) Retention. If this space is checked, then notwithstanding other provisions to the
contrary requiring the payment of compensation to the Consultant sooner, the City
shall be entitled to retain, at their option, either the following "Retention Percentage"
or "Retention Amount" until the City determines that the Retention Release Event,
listed below, has occurred:
( ) RetentiOn Percentage: %
( ) Retention Amoun[: $
Retention Release Event: ( ) Completion of All Consultant Services
( ) Other:
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2pty 12.wp Standard Form Two Party Agreement (Twelfth Revision)
January 20, 1999 Page 25
FIRST AMENDMENT TO AGREEMENT '.- ~ ~v
BETWEEN
CITY OF CHULA VISTA AND BROWN, DIVEN, HESSELL & BREWER LLP
For Bond Counsel Services related to various financings
Dated March 16, 1999 and approved by Resolution No. 19388
This first amendment to the agreement ("Agreement"), dated for the
purposes of reference only, and effective as of the date last executed, and is made with
reference to the following facts:
RECITALS
WHEREAS, the City of Chula Vista, by Resolution 19388 on March 16, 1999, approved
an Agreement with Brown, Diven, Hessell & Brewer LLP for Bond Counsel services
related to various community facility district financings for infrastructure in the Otay
Ranch territory to take place over the term of the agreement; and
WHEREAS, there is a need for these same services related to a community facility
district in Sunbow II adjacent to the Otay Ranch territory; and
WHEREAS, Consultant was selected based on the quality of previous similar work
performed in association with the City's formation of various other financing districts
over a period of 15 years; and
WHEREAS, the consultant selection process was waived due to (1) the need to expedite
the formation of the proposed Community Facilities District 2000-2imorder to meet an
August deadline to sell bonds and the City's consultant selection process takes up to three
months, (2) Consultant's familiarity with the City, its financing districts and its
infrastructure fmancing policies, (3) Consultant being one of the most kighly regarded
legal firms in the state specializing in land based financing, and (4) Consultant's fees are
competitive; and
WHEREAS, the name of the Consultant has been changed from Brown Diven Hessell &
Brewer LLP to Brown Diven& Hessell, LLP;
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby
mutually agree as follows:
1. Section 7, Paragraph A, of Exhibit A of the Agreement is hereby amended and
restated to read in its entirety as follows:
7. General Duties:
A. "Consultant" shall perform legal services in connection with the proposed
proceedings relating to the formation of one or more community facilities districts
H:~home\engineer\landdev\donnas\SBdiven.doc Final 5/9/00
(collectively, the "CFD") for the purpose of financing infrastructure
improvements in the area of the City known as the Otay Ranch territory and the
Sunbow II territory, including any related issuance of Bonds, under proceedings
conducted pursuant to the provisions of the "Mello-Roos Community Facilites
Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government
Code of the State of California.
Such services as to each CFD shall include:
1. Preparation of all resolutions, notices, bond forms, and other papers and
documents required in the proceedings;
2. Negotiation and preparation of necessary agreements, including but not
limited to, a reimbursement, agreement, an acquisition and financing
agreement and joint community facilities financing agreement(s);
3. Examination of the proceedings related to the formation of the CFD, step
by step, as taken;
4. Appear at all hearings under the proceedings, and attend any meeting
where attendance is required;
5. Review the "Report" of the Special Tax Consultant as it relates to the
proceedings for the formation of the CFD;
6. Review and examine the map showing the area and boundaries of the
CFD;
7. Review the method and formula utilized by the Special Tax Consultant for
the apportionment of the special tax;
8. Participate with the City's financing team to determine the structure of the
bond issue(s);
9. Assisting in the review of those sections of the official statement to be
disseminated in connection with the issuance of any series of bonds
related to authority and security for the bonds, tax-exemption, legal
opinion, litigation, summary of bond indenture, bond purchase agreement
or notice of sale and other supporting documentation relating to the
offering for sale of the bonds;
10. Prepare or review any continuing disclosure agreement required under
SEC Rule 15c2-12.
1 I. Consulting with the underwriter, their legal counsel, rating agencies and
credit enhancement providers;
HShome\engineer\landdev\dormas\SBdiven.doc Final 5/9/00
12. Consulting with the trustee, fiscal agent or paying agent and their counsel;
13. Assist in any election procedure processing, as necesgary and/or required;
14. Issuance of an approving legal opinion attesting to the validity of the
proceedings and the issuance of each series of bonds by each CFD.
