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HomeMy WebLinkAbout2008/06/10 Item 5 CHULA VISTA REDEVELOPMENT AGENCY AGENDA STATEMENT RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA WANING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING AN AGREEMENT WITH ECONOMIC AND PLANNING SYSTEMS, INe. FOR FINANCIAL FEASIBILITY ANALYSIS FOR PROJECTS IN THE MERGED BA YFRONT/TOWN CENTRE I PROJECT AREA RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA WAIVING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING AN AGREEMENT \\11TH ECONOMIC AND PLANNING SYSTEMS, INe. FOR FINANCIAL FEASIBILITY ANAL YSIS FOR PROJECTS IN THE MERGED PROJECT AREA DIRECTOR OF FINA.NCE/TREASURER-f\k.. ASSISTANT DIRECTOR OF REDEVELOPMENT AND HOUSING --;~ \!\/ C\)V CITY MANAGER ~~. J \.' 4/5THS VOTE: YES D NO ~ ITEM TITLE: SUBMITTED BY: REVIEWED BY: JUNE 10,2008, Item S SUMMARY Staff is proposing an agreement with Economic and Planning Systems (EPS) for ongoing professional services on an as-needed basis for the Redevelopment Agency for consultation on fmancing strategies and fiscal and economic consulting services related to new development ",ithin the Bayfront Master Plan area that includes the development proposal by Gaylord Entertainment for a hotel and convention center. Services for EPS will include analysis of other development proposals throughout the Agency proj ect areas, ENVIRONMENTAL REVIEW Not applicable, 5-1 I . June 10, 2008 Item~ Page 2 of2 RECOMMENDATION That the Redevelopment Agency adopt the resolution. BOARDS/COMMISSION RECOMMENDATION The Chula Vista Redevelopment Corporation adopted a resolution recommending approval of a contractual relationship with EPS on May 22, 2008. DISCUSSION On July 25, 2006, the City Council and Redevelopment Agency jointly approved a Letter of Intent ("Lor") between the City, Agency, San Diego Unified Port District, and Gaylord Entertainment Company establishing a framework and foundation for negotiations on the development of a major hotel, convention center, and retail space on the Chula Vista BayfTont. Since then, City staff has been working closely with Economic and Planning Systems (EPS) to analyze and negotiate key deal points of the development proposal, as outlined in the LOr. EPS has extensive experience in real estate development and has been instrumental in the City and Agency negotiations with the Gaylord Entertainment Company. To facilitate ongoing negotiations with Gaylord Entertainment, staff is seeking to renew the agreement with EPS that expired in December 2007. Staff is recommending approval of the agreement in a not-to-exceed amount of $105,000. There are existing funds in the Redevelopment Agency budget and approval of the agreement would not require an additional appropriation of funds. The proposed EPS agreement would also include $40,000 that would allow EPS to continue to provide consultant support to the Agency to analyze the financial feasibility of development proposals in the City's redevelopment project areas. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the Redevelopment Agency Members and has found a conflict exists, in that Redevelopment Agency Member Castaneda has property holdings within 500 feet of the boundaries of the Merged Bayfront/Town Centre I Project Area and Redevelopment Agency Members Ramirez and Rindone have property holdings within 500 feet of the boundaries of the Merged Project Area. FISCAL IMPACT The total amount of the agreement for Economic and Planning Systems is $105,000 and will use (Bayfront/TCI $65,000 and Merged Project Area $40,000) using existing appropriations within the current year Agency budget. ATTACHMENTS Economic and Planning Systems, Inc. Agreement Prepared by: Phillip Davis, Assistant Director of Finance, Finance Department 5-2 RDA RESOLUTION NO. 2008- RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA WAIVING THE FORMAL CONSULT ANT SELECTION PROCESS AND APPROVING AN AGREEMENT WITH ECONOMIC AND PLANNING SYSTEMS, INC. FOR FINANCIAL FEASIBILITY ANALYSIS FOR PROJECTS IN THE MERGED BAYFRONT/TOWN CENTRE I PROJECT AREA WHEREAS, the Redevelopment Agency of the City of Chula Vista (Agency) and Economic and Planning Systems, Inc. (EPS) entered into an Agreement dated JLme 28, 2005 (Original Agreement), where EPS agreed to provide independent economic advice in support of future dealings regarding economic and fiscal relationships among the San Diego Unified Port District (Port), prospective lessees of Port-controlled lands, private owners of property within the Bayfront Master Plan area, and the City; and WHEREAS, the Agency and EPS entered into the First Amendment to the Original Agreement dated January 10, 2006, where EPS agreed to develop a Fiscal Impact Model to analyze the fiscal impacts of new development within the Bayfront Master Plan area; and WHEREAS, the Agency and the City, along with the Port, are in negotiations with Gaylord Entertainment Company (Gaylord) for the proposed development of a hotel and convention center in the Merged BayfrontlTown Centre I Redevelopment Project Area; and WHEREAS, the Agency and EPS entered into a Second Amendment to the Original Agreement dated March 8, 2007, where EPS agreed to analyze the financial feasibility of the proposed Gaylord development using its Fiscal Impact Model and to conduct a peer review on the Economic Research Associates fiscal model and pro forma to analyze development proposals in the other Redevelopment project areas; and WHEREAS, the Original Agreement, including the amendments to that Agreement, expired on December 31,2007; and WHEREAS, to further the negol1atlons with Gaylord, staff recommends that EPS continue to assist with negotiations of the proposed Gaylord development using its Fiscal Impact Model, and WHEREAS, staff recommends that the Agency waive the formal consultant selection process outlined in Municipal Code section 2.56.110 because the proposed scope of work for the agreement with EPS is a natural extension of its past work for the Agency and the City, making it impractical to solicit proposals. 5-3 I. RDA Resolution No. 2008- Page 2 NOW THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of Chula Vista that it waives of the formal consultant selection process and approves an agreement with Economic and Planning Systems, Inc. for financial feasibility analysis for projects in the Merged Bayfront/Town Centre I Project Area. Presented by Approved as to form by Maria Kachadoorian Director of Finance J~ lL ~ /I-rv t/ General Counsel J-\AW\I1\~y\RESO\AGREE'''IENTS\E~ul1<'mic anu PIUllllinJ!. SyslO:Il1S Bilyfn:'nl TCI_Q()-lo.l~~4 .,.; RDA RESOLUTION NO. 2008- RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA WAIVING THE FORMAL CONSULTANT SELECTION PROCESS AND APPROVING AN AGREEMENT WITH ECONOMIC AND PLANNING SYSTEMS, INe. FOR FINANCIAL FEASIBILITY ANALYSIS FOR PROJECTS IN THE MERGED PROJECT AREA WHEREAS, the Redevelopment Agency of the City of Chula Vista (Agency) and Economic and Planning Systems, Inc. (EPS) entered into an Agreement dated June 28, 2005 (Original Agreement), where EPS agreed to provide independent economic advice in support of future dealings regarding economic and fiscal relationships among the San Diego Unified Port District (Port), prospective lessees of Port-controlled lands, private owners of property within the Bayfront Master Plan area, and the City; and WHEREAS, the Agency and EPS entered into the First Amendment to the Original Agreement dated January 10, 2006, where EPS agreed to develop a Fiscal Impact Model to analyze the fiscal impacts of new development within the Bayfront Master Plan area; and WHEREAS, the Agency and the City, along with the Port, are in negotiations with Gaylord Entertainment Company (Gaylord) for the proposed development of a hotel and convention center in the Merged Bayfront/Town Centre I Redevelopment Project Area; and WHEREAS, the Agency and EPS entered into a Second Amendment to the Original Agreement dated March 8, 2007, where EPS agreed to analyze the financial feasibility of the proposed Gaylord development using its Fiscal Impact Model and to conduct a peer review on the Economic Research Associates fiscal model and pro forma to analyze development proposals in the other Redevelopment project areas; and WHEREAS, the Original Agreement, including the amendments to that Agreement, expired on December 31, 2007; and WHEREAS, staff wishes to use EPS to analyze the financial feasibility of development proposals in the Merged Project Area; and WHEREAS, staff recommends that the Agency waive the fonnal consultant selection process outlined in Municipal Code section 2.56.110 because the proposed scope of work for the agreement with EPS is a natural extension of its past work for the Agency and the City, making it impractical to solicit proposals. 5-5 I . RDA Resolution No. 2008- Page 2 NOW THEREFORE, BE IT RESOLVED by the Redevelopment Agency of the City of Chula Vista that it waives of the formal consultant selection process and approves an agreement with Economic and Planning Systems, Inc. for financial feasibility analysis for projects in the Merged Project Area. Presented by Approved as to form by ,-.;~ (~"fr'- Maria Kachadoorian Director of Finance General Counsel J"Alturm:yIRESO\AGREEiVlENTSIEcunumic Jl1d Planning Systems MeryetUl6-11J-OSdllC5 _ 6 -I'-'~ THE A TT ACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON AFPROV AL BY THE CITY COUNCIL ~.) !l /I ~ ' '( YA.-, rx /_ A ,~ j-v-.- City Attorney Dated: fc/tj/DJ , ' Agreement between Redevelopment Agency of the City of Chula Vista and Economic and Planning Systems, Inc. for the provision of Consulting Services consisting of economic evaluation and strategic support for the City in the matter of the Bayfront Master Plan and attendant development proposals. 