Counsel's approving legal opinion will be addressed to each CFD and will
be delivered by us on the date that each series of bonds are exchanged for
their purchase price (the "Closing");
15. Providing any necessary supplemental legal opinions as to the
applicability of the registration requirements of federal securities laws and
other matters related to the issuance of each series of bonds; provided,
however, such opinions do not include the rendering of a 10(b)5 opinion
regarding the official statement; and
16. Instruction and advice to the City and its staff in connection with any of
the foregoing.
2. "Brown Diven Hessell & Brewer LLP" is hereby amended to read "Brown Diven&
Hessel LLP."
3. Except as expressly provided herein all other provisions of the original Agreement
shall remain in full force and effect.
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H:hhome\engineer\landdev\donnas\SBdiven.doc Final 5/9/00
Sen? By: BROWN DIVEN & HESSELL LLP; 858 259 0292; May-11*O0 11:30AM; Page 2/2
SIGNATURE PAGE
TO FII~T AMENDMENT TO
AGI~MEi'CT BETWEEN
CITY OF ~A ~STA ~ BRO~, D~ ~S
For B~ Co~el Se~i~ relat~ to v~o~
Dat~ M~h 16, 1999 ~d ~pprov~ by~o~fion
IN WITNESS WI-W~REO1~, City and Consultant have executed this Fi t Amendment to
the Agreement thereby indicating that they have read and und~tood t same, and
indicate their full and complete consent to its terms:
Dated ,2000 City of Chula
By:
Shirley I~ ton, Mayor
Attest:
Susan Bigelow, City Clerk
Approved as tO form:
John M. Kaheny, City Attorney
Dated:
Brown Diven& E ssel LLP
By: ~
H:~ollm\enginmr~u:kl~v~lonna~tldiven,d{m Fh~al 519100
SIGNATURE PAGE
TO FIRST AMENDMENT TO
AGREEMENT BETWEEN
CITY OF CHULA VISTA AND BROWN, DIVEN, HESSELL & BREWER LLP
For Bond Counsel Services related to various financings
Dated March 16, 1999 and approved by Resolution No. 19388
1N WITNESS WHEREOF, City and Consultant have executed this First Amendment to
the Agreement thereby indicating that they have read and understood the same, and
indicate their full and complete consent to its terms:
Dated ,2000 City of Chula Vista
By:
Shirley Horton, Mayor
Attest:
Susan Bigelow, City Clerk
Approved as to form:
John M. Kaheny, City Attorney
Dated:
Brown Diven& Hessel LLP
By:
Warren Diven
HShome\engineer\landdev\donnas\SBdiven.doc Final 5/9/00
FIRST AMENDMENT TO AGREEMENT
BETWEEN
CITY OF CHULA VISTA AND FIELDMAN, ROLAPP & ASSOCIATES
Dated March 16, 1999 and approved by Resolution No. 19388
This first amendment to the agreement ("Agreement"), dated for the
purposes of reference only, and effective as of the date last executed, and is made with
reference to the following facts:
RECITALS
WHEREAS, the City of Chula Vista, by Resolution 19388 on March 16, 1999, approved
an Agreement with Fieldman, Rolapp & Associates for financial advisory services for the
formation of Commtmity Facilites Districts and the sale of Bonds for infrastructure
fmancing in the Otay Ranch Territory; and
WHEREAS, there is a need for these same services related to a community facility
district in Sunbow II adjacent to the Otay Ranch territory; and
WHEREAS, Consultant was selected based on the quality of previous similar work
performed in the City; and
WHEREAS, the consultant selection process was waived due to (1) the need to expedite
the formation of the proposed Community Facilities District 2000-1 in order to meet an
August deadline to sell bonds and the City's consultant selection process takes up to
three months, (2) Consultant's familiarity with the City and recent £mancing districts and
knowledge of the current and future development issues in the Eastern Territories, and (3)
Consultant's fees are competitive;
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby
mutually agree as follows:
1. Section 7 of Exhibit A of the Agreement is hereby amended and restated to read in its
entirety as follows:
7. General Duties:
The Consultant shall perform all the duties and services specifically set forth
herein and shall provide such other services as it deems necessary or advisable, or
are reasonable and necessary to accomplish the intent of this Agreement in a
manner consistent with the standards and practice of professional f'mancial
advisors.
HShome\engineer\landdev\donnas\SBs&y.doc Final 5/9/00
The City may, with the concurrence of Consultant, expand this Agreement to
include any additional services not specifically identified within the terms of this
Agreement.