5-7 I . Parties and Recital Page(s) Agreement between Redevelopment Agency of the City of Chula Vista and ECONOMIC AND PLANNING SYSTEMS, INC For the provision of Consulting Services consisting of economic evaluation and strategic support for the City in the matter of the Bayfront Master Plan and attendant development proposals. This agreement ("Agreement"), dated June 10,2008 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: Recitals WHEREAS, the Redevelopment Agency of the City of Chula Vista ("Agency") and Economic and Planning Systems, Inc. ("EPS") entered into an Agreement dated June 28, 2005 ("Original Agreement") where EPS agreed to provide independent economic advice in support of future dealings regarding economic and fiscal relationships among the San Diego Unified Port District ("Port"), prospective lessees of Port-controlled lands, private owners of property within the Bayfront Master Plan area, and the City; and WHEREAS, the Agency and EPS entered into the First Amendment to the Original Agreement dated January 10,2006, where EPS agreed to develop a Fiscal Impact Model to analyze the fiscal impacts of new development within the Bayfront Master Plan area; and WHEREAS, the Agency and the City, along with the Port, are in negotiations with Gaylord Entertainment Company ("Gaylord") for the proposed development of a hotel and convention center in the Bayfront Redevelopment Project Area; and WHEREAS, the Agency and EPS entered into a Second lunendment to the Original Agreement dated March 8, 2007, where EPS agreed to analyze the financial feasibility of the proposed Gaylord development using its Fiscal Impact Model and to conduct a peer review on the Economic Research Associates fiscal model and pro forma to analyze development proposals in the other Redevelopment project areas; and WHEREAS, the original agreement including the amendments to that agreement expired on December 31,2007, and WHEREAS, to further the negOtlatlOllS with Gaylord, staff recommends that EPS continue to assist with negotiations of the proposed Gaylord development using its Fiscal Impact Model, and 5-8 Page 1 I . WHEREAS, staff reco=ends the Agency waive the formal consultant selection process outlined in Municipal Code section 2.56.110 because the proposed scope of work for the agreement with EPS is a natural eJ<.:tension of its past work for the Agency and the City, making it impractical to solicit proposals. 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.) 5-9 Page 2 ..,....' 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 an.d 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 perfonn same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A, Paragraph IOCe), unless a separate fixed fee is otherwise agreed upon. All 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. 5-10 Page 3 I . F. Insurance Consultant must procure insurance against claims for injuries to persons or damages to property that may arise from or in connection \>lith the performance of the work under the contract and the results of that work by the Consultant, his agents, representatives, employees or subcontractors and provide documentation of same prior to commencement of work. The insurance must be maintained for the duration of the contract. Minimum Scope of Insurance Coverage must be at least as broad as: (1) Insurance Services Office Commercial General Liability coverage (occurrence Form CGO001). (2) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code I (any auto). (3) Workers' Compensation insurance as required by the State ofCalifomia and Employer's Liability Insurance. (4) Professional Liability or Errors & Omissions Liability insurance appropriate to the Consultant's profession. Architects' and Engineers' coverage is to be endorsed to include contractualliabilitv. . . Minimum Limits of Insurance Contractor must maintain limits no less than: I. General Liability: (Including operations, products and completed operations, as applicable) 2. Automobile Liability: 3. Workers' Compensation Employer's Liability: 4. Professional Liability or Errors & Omissions Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance \>lith a genera! aggregate limit is used, either the general aggregate limit must apply separately to this projectllocation or the general aggregate limit must be twice the required occurrence limit. $1,000,000 per accident for bodily injury and property damage. Statutory $1,000,000 each accident $1,000,000 disease-policy limit $1,000,000 disease-each employee $1,000,000 each occurrence Deductibles and Self-Insured Retentions 5-11 Page 4 Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer \>lill reduce or eliminate such deductibles or self-insured retentions as they pertain to the City, its officers, officials, employees and volunteers; or the Consultant will provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Other Insurance Provisions The general liability, automobile liability, and where appropriate, the worker's compensation policies are to contain, or be endorsed to contain, the following provisions: (l) The City of Chula Vista, its officers, officials, employees, agents, and volunteers are to be named as additional insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Consultant, where applicable, and, with respect to liability arising out of work or operations performed by or on behalf of the Consultant, including providing materials, parts or equipment furnished in connection with such work or operations. The general liability additional insured . coverage must be provided in the form of an endorsement to the contractor's insurance using ISO CG 2010 (l1l85) or its equivalent. Specifically, the endorsement must not exclude Products/Completed Operations coverage. (2) The Consultant's General Liability insurance coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance of the contractor and in no way relieves the contractor from its responsibility to provide insurance. (3) The insurance policy required by this clause must be endorsed to state that coverage will not be canceled by either paIty, except after thirty (30) days' prior written notice to the City by certified mail, return receipt requested. (4) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code. (5) Consultant's insurer will provide a Waiver of Subrogation in favor of the City for each required policy providing coverage during the life of this contract. If General Liability, Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are written on a claims-made form: (l) The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. (2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract work. 5-12 Page 5 I . (3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (4) A copy of the claims reporting requirements must be submitted to the City for review. Acceptability of Insurers Insurance is to be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of no less than A V. If insurance is placed with a surplus lines insurer, insurer must be listed on the State of California List of Eligible Surplus Lines Insurers ("LESLI") 'With a current A.M. Best's rating of no less than A X. Exception may be made for the State Compensation Fund when not specifically rated. Verification of Coverage Consultant shall furnish the City 'With original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on insurance industry forms, provided those endorsements or policies conform to the contract requirements. All certificates and endorsements are to be recei ved and approved by the City before work commences. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. Subcontractors Consultants must include all subconsultants as insureds under its policies or fumish separate certificates and endorsements for each subconsultant. All coverage for subconsultants are subject to all of the requirements included in these specifications. G. Security for Performance (1) Performance Bond In the event that Exhibit A, at Paragraph 18, 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 in the form prescribed by the City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, httD://www.fms.treas.gov/c570, and whose underwriting limitation is sufficient to issue bonds in the amount required by the agreement, and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided other'Wise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the 5-13 Page 6 limits so required. Form must be satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Exhibit A, Paragraph 18. (2) Letter of Credit In the event that Exhibit A, at Paragraph 18, 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 Exhibit A, Paragraph 18. (3) Other Security In the event that Exhibit A, at Paragraph 18, 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 irrunediately 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. H. 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 Defmed 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 9, and with the further understanding that delay in the provision of these materials beyond thirty (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 17, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 17, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth 5-14 Page 7 I . in Exhibit A, Paragraph 10, 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 18 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 11. 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 17(C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 12, as said party's contract administrator who is authorized by said parry to represent them in the routine administration of this agreement. 4. Term This Agreement shall expire on December 31, 2009. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 13. 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 resuTI 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 13 ("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 5-15 Page 8 If Consultant is designated on Exhibit A, Paragraph 14, 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 14 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 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 that 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 Detined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defmed Services, ("Prohibited Interest"), other than as listed in Exhibit A, Paragraph 14. 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 5-16 Page 9 I . 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 twelve months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest ""ithin the Term of this Agreement, or for twelve months after the expiration of this Agreement, except ""ith the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party that 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 ""ithout limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Consultant, and Consultant's employees, subcontractors or other persons, agencies or firms for whom Consultant is legally responsible in connection with the execution of the work covered by this Agreement, except only for those claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole v.,illful misconduct of the City, its officers, employees. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, ofticers, or employees which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. With respect to losses arising from Consultant's professional errors or omissions, 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) except for those claims arising from the negligence or willful misconduct of 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. Consultant's obligations under this Section shall not be limited by any prior or subsequent declaration by the Consultant. Consultant's obligations under this Section shall survive the termination of this Agreement. For those professionals who are required to be licensed by the state (e.g. architects, landscape architects, surveyors and engineers), the following indemnification provisions should be utilized: (1) Indemnification and Hold Harmless Agreement With respect to any liability, including but not limited to claims asserted or costs, losses, attorney fees, or payments for injury to any person or property caused or claimed to be caused by the acts or omissions of the Consultant, or Consultant's employees, agents, and officers, arising 5-17 Page 10 .-.".."',", out of any services performed involving this project, except liability for Professional Services covered under Section 7.2, the Consultant agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, or employees from and against all liability. Also covered is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination 'With the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. The Consultant's duty to indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or sole willful misconduct of the City, its agents, officers or employees. This section in no way alters, affects or modifies the Consultant's obligation and duties under Section Exhibit A to this Agreement. (2) Indemnification for Professional Services. As to the Consultant's professional obligation, work or services involving this Project, the Consultant agrees to indemnify, defend and hold harmless the City, its agents, officers and employees from and against any and all liability, claims, costs, and damages, including but not limited to, attorneys fees, that arise out of, or pertain to, or relate to the negligence, recklessness or willful misconduct of Consultant and its agents in the performance 0 f services under this agreement, but this indemnity does not apply liability for damages for death or bodily injury to persons, injury to property, or other loss, arising from the sole negligence, willful misconduct or defects in design by City or the agents, servants, or independent contractors who are directly responsible to City, or arising from the active negligence of City. 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 tennination. 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, elTors, 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 5-18 Page 11 I . City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or notation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defmed Services identified in Exhibit A, Paragraph 16 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, infomlation, 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 011.Iy 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 tl1e City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures 5-19 Page 12 No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in v.Titing and filed with the City and acted upon by the City in accordance v.ith the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith v.ith 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 Defmed 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 15 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. 5-20 Page 13 I . 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 LawN enue 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. Neil.1 page is signature page.) 5-21 Page 14 Signature Page to Agreement between Redevelopment Agency of the City of Chula Vista and ECONOMIC AND PLANNING SYSTEMS, INC. For the provision of Consulting Senices consisting of economic evaluation and strategic support for the City in the matter of the Bayfront Master Plan and attendant development proposals. 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: City of Chula Vista By: Cheryl Cox, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: City Attorney Dated: Economic and Planning Systems, Inc. BY:\ / ~d. Lu#j~ Jim Musbach, Managing'Principal Exhibit List to Agreement ( X) Exhibit A. ~ l.A9-.. PJd1ard Berkson Princlpal Page 15 5-22 I . Exhibit A to Agreement between Redevelopment Agency of the City of Chula Vista and ECONOMIC AND PLANNING SY~TEMS, INC. 1. Effective Date of Agreement: June 10,2008 2. City-Related Entity: ( ) City of Chula Vista, a municipal chartered corporation of the State of California ( X) 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: Economic and Planning Systems, Inc. 5. Business FOlm of Consultant: ( ) Sole Proprietorship ( ) Partnership ( X ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 2501 Ninth Street, Suite 200 Berkeley, California 94710-2515 Phone: 510-841-9190 Fax: 510-841-9208 5-23 Page 16 ,c... 7. General Duties: Consultant shall review the fiscal and economic projections for development projects within the City's redevelopment project areas. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Consultant shall perform all of the following to the satisfaction of the Director of Finance and the Assistant Director of Redevelopment and Housing. Under direction of City staff, specitlc tasks and sub-tasks tasks shall include: Consultant shall provide ongoing analysis, strategic input and negotiation support as requested by the City for the Bayfront Master Plan and/or projects within Western Chula Vista. This work may include, but not be limited to: o Analysis of specific marketing, fmancial and organizational issues related to the proposed Gaylord fmancing structure; o Analysis and response to concepts and refmements put forth by the Port, Gaylord, or other stakeholder; o Strategic and procedural advice on the proposed Gaylord development and on other prospective development and/or prospective Port tenant negotiations; o Fiscal and economic analyses of the proposed Gaylord development and other specific development concepts; o Strategic and procedural advice on inter-jurisdictional financial and governance agreements; and o Assessment and specification of fees or other project-specific funding mechanisms associated with the proposed Gaylord development and other projects. B. Date for Commencement of Consultant Services: ( X ) Same as Effective Date of Agteement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: N/A 5-24 Dn,...."", 1"7 I . Deliverable No. I: Deliverable No.2: Deliverable No.3: D. Date for completion of all Consultant services: December 31, 2009. 5-25 0"''''''010 ~ 9. Materials Required to be Supplied by City to Consultant: N/A 10. Compensation: A. ( ) Single Fixed Fee Arrangement.3 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 Fi.xed 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 that 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, 3. The difference between a single fixed fee amount with phased payments and a phased fixed fee amount is that, in a single fixed fee amount all of the work is required for all of the compensation. Payments are phased to help with consultant cash flow. In a phased fixed fee arrangement, the City has the authority to cancel or require performance under subsequent phases, so that the compensation is due just for the phase of work required, and not for the total amount. 5-26 Page 19 I . 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 1. 2. Fee for Said Phase $ $ $ , ;>. ) 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 that 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 Defmed Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (1) (X) Not-to-Exceed Limitation on Time and Materials Anangement 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 Defmed Services herein required of Consultant for $105,000, including all Materials, and other "reimbursables" ("Maximum Compensation"). (2) ( ) Limitation without Further Authorization on Time and Materials Arrangement 5-27 Page 20 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. Category of Employee Managing Principal Senior Vice President Associate Rate Schedule Name of Consultant Hourly Rate $ 260 -295 $ 240 $ 165 $75-105 $ 75 Research Analyst Production Staff J. Musbach R. Berkson R. Benassiri M. Nimon Various ( ) Hourly rates may increase by 6% for services rendered after [month], 20_, if delay in providing services is caused by City. 11. 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 $ $ $ $ $ $ $ $ $ $ () 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 $ 12. Contract Administrators: City: Eric Crockett, Assistant Director of Redevelopment and Housing Consultant: Jim Musbach, Managing Principal, EPS, Inc. 5-28 Page 2 I I . 13. Liquidated Damages Rate: ( ) $ ( ) Other: per day. 14. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: ( X ) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer ( ) Category No.!. Investments and sources of income. ( ) Category No.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ( ) Category No.4. Investments in business entities and sources of income that 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: 5-29 Page 22 . .<.. .. ,'.,. .~ 15. ( ) Consultant is Real Estate Broker and/or Salesman 16. Permitted Subconsultants: 1 7. B ill Processing: A. Consultant's Billing to be submitted for the following period of time: ( X ) Monthly ( ) Quarterly ( ) Other: B. Day of the Period for submission of Consultant's Billing: ( X) First of the Month ( ) 15th Day of each Month ( ) End of the Month ( ) Other: C. City's Account Number: 18. Security for PerfOlmance ( ) 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 to the satisfaction of the Director of Finance/Treasurer and Assistant Director of Redevelopment and Housing. ( ) Other: 5-30 Page 23 I .