Consultant services axe necessary to form the Community Facilities District(s)
and to sell bonds in the Otay Ranch territory and Sunbow II territory.
2. Section 1 I, subsection A of Exhibit A of the Agreement is hereby amended and
restated to read in its entirety as follows:
A. Fee for Formation Services
Fees for services rendered hereunder will be paid at then current hourly rates;
provided, however, that the ma~ximum fee to be paid under this paragraph shall
not exceed $15,000 for each Community Facilities District, except if the election
ultimately authorizing issuance of bonds and special tax levy is not approved
within five months of authorization to proceed, in which case the fee limitation
may be increased an additional $3,000 by mutual consent for each full_ or partial
month until the special tax levy is approved.
3. Except as expressly provided herein all other provisions of the original Agreement
shall remain in full force and effect.
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H:\home\engineer\landdev\donnas\SBs&y.doc Final 5/9/00
MIqY 10 2888 89:27 FR F~LD~1RN-ROLRPP 949474677~ TO ~61~6~S171 P.82/8~
~IE 12:~G F~ Gl~ 691 ~171 CHU~
~0
A~T
CITY O~ C~LA VISTA M ~B~. ROLA~
IN WITNESS WI'~I~EOF, City and Co~-ul~a~t kave execu~cd ~his Firi~ AmcnctmcTa! to
~he Ag~eme~t thereby iz~licafing ~ml they have ~ and trade,stud ~c same, mad
imdica~ ~heir full and complcm co~a~ ~o i~ t.~s:
Dated j 2000
By:
Shirley Ho::ton, Mayor
Susan Bigeluw, CiW Clerk
Approved as to form:
~ohn M, Kal~y, City A'~oruey
Dat~:
Th~nas O. J~ m,~ Priacipal
H:~home\~aginc~r~lamdd~v\dann~SBs&y,do~ l:imal 5/9/00
FIRST AMENDMENT TO AGREEMENT
BETWEEN CITY OF CHULA VISTA AND STONE AND YOUNGBERG LLC
Dated March 16, 1999 and approved by Resolution No. 19388
This first amendment to the agreement ("Agreement"), dated for the
purposes of reference only, and effective as of the date last executed, and is made with
reference to the following facts:
RECITALS
WHEREAS, the City of Chula Vista, by Resolution 19388 on March 16, 1999, approved
an Agreement with Stone and Youngberg LLC for underwriting services related to
various community facility district financings for infrastructure in the Otay Ranch
territory to take place over the term of the agreement; and
WHEREAS, there is a need for these same services related to a community facility
district in Sunbow II adjacent to the Otay Ranch territory;
WHEREAS, Consultant was selected based on the quality of previous similar work
performed in association with the City's formation of various other financing districts;
and
WHEREAS, the consultant selection process was waived due to (I) the need to expedite
the formation of the proposed Community Facilities District 2000-1 in order to meet an
August deadline to sell bonds and the City's consultant selection process takes up to three
months, (2) Consultant's in depth knowledge of the Eastern Territories due to their
involvement in many of the recent City's financing districts which enables the Consultant
to market the bonds at the lowest interest rates, and (3) the Consultant's fees are
competitive;
NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby
mutually agree as follows:
1. Section 7 of Exhibit A of the Agreement is hereby amended and restated to read in its
entirety as follows:
7. General Duties:
"Consultant" shall provide investment banking services to assist in the development
of a finance plan, evaluate financial alternatives, conduct due diligence and to
underwrite bonds to be issued by the City through one or more community facilities
districts for the purpose of £mancing necessary infrastructure in the Otay Ranch
territory and Sunbow II territory. In its capacity as the City's investment banker,
Consultant will be acting as a principal in the anticipated purchase of municipal
bonds from the City and not as an advisor or other fiduciary of the City.
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As investrnent banker to the City, Consultant will commit its full resources and
energies to assist the City in developing, evaluating and implementing a plan to
finance necessary infrastructure in the Otay Ranch territory and Sunbow II territory.
In conjunction ~vith other professionals engaged by the City, Consultant will evaluate
alternatives for financing important public facilities required to accommodate
development of the Otay Ranch property, Sunbow II property and other neighboring
land in eastern Chula Vista as designated by the City.
Consultant will use its best professional efforts to accomplish the formal marketing of
any securities sold to the public, which will be accomplished in a manner and on a
schedule consistent with sound investment banking and underwriting principles.
Consultant will provide continuing investment banking services to the City during the
period of this contract. Development of the Otay Ranch is a substantial undertaking
which is expected to occur over a period of 10 or more years during ~vhich a variety
of business cycles and financial climates may be expected. The City and Consultant
each desire to enter into this agreement to provide mutual assurances related to the
consistency and quality of investment banking services ~vhich will be required. Such
services shall include, but not be limited to, initial development of the finance plan,
evaluation and adjustments to the plan to respond to changing conditions,
communications with investors and financial analyses relating to refinancing and
other financial strategies.
2. Section 8, Paragraph A of Exhibit A of the Agreement is hereby amended and
restated in its entirety to read as follows:
8. Scope of Work and Schedule:
A. The following is a list of banking services to be provided by Consultant.
This list is not meant to be all-inclusive, but does represent typical
services required to develop and evaluate financing alternatives and to
implement the City's infrastructure financing program for the Otay Ranch
properties and Sunbow II territory.
l) Consultant will work with City staff and outside professionals to
develop a plan of finance for the Project which meets the goals of
the City, affected property owners and the municipal bond
marketplace. In response to the long term nature of the Project,
Consultant will provide ongoing assistance to the City in
evaluating and adjusting the finance plan to meet changing
conditions.
2) As requested by the City, Consultant will assist in defining the
scope of services required by such outside professionals as
assessment district engineers, land absorption consultants, real
estate appraisers, special tax consultants and those tasked with both
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initial and ongoing disclosure responsibilities. While it is expected
that such professionals will contract with and work for the City,
Consultant will. be available to consult and work with other
members of the City's finance team in order to ensure the proper
financing of the Project.
3) Completeness or accuracy of documents prepared by the City or
other professionals, consultant, consultant will review and
comment on such documents which are delivered to Consultant
and are necessary for the proper execution of Consultant's
responsibilities as the City's investments banker. Consultant, in
conjunction with its counsel, will assist the City, its counsel and
advisors in preparing the Official Statement(s) (preliminary and
final versions, respectively) for sale of the securities in accordance
with the standards Of Rule 15c2-12 of the Securities Exchange
Commission and other applicable securities laws. The City agrees
to participate in the preparation of the Official Statement by
providing pertinent information to be included therein and agrees
to review the Official StatementS(g) for accuracy and
completeness. The Official Statement(s) will include a description
of the securities, the issuer and pertinent financial and economic
datea relating to the City and the surrounding area. The approval;
execution and delivery of the Official Statement(s) will be duly
authorized by the City for use by Consultant in marketing the
securities.
4) Consultant will assist the City in preparing material for revie~v by
credit rating agencies, bond insurance companies and investors as
appropriate.
5) Consultant will conduct such bond marketing activities as the City,
its financial advisor and Consultant agree are necessary or
desirable in marketing each bond issue. For each bond issue, the
goal will be to distribute securities to suitable investors at the most
favorable interest rates practicable under the market conditions
existing at the time of their sale. The City agrees to assist
Consultant in making presentations and information available to
investors and others as Consultant reasonably requests.
6) Consultant will assist in the preparation and documentation
necessary to timely close each bond issue and shall timely deliver
the necessary funds to purchase each bond issue in accordance
with the terms of the respective Bond Purchase Agreements.
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7) In order to best meet the goals of the City and property owners in
the various financing districts, the City and Consultant will meet as
required to inform each other on economic, enviroranental,
financial or other conditions affecting the successful completion of
the Project or the credit quality of outstanding bonds. In this
regard, Consultant will advise the City of opportunities for
refinancing or other financial strategies to enhance the successful
completion of the transactions or reduce taxes for affected property.
owners.
3. Except as expressly provided herein all other provisions of the original Agreement
shall remain in full force and effect.
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SIGNATURE PAGE
TO FIRST AMENDMENT TO
AGREEMENT
BETWEEN CITY OF CHULA VISTA AND STONE AND YOUNGBERG LLC
Dated March 16,1999 and approved by Resolution No. 19388
1N WITNESS WHEREOF, City and Consultant have executed this First Amendment to
the Agreement thereby indicating that they have read and understood the same, and
indicate their full and complete consent to its terms:
Dated _, 2000 City of Chula Vista
By:
Shirley Horton. Mayor
Attest:
Susan Bigelow, City Clerk
Approved as to form:
John M. Kaheny, City Attorney
Dated: ],~'1~.~ ~r ,:,,2~0o StoneandY~toungbergLLC/
L. William Huck